Prudent rulings on motions for stipulated reversal have always required information that is usually not in the record or readily

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California
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First Appellate Local Rule 8 Requirements
(Hardisty v. Hinton & Alfert)

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First Appellate Local Rule 8 Requirements
(Hardisty v. Hinton & Alfert)

Prudent rulings on motions for stipulated reversal have always required information that is usually not in the record or readily apparent. (See 9 Witkin, Cal Procedure, supra, Appeal, § 783, pp. 817-818.) The parties ordinarily possess or can obtain such information, but if the information would justify denial of their request for reversal they may not be motivated to seek it or, if they have the information, to disclose it. In 1994, shortly after Neary was decided, this Appellate District addressed the problem by promulgating Local Rule 8, which was designed to call the attention of counsel to the nature of the disclosure required of parties seeking stipulated reversal. As amended in 2000 (to call attention to the findings required by the 1999 amendment to section 128), the rule states: “A motion filed in this court for stipulated reversal of a judgment of a trial court must include a joint declaration of counsel that (1) describes the parties and the factual and legal issues presented at trial; (2) indicates whether the judgment involves important public rights or unfair, illegal or corrupt practices, or torts affecting a significant number of persons, or otherwise affects the public or a significant number of persons not parties to the litigation (if the judgment is against a state licensee, the declaration must also disclose whether it exposes such person to any possible disciplinary proceeding); and (3) discloses whether the judgment sought to be reversed may have collateral estoppel or other effects in potential future litigation and, if so, whether any third parties who might be prejudiced by stipulated reversal of the judgment have received notice of the motion therefor. A copy of the judgment must accompany the motion. [¶] The parties must provide a sufficient showing to support the findings required by Code of Civil Procedure section 128, subdivision (a)(8), as amended effective Jan. 1, 2000.” (Ct. App., First Dist., Local Rules, rule 8, Motions for stipulated reversal of judgment.) As recently noted in Estate of Regli (2004) 121 Cal.App.4th 878, motions for stipulated reversal may be denied for failure to comply with Local Rule 8. (Id. at p. 881, fn. 2.)

Local Rule 8 does no more than make explicit a requirement implicit in subdivision (a)(8) of section 128: the duty of counsel for parties to a joint motion for stipulated reversal to affirmatively demonstrate a basis for each of the three findings required to be made by the statute. The absence of a reasonable possibility that the interests of nonparties or the public will be adversely affected by stipulated reversal cannot be demonstrated without a complete description of the legal claims advanced at trial, the rulings on those claims, and the practical consequences of those rulings, if any, for nonparties or the public. The reasons the parties request reversal cannot be shown to outweigh the erosion of public trust that may result from the nullification of a judgment unless the reasons are fully revealed. Finally, the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement cannot be discounted unless it is shown that the parties seriously pursued settlement prior to trial or that the delay in seeking or reaching settlement is explained by a posttrial development that could not reasonably have been anticipated prior to trial.

It is unclear whether the parties were aware of Local Rule 8, but they clearly have not complied with it nor otherwise made the showings required by the statute.

III.

To begin with, the page and a half declaration, which consists of little more than an abbreviated description of the procedural history of this case, is not the “joint declaration of counsel” contemplated by our rule, but the declaration only of counsel for Hinton & Alfert—though it is accompanied by a one-sentence stipulation “to vacate the judgment . . . as part of a settlement of this action” that is executed by counsel for all parties. Nor is the declaration accompanied by a copy of the judgment we are asked to vacate, as also required by Local Rule 8. Indeed, although the motion and declaration of counsel repeatedly refer to the Judge Cram’s findings and judgment, nowhere in either document is there any description of the nature and substance of her findings. We have that information only because the findings and judgment are the subject of the appeal and cross-appeal and were therefore required to be attached to the Civil Case Information Statements the parties filed when they initiated appellate proceedings. But though we have Judge Cram’s rulings, and can calculate the economic consequences of those rulings for the parties, we cannot determine from the rulings alone whether those are the only consequences, and, as we discuss presently, the nature of some of Judge Cram’s findings suggest other possible consequences. Nor do we know the reason or reasons the parties request stipulated reversal, and we are therefore in no position to determine whether, as the parties claim, those reasons outweigh the erosion of public trust that may result from nullification of Judge Cram’s judgment. Finally, the parties tell us nothing at all about whether they seriously sought to settle this case prior to trial, or whether an unusual posttrial development created an incentive or need to settle or settlement opportunity that did not previously exist. We are therefore unable to determine whether there is a risk that making stipulated reversal available in this case might reduce the incentive for pretrial settlement.

The parties’ contentions that there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by vacating the judgment, and the reasons for requesting vacation outweigh the erosion of public trust that may result from nullification of the judgment, rest heavily on Union Bank, supra, 92 Cal.App.4th 1324. The factors that justified stipulated reversal in that case are not, however, present here.

Union Bank involved a dispute regarding a testamentary trust. After the beneficiaries appealed two adverse orders, the trustee bank filed a third petition asking the trial court to approve its compensation and for additional instructions. The trial court ordered the parties to mediation, which resulted in a settlement that also encompassed matters germane to the two pending appeals: the appointment of successor cotrustees and modification of the trust. (Union Bank, supra, 92 Cal.App.4th at pp. 1326-1327.) Pursuant to the stipulation of the parties, the Court of Appeal reversed the two orders previously appealed. The court found that all three requirements of subdivision (a)(8) of section 128 were satisfied. As to the first requirement, the court found “[t]here is no evidence of any interests on the part of nonparties. The public interest is advanced because disputes resulting in two appeals and one pending probate petition will be resolved without further expense and each of the beneficiaries, which are charities, will no longer be spending moneys in litigation on these three matters. The beneficiaries will be spending moneys on charitable causes, not legal fees.” (Id. at p. 1329.) As to the second requirement, the court determined that no erosion of public trust “would arise from a judicially approved reversal of two probate court orders which ultimately serve the interests of the beneficiaries which are charities, the trust, and the public.” (Id. at pp. 1329-1330.) As the court also noted, the settlement was conducted pursuant to an order of the trial court and all parties had notice of the mediated settlement prior to judicial approval of the settlement terms. Finally, with respect to the third requirement, the court found no evidence that the availability of stipulated reversal would reduce the incentive for pretrial settlement. As the court pointed out, the settlement occurred in conjunction with the resolution of a petition concerning the trustee’s fees prior to the time it was set for trial, therefore the settlement calling for stipulated reversal was actually part of a pretrial settlement. (Id. at p. 1330.)

Hardisty v. Hinton & Alfert-A107318-12/8/04-CA1/2-Stipulated Motion to Vacate Judgment

Dec 08 2004

A107318
[PDF] [DOC]

Hardisty v. Hinton & Alfert 12/8/04 CA1/2

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