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Sulzmann v. Colton Joint Unified School Dist.

California Court of Appeals, Fourth District, Second Division
Sep 16, 2008
No. E040853 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. SCVSS117550. Christopher J. Warner, Judge.

Law Offices of Nigel Burns and Nigel Burns; Donna Bader for Plaintiff and Appellant.

McCune & Harber, Stephen M. Harber and Garrett J. Hines for Defendants and Respondents.


OPINION

Hollenhorst, Acting P.J.

This opinion approves a stipulated disposition, approves a disabled adult’s compromise (Prob. Code, § 3600), and orders the superior court to make the orders necessary to implement the compromise. (See Code Civ. Proc., § 128, subd. (a)(8).)

All further statutory references shall be to the Code of Civil Procedure unless otherwise indicated.

Plaintiff Kristen Sulzmann, through her guardian ad litem, sued defendants Colton Unified School District (School District) and several individual employees of the School District (Joseph Montes, Sabrina Chimienti, Nicole Reese, Russell Reese, Ovie Telley, and Margaret Bevill) for personal injury damages. Plaintiff alleged that, on November 20, 2003, after plaintiff collapsed on her high school campus, the negligence of the individual defendants in failing to perform cardiopulmonary resuscitation (CPR) or other life-saving measures, or to promptly summon medical assistance, caused brain damage resulting in a permanent vegetative state. The trial court granted defendants’ motions for summary judgment. On appeal, plaintiff contended that triable issues of fact existed as to defendants’ duties and as to causation that should have precluded summary judgment.

Russell Reese and Nicole Reese are brother and sister.

The parties frequently refer to defendant as Charles Telley. At his deposition, he stated his name was Ovie Carlos Telley.

We issued a tentative opinion January 16, 2008. By the tentative opinion and accompanying oral argument waiver notice, we indicated that we had preliminarily decided to affirm the summary judgments as to all defendants except Nicole Reese, Margaret Bevill, and the School District. As to these defendants, the tentative opinion contemplated reversals of the summary judgments against them based on tentative findings of triable issues of fact.

After issuance of the tentative opinion, the parties began settlement negotiations. We granted one continuance of oral argument because of settlement negotiations but denied a second request. Oral argument was held and the cause submitted June 30, 2008. Plaintiff filed on August 21, 2008, a notice of settlement and stipulation to dismiss the appeal as to all defendants. We received a letter by facsimile transmission on August 26, 2008, requesting that we immediately remand the case to the superior court so it could proceed immediately with a hearing to approve a disabled adult’s compromise. The ground for the request was that the appeal had been rendered moot by the settlement and should be dismissed pursuant to the stipulation just filed.

In response, but on our own motion and by order filed August 25, 2008, this court directed the superior court to hold a hearing to determine whether the proposed settlement was in the best interests of the disabled adult and to report its finding to this court within 10 days under California Rules of Court, rule 8.244(d). The report was filed the next day recommending approval of the compromise for plaintiff, who had become an adult. The report consisisted of a letter sent to the court by facsimile transmission signed by Judge Warner with a copy of the petition for approval without the attachments. Also, the clerk of this court received on August 29, 2008, the attachments courtesy of counsel via e-mail and printed them out. On the court’s own motions, these copies are deemed part of the record on appeal. (Cal. Rules of Court, rule 8.155.)

The parties contemplate a dismissal of the appeal as to all defendants because the settlement has rendered the appeal moot. (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.) However, the parties also have agreed to a settlement to be paid by School District having the present value of $1,300,000. This settlement is inconsistent with the summary judgment in favor of the School District; therefore, the judgment should be reversed rather than dismissed, because the effect of a dismissal of an appeal is to affirm the judgment or order appealed. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134-135; Kahn v. Kahn (1977) 68 Cal.App.3d 372, 387; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 761, pp. 834-835.)

Thus, the stipulated disposition to be evaluated in this opinion is a dismissal of the appeal as to all defendants except School District, and a reversal of the summary judgment in favor of the School District with directions to implement the disabled adult’s compromise that we approve. The reversal vacates the judgment and restores jurisdiction to the trial court so that it may render the orders required to implement the disabled adult’s compromise. The reversal of the judgment does not indicate a ruling by the appellate court on the merits of the order but does avoid any implication that the judgment remains in effect. (Compare Paul v. Milk Depots, Inc., supra, 62 Cal.2d at pp. 134-135.)

We first evaluate the disabled adult’s compromise and then consider the stipulated disposition under section 128, subdivision (a)(8).

APPROVAL OF DISABLED ADULT’S COMPROMISE

The Honorable Christopher J. Warner, Judge of the Superior Court, recommended approval of the disabled adult’s compromise in a letter received August 26, 2008, which was accompanied by the petition to approve the compromise filed the same date in the superior court (the petition). We agree with Judge Warner’s recommendation.

The School District will pay $1,300,000. Plaintiff’s total and permanent disability requires special equipment, constant nursing care, and a range of therapeutic services. Plaintiff has $184,825 of unpaid medical charges and liens, $411,220 of unpaid attorney fees and expenses, a total of $596,045 leaving a remaining balance of $703,955 available for the plaintiff. (See Prob. Code, §§ 3601, 3602.) Five hundred thousand dollars will be used to purchase the annuity described in attachment 12 to the petition, providing monthly payments of $3,100, increasing by three percent a year, with three additional lump sum payments at ages 30, 35, and 40. Additional expenditures are planned for a specially equipped van ($58,502) and portable electric lift ($5,250). The remaining balance of $141,203 will be transferred to a special needs trust.

Our calculations show that the amount remaining for transfer to the special needs trust would be $1,000 less, which we still approve. ($1,300,000-$596,045-$63,752-$500,000=$140,203.)

APPROVAL OF STIPULATED REVERSAL

The proposed settlement calls for the reversal with directions of the summary judgment in favor of School District. 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.)

In this case, the interested nonparties and public with whom we are primarily concerned are the taxpayers who support the School District and the parents whose children attend the schools. The primary factor in evaluating the effect of the agreed reversal is that the tentative ruling of this court was to reverse the summary judgment that the parties now stipulate to reverse. Thus, the net effect of the stipulation to reverse was negligible given the tentative decision to reverse. Therefore, we find no reasonable possibility that the stipulated reversal might adversely impact interested 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.

As noted above, the parties must negate the effect of the summary judgment in favor of School District in order to implement the structured settlement, which can only be accomplished by reversal.

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 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 or 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—the absence of a justiciable dispute because of the settlement. Therefore, no condemnation of the judgment on the merits is implied by this stipulated reversal, which, therefore, does not erode public trust in the integrity of the judicial system. (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”].) Furthermore, the stipulated reversal is in line with the court’s tentative opinion, which also provided for a reversal of the summary judgment.

We find the significant reasons for the stipulated reversal outweigh the negligible possibility of the erosion of the public’s trust.

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.).)

This risk is not applicable here because the parties had not yet gone to trial. Therefore, we find that the parties’ reasons for stipulating to this reversal outweigh the nonexistent disincentive of the stipulated reversal in this case 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

1. Order Approving and Ordering Disabled Adult Compromise

The court approves the compromise described in the copy of the petition received August 26, 2008. (Prob. Code, § 3600, subd. (a)(2).) The court finds that the unpaid medical charges and liens and unpaid attorney fees and expenses set forth in the petition are reasonable and authorizes and directs that they be paid from the money to be paid by the School District as described in the petition. (Prob. Code, § 3602, subd. (a).) The remaining balance shall be paid and administered as set forth in the petition. (Prob. Code, § 3611.)

2. Disposition of Appeal

The appeal is dismissed as to all defendants except School District. The summary judgment in favor of the School District is reversed and the superior court is directed: (1) to make all orders necessary for the execution and enforcement of the above orders by this court approving and ordering the disabled adult compromise; (2) to make all orders necessary for the payment and administration of the money to be paid by the School District as set forth in the petition; and (3) to retain jurisdiction over the payments and administration of the provisions of the compromise as set forth in the petition and of the special needs trust described in the petition. (Prob. Code, §§ 3602, 3611, 3612.).

In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) The clerk of this court is directed to issue the remittitur for the consolidated cases on or after 60 days after the filing of this opinion, unless the parties earlier file a stipulation for the issuance of the remittitur. (Cal. Rules of Court, rules 8.264(b)(1), 8.272(b)(1), (c)(1).)

We concur: McKinster, J., Miller, J.


Summaries of

Sulzmann v. Colton Joint Unified School Dist.

California Court of Appeals, Fourth District, Second Division
Sep 16, 2008
No. E040853 (Cal. Ct. App. Sep. 16, 2008)
Case details for

Sulzmann v. Colton Joint Unified School Dist.

Case Details

Full title:KRISTEN SULZMANN, a Minor, etc., Plaintiff and Appellant, v. COLTON JOINT…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 16, 2008

Citations

No. E040853 (Cal. Ct. App. Sep. 16, 2008)