Driscoll v. Granite Rock Co.
Filed 6/18/13 Driscoll v. Granite Rock Co. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
BRIAN DRISCOLL et al.,
Plaintiffs and
Appellants,
v.
GRANITE ROCK COMPANY,
Defendant and
Appellant.
H038272
(Santa Clara
County
Super. Ct.
No. CV103426)
Appellants Brian Driscoll, et al.
were employees of respondent Granite Rock Company. The parties became embroiled in a
in favor of respondent. Both parties
filed an appeal from this judgment, appeal No. H037662. Thereafter, the trial court entered an order
on respondent’s motion for attorney fees, granting it in part, and denying it
in part. On May 1, 2012, the trial court entered an amended
judgment encompassing the attorney fees award.
Appellants filed another appeal in this court from the order awarding
attorney fees and the amended judgment, appeal No. H038272.
While the appeals were pending, the
parties filed a joint “Application to Vacate Orders and Modify Amended Judgment
Awarding Attorney’s Fees.†The parties
jointly request that this court vacate the trial court’s order awarding
attorney fees, modify the portion of the amended judgment entered on May 1,
2012 to delete reference to attorney fees, modify the portion of the amended
judgment entered on May 1, 2012 to delete references to attorney fees and Labor
Code section 218.5, dismiss the attorney fees appeal and related cross-appeal
in appeal number H038272 as moot with each party to bear its own costs, and to
affirm that appeals from the original judgment, H037662, are the operative
notices of appeal going forward.
In effect, the parties have entered
into a settlement which resolves the issues raised in appeal H038272, and are
asking this court to grant a stipulated reversal of the amended judgment awarding
attorney fees. The reason that the
parties seek a stipulated reversal, as outlined in their motion, is that after
the entry of the amended judgment, the California Supreme Court recently
decided Kirby v. Immoos Fire Protection
Services (2012) 53 Cal.4th 1244 (Kirby),
which conclusively resolved the issues raised in appeal No. H038272. Both parties agree that the trial court’s
order is expressly contrary to the decision in Kirby and would be reversed should the appeal be fully heard. A stipulated reversal, they contend, will
promote judicial economy.
The parties’ motion supports the
conclusion that a stipulated reversal is appropriate under the facts of this
case and the law. (See Code Civ. Proc.,
§ 128, subd. (a)(8).) For the
reasons stated in the joint motion, including promoting judicial economy by
deleting portions of the judgment which are now contrary to newly developed
California Supreme Court precedent, the court finds that there is no possibility
that the interests of nonparties or the public will be adversely affected by
the reversal.
This court
further finds that the parties grounds for requesting reversal are
reasonable. Those grounds outweigh the
erosion of public trust that may result from the nullification of a judgment,
and outweigh the risk that the availability of a stipulated reversal will
reduce the incentive for pretrial settlement.
The parties do not seek reversal of the trial court’s orders because
they disagree with its decision, but rather because our Supreme Court resolved
the issue contrary to the Superior Court’s decision.
Disposition
The orders awarding attorney fees
dated March 26, 2012 and April 19, 2012 are reversed pursuant
to the stipulation of the parties. The
amended judgment entered on May 1, 2012
is amended to delete all references to the award of attorney fees and Labor
Code section 218.5. Each party to bear
its own attorney fees and costs on appeal.
The notices of appeal and
cross-appeal filed from the original judgment in appeal number H037662 shall be
the operative notices of appeal going
forward.
The remittitur shall issue
forthwith.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
