OsoValleyGreenbelt Assn. v. Howell
Filed 3/9/07 Oso Valley Greenbelt Assn. v. Howell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
OSO VALLEY GREENBELT ASSOCIATION et al., Plaintiffs and Respondents, v. NANCY HOWELL et al., Defendants and Appellants. | G037242 (Super. Ct. No. 05CC07106) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Daniel Didier, Judge. Dismissed in part and reversed in part pursuant to Code of Civil Procedure section 128, subdivision (a)(8), and remanded with instructions.
Mahaffa & McNamara, Walt D. Mahaffa and Stephen D. McNamara for Defendants and Appellants.
Hart, King & Coldren and James S. Morse for Plaintiffs and Respondents.
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THE COURT:*
This is a dispute between Oso Valley Greenbelt Association and several of its members over the proper composition of its board of directors in 2005. Simply put, two elections were held, two boards were created, and a dispute arose as to which board, and thus which electees, had been properly elected board members. A judgment was entered which, among other things, found appellants were not the properly elected board and permanently enjoined them from engaging in certain specific actions, such as representing themselves as directors of the Association. An appeal was filed. The parties have now entered into a global settlement of the matter, including settlement of actions not a part of this appeal, and wish to put the entire matter behind them pursuant to the terms of that settlement. Accordingly, the parties filed a joint application and stipulation for reversal of the injunctive relief portion of the judgment only pursuant to Code of Civil Procedure section 128, subdivision (a)(8).
A reviewing court may reverse or vacate a judgment upon the stipulation of the parties if it finds both that [t]here is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, and that [t]he reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement. (Code Civ. Proc., 128(a)(8)(A) & (B).)
This court reviewed the notice of settlement and the joint application for reversal of the injunctive portion of the judgment. Given a new board was elected in 2006 and there is no suggestion appellants are representing or will represent themselves as members of the board of directors or otherwise interfere with the new board of directors, the reason for the permanent injunction has ceased. The parties point out, moreover, that the reversal of this portion of the judgment on appeal is likely given the errors the parties agree occurred, and thus the reversal of this portion of the judgment now will place the parties in the same position they would be if the appeal were successfully prosecuted and without the need for exhaustive and detailed briefing and the needless expenditure of private and judicial resources.
Based on the motion and accompanying documents, we find that there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal of the injunctive portion of the judgment, and that the reasons of the parties for requesting reversal of that portion outweigh the erosion of public trust that may result from its nullification and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement. Therefore, pursuant to the stipulation of the parties: (1) Paragraph 3 of the judgment filed April 12, 2006, including subparagraphs (a) through (g), is reversed and the matter is remanded to the superior court to strike Paragraph 3 of the judgment; (2) the remainder of the appeal is dismissed with prejudice; (3) in the interests of justice each side shall bear its own costs and attorney fees on appeal; and (4) the clerk shall issue the remittitur forthwith.
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* Before Sills, P. J., Aronson, J., and Ikola, J.
