Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC446971 Gloria Connor Trask, Judge.
Redwine and Sherrill and Scott R. Heil and Julianna K. Strong, for Plaintiff and Appellant.
Richards, Watson & Gershon and Mitchell E. Abbott, for Defendant and Respondent.
OPINION
Ramirez P.J.
This opinion approves a stipulated disposition, orders the superior court to enter a judgment revised pursuant to the parties’ stipulation, and affirms the revised judgment. (See Code Civ. Proc., § 128, subd. (a)(8).)
All further statutory references shall be to the Code of Civil Procedure unless otherwise indicated.
BACKGROUND
Beaumont-Cherry Valley Water District (District) appeals from a summary judgment in favor of the City of Calimesa (City) that District take nothing by its complaint against City. In its complaint District alleged that City’s requirements for issuance of an encroachment permit “unreasonably and unlawfully interfered” with District’s installation of two “24-inch water transmission pipelines” beneath a street in City. District asserted that City could not require District “to obtain [City’s] permission” or “an encroachment permit” “to construct its works across [City’s] roads.” If City could require an encroachment permit, District alleged that City had “a ministerial duty to issue [the] permit[] without imposing conditions or restrictions on [District’s] use of [the] permit or otherwise regulating [District’s] construction or use of its works . . . .” District claimed that City “may not in any way prevent, obstruct, regulate, or otherwise interfere with [District] in the construction or use of its works.” District made similar allegations in its second cause of action for injunctive relief.
We take judicial notice of the District’s “COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF” filed March 23, 2006, and the “ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (PROPOSED)” signed by the superior court judge September 25, 2007, and filed October 1, 2007, using the Riverside County Superior Court’s website. (. Evid. Code, §§ 452, subds. (c), (d), 459.)
In the order granting summary judgment, the court described a number of undisputed material facts as to which it found no triable issue of fact. District applied or reapplied for an encroachment permit in November and December 2005 and March 2006 for pipelines to be laid under Desert Lawn Drive within City. City notified District that the application was incomplete and that additional information was required including proof of insurance, a traffic control plan, and proof of a contractor’s license for the contractor selected to do the work. On March 22, 2006, the District authorized the excavation to install the pipelines, and City issued a stop-work notice to the District’s workers. In December 2006 City issued another stop-work notice as the District’s workers installing pipelines approached a portion of Cherry Valley Boulevard in City. The order also denied District’s cross-motion for summary adjudication.
District filed a notice of appeal, one short volume of reporter’s transcript was filed, and, before the appellant’s opening brief and appendix were due, the parties filed a “JOINT APPLICATION AND STIPULATION FOR REVERSAL OF JUDGMENT AND REMAND . . . FOR DISMISSAL WITH PREJUDICE . . . .” Appellant contends that the judgment should be reversed because of a number of prejudicial errors made by the trial court, some of which are enumerated in an appendix to the joint application. Respondent disagrees with appellant’s contentions, but “agrees that the terms of the settlement agreement make it unnecessary to rely on the judgment.” Both parties agree that the judgment should be reversed pursuant to the stipulation.
We now proceed to an evaluation of the stipulation to reverse under section 128, subdivision (a)(8).
APPROVAL OF STIPULATED REVERSAL
The proposed settlement calls for the vacation of the judgment appealed. Section 128, subdivision (a)(8) provides in relevant part: “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The 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.”
1. Effect on Nonparties and Public
Regarding the first finding, we must consider how the interests of nonparties or the public might be affected by the stipulation. (§ 128, subd. (a)(8)(A).) Specifically, we must inquire whether there is a “reasonable possibility that the interests” of a nonparty would be “adversely affected by [ ] reversal.” (Ibid.) Those nonparties would include, for example, contractors excavating the ditches, laying the pipelines, and backfilling the ditches, landowners adjacent to the District’s pipelines, as well as the District’s clients. The public would include both citizens of City and Riverside County.
The parties assert that there is no reasonable possibility that the stipulated reversal would adversely affect the interests of any nonparties or the public. “The stipulated reversal will not adversely affect the interests of nonparties or the public interest. In fact, both parties are public entities acting in furtherance of the interests of the public and their ratepayers and taxpayers. The dispute in this case arose from an inability to agree upon the conditions under which [District] could construct public works of improvement in the public roads within the boundaries of [City], a narrow dispute unlikely to affect any other nonparties.”
The court infers from this assertion that the District and City have settled on the manner in which District can install pipelines under City streets to insure the beneficial delivery of water in keeping with the protection and safety of the public during and after installation. This inference is strengthened by City’s insistence, throughout the events leading up to and during the litigation, on proof through the encroachment permit process that those interests be protected. District’s recognition of the need for “conditions under which [it] could construct public works of improvement” affords additional justification for that inference. Furthermore, that District repeatedly applied for an encroachment permit respecting the Desert Lawn Drive project and did not actually encroach on City territory in the Cherry Valley Boulevard project demonstrates District’s fundamental good faith desire to comply with City’s reasonable requirements.
We find no reasonable possibility exists that the proposed stipulated reversal would adversely affect the interests of nonparties or the public. (§ 128, subd. (a)(8)(A).)
2. Reasons for Stipulated Reversal
Regarding the second, two-pronged finding weighing the reasons for reversal against the effect on public trust and pretrial settlement (§ 128, subd. (a)(8)(B)), we must first identify the parties’ reasons for preferring stipulated reversal over dismissal.
We first observe that the parties contemplate a “reversal” in name only. In their application in the language quoted above, the parties have agreed upon conditions District must satisfy to beneficially and safely install pipelines, which preserves the essential character of the trial court’s ruling.
Second, the reversal contemplated by the parties is not on the merits, but rather on the ground of the mootness resulting from the settlement. As the parties jointly assert, “Furthermore, both parties agree that in light of the written settlement agreement, reliance on the judgment is no longer necessary . . . .” Thus, the judgment appealed no longer matters. (See, e.g., Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [parties’ settlement pending appeal rendered case moot, but Supreme Court did not dismiss so it could reach issues of continuing public importance]; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005 [settlement “commonly results in mootness”]; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 751, pp. 817-818.) Thus, in this case, the reversal is solely for the purposes of (1) avoiding any implication that the judgment appealed remains in effect and (2) restoring the case to the superior court’s jurisdiction so that it may dismiss the underlying superior court action as moot, which is suggested in the parties’ proposed order granting their joint application. (Compare Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134-135 [reversal with direction to dismiss moot superior court action]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 870, p. 929 [unqualified reversal implies new trial].)
Thus, the legitimate purposes of the stipulated reversal are to clarify that the parties’ settlement, as opposed to the judgment, will control their future interactions, and to restore the trial court’s jurisdiction so that it may finally dismiss this now fundamentally moot action.
3. Erosion of Public Trust
Taking first the issue of the erosion of public trust and postponing consideration of the effect on pretrial settlement incentives, public trust is eroded by a stipulated reversal when it appears that through settlement one party has paid off the other to obtain the particular result from the appellate court that the payor desired—the condemnation of the trial court’s judgment implied by the reversal. This reflects poorly on both courts implying that the trial court erred and that the appellate court’s reversal was groundless. (See Neary v. Regents of University of California (1992) 3 Cal.4th 273, 287, 293-294 (dis. opn. of Kennard, J.).)
However, as just explained, this stipulated reversal is not on the merits and does not reflect poorly on either the trial or appellate court, because the ground of the reversal is actually mootness, a mootness that results from the parties’ agreement on the conditions District is to satisfy when installing its pipelines. Therefore, no condemnation of the reversed judgment is implied, and this stipulated reversal does not erode public trust. (Compare Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1331 [“public trust . . . also enhanced by settlements of pending appeals and related litigation”].)
We find the significant reasons for the stipulated reversal outweigh the negligible possibility of the erosion of the public’s trust in the judiciary.
4. Disincentive for Pretrial Settlement
As the final task required by section 128, subdivision (a)(8), and subdivision (B) in particular, we must weigh the reasons for stipulating to reverse against “the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” The concern is that parties will avoid settling a case before the trial court decides it because the parties know they can appeal and then settle for a stipulated reversal of the disliked ruling. Pretrial settlement is, of course, more economical than settlement on appeal. (See Neary v. Regents of University of California, supra, 3 Cal.4th at pp. 288-291 (dis. opn. of Kennard, J.).)
In this case, the parties have settled before going to trial, so the stipulated reversal does not reduce the incentive for pretrial settlements.
Therefore, we find that the parties’ reasons for stipulating to this reversal outweigh the nonexistent disincentive of this stipulated reversal to pretrial settlement. (§ 128, subd. (a)(8)(B).)
We have completed the task set by section 128, subdivision (a)(8), and find that stipulated reversal is appropriate in this case.
DISPOSITION
Pursuant to the stipulation of the parties, the judgment is reversed. This reversal of the judgment does not indicate a ruling on the merits of the judgment, but serves only to vacate the judgment and restore jurisdiction to the trial court so that it may dismiss the action. The trial court is directed to dismiss the action as moot. In the interests of justice and pursuant to the parties’ proposed order, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) Also pursuant to the parties’ proposed order, the clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
We concur: McKinster J., Gaut J.