Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, Super. Ct. No. 37-2009-00103575- CU-BC-CTL Judith F. Hayes, Judge.
McCONNELL, P. J.
Royal Jet, Inc. (Royal Jet), assigned its rights under a master lease of Gillespie Field property to Jet Air FBO, LLC (Jet Air), and then sublet a portion of that property from Jet Air. A dispute arose concerning Royal Jet's access to the property, and Royal Jet sued Jet Air for damages and equitable relief. On July 15, 2010, the trial court denied Royal Jet's motion for a preliminary injunction. On July 16 the court issued an ex parte order directing Jet Air to allow Royal Jet access to the "facility to conduct its business, including, but not necessarily limited to, use of the public restrooms and entry through front door." On August 19 the court appointed a special master to determine the meaning of "reasonable access" and what accommodations both parties could make to facilitate that access. Jet Air appealed the July 16 and August 19 orders. In its opening brief, Jet Air contended the court lacked jurisdiction to issue the July 16 order, which was made without notice and an opportunity to be heard, and the injunction was void for lack of an undertaking. On August 30, after the notice of appeal was filed, the trial court found that the July 16 order was not enforceable due to defective notice. The court also found that while the parties agreed to have a retired judge serve as mediator, there was no stipulation that he serve as a special master or referee to determine disputed issues.
Jet Air and Royal Jet have filed a "joint application and stipulation for reversal of judgment and for remand of action to the superior court...." According to the application, Royal Jet does not dispute the contentions in Jet Air's opening brief. The application states "[t]he parties take no position" whether Code of Civil Procedure section 128, subdivision (a)(8) applies, but "(A) each party independently certifies that it is unaware after reasonable diligence of any nonparty whose interests would be adversely affected by the reversal, and (B) there is no risk to the public trust from this stipulated reversal because the sole reason for it is to accelerate finality of disposition of an indefensible order, and it has no relationship to incentives for pretrial or other settlement." The parties also state that reversal will save the parties and this court time and resources. They stipulate to reversal of the July 16 and August 19, 2010, orders, without prejudice to any new application for injunctive relief, and immediate issuance of the remittitur, with each party to bear its own costs.
Code of Civil Procedure section 128, subdivision (a)(8) provides: "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." Those requirements have been satisfied in this case. We accept the stipulation and reverse the orders.
DISPOSITION
The July 16 and August 19, 2010, orders are reversed. The remittitur shall issue immediately. Each party shall bear its own costs.
WE CONCUR: NARES, J., McINTYRE, J.