Friends of Riversides Hills v. City of Riverside

Filed 2/5/08 Friends of Riversides Hills v. City of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Reversed.

Gresham Savage Nolan & Tilden and Jennifer M. Guenther, for Real Party in Interest and Appellant.

Gregory P. Priamos, City Attorney, Heriberto F. Diaz, Deputy City Attorney, for Defendants and Respondents.

Johnson & Sedlack and Raymond W. Johnson and Abigail A. Broedling, for Plaintiff and Respondent.

This opinion approves and orders a reversal of the judgment appealed pursuant to a stipulation by the parties, with the added direction to dismiss the underlying superior court action as having been rendered moot by the settlement. (Code Civ. Proc., 128, subd. (a)(8).)^[1]

BACKGROUND

Real party in interest Jim Guthrie (the Developer) appeals the judgment directing issuance of a peremptory writ of mandate requiring the City of Riverside (the City) to vacate its approval of, and suspend activity on, the final portion of the Developers Planned Residential Development (the project). The petitioner Friends of Riversides Hills (Friends) is an unincorporated association. The judgment was based on a finding concerning two broad issues: (1) unmitigated environmental impacts under the California Environmental Quality Act (CEQA) on Riversidean Sage Scrub (RSS) and Least Bells Vireo (LBV); and (2) inadequate findings justifying variances of lot size, access, and grading. The Developer intended to argue on appeal that the trial court failed to apply the correct standard of review in making both determinations, and that the record lacks substantial evidence of a fair argument that the project, as modified by the mitigation measures, would have caused significant environmental effects.

Soon after the filing of the appeal, the parties notified this court that they had begun settlement negotiations, and we stayed all proceedings in the appeal so that no record or briefs would be filed. The parties regularly reported on their progress, and on March 20, 2007, filed a STIPULATION TO VACATE AND SET ASIDE

JUDGMENT . . . . By subsequent order we directed the parties to respond to several questions relevant to the necessary findings to be made under section 128, subdivision (a)(8), and the parties replied by letter filed May 25, 2007, by appellants counsel. The letter provided information about a revised project pursuant to the parties settlement with a new tentative map that has been approved by the City with some new findings.

This court responded to the parties letter by a further order filed July 13, 2007, to which the parties filed a joint response on July 30, 2007. The order asked the parties (1) to explain how the revised project addresses the trial courts concerns expressed in the statement of decision and judgment granting a writ of mandate, or (2) to show those concerns were legally erroneous. In responding to these questions, the parties informed us that the revised project addresses the trial courts concerns to the extent they are legally justified.

Respecting both of the species that were the objects of the trial courts environmental concerns, the Project is now required to comply with the Multi-Species Habitat Conservation Plan, which applies specific measures to be taken to deal with any potential impact on either RSS or LBV. Additionally, the tentative tract map was redesigned to further reduce or avoid any impact to RSS or LBV by eliminating or reconfiguring lots.

Respecting the variances of lot size, access, and grading, the parties assure this court that the tentative tract map has been revised and [u]pon reapproval of the tract map and settlement agreement by the city council on April 24, 2007, the City adopted new findings for the lot size variances for the four new lots and, by approval of the settlement agreement, reaffirmed the original findings for the remaining parcels. Additionally, a change of law by new local ordinance provides that lots with access to privately maintained streets are not landlocked, bringing all of the projects lots into compliance with access requirements, which had previously called for access to a public street. Finally, the parties agree that the original findings, on which the original variances had been granted, are adequate and span more than 100 pages in the administrative record, when the trial court had presumed, in the absence of the parties guidance at that time, that the relevant findings were set forth on only two pages.

We now proceed to an evaluation to 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.)

In this case, those who will live in the project and those living near the project, as well as the public, have a significant stake in this proceeding because of the projects possible environmental effects. However, the nature of the settlement reached by the parties gives substantial assurance that the project as modified by the parties settlement will entail no significant environmental effects and that the variances are supported by adequate findings in the context of the revised tentative tract map. Furthermore, the circulation of the initial study and notification of the proposed negative declaration aroused no opposition other than that of Friends, from which this court derives assurance that no other members of the public were adversely affected by the project. (See Cal. Code Regs., tit. 14, 15071 [negative declaration circulated for public review includes attached copy of initial study], 15072 [manner of circulation by lead agency]; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 614-616 [reviewing negative declaration procedure].)

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. The parties revisions of the project addressed the defects found in the statement of decision and essentially comply with the judgment.

Second, the reversal contemplated by the parties is not on the merits, but rather on the ground of the mootness resulting from the settlement. This court is presented with a different project than the one considered in the judgment, so that the judgment no longer applies to the revised project resulting from the settlement. 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 (4th ed. 1997) Appeal, 644, p. 673.) 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 courts jurisdiction so that it may dismiss the underlying superior court action as moot. (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, supra, Appeal, 759, p. 784 [unqualified reversal implies new trial].)

Third, this court asked the parties why they preferred a stipulated reversal over dismissal in the earlier order filed May 8, 2007, and the parties replied in the letter filed May 25, 2007, a month after the revised project had been approved on April 24, 2007: The Parties now request a reversal of the underlying judgment granting the petition and issuing the writ of mandate because the writ requires that certain additional environmental studies be completed pursuant to CEQA and further requires that the variances and grading exceptions necessary for the approval of the Project be set aside. That appears to be true: 1. Let a writ of mandate issue requiring Respondents: [] a. [T]o vacate and set aside their approvals of the [P]roject, including, without limitation, the granting of variances and the adoption of a mitigated negative declaration; and [] b. [T]o suspend all activity on the [P]roject until they have taken actions that may be necessary to bring the Project into compliance with the Riverside Municipal Code and CEQA. In other words, under the judgment the Developer and the City would have to prepare and circulate another initial study and mitigated negative declaration. The parties agreed revisions to the project make these orders unnecessary.

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 desiredthe condemnation of the trial courts judgment implied by the reversal. This reflects poorly on both courts implying that the trial court erred and that the appellate courts 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 revision of the project along the lines required by the judgment. 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 publics 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 the order filed May 8, 2007, we asked why the parties did not settle the case earlier in the trial court proceedings. They replied in the letter filed May 25, 2007, The parties did meet on several occasions during the trial court proceedings as part of a mandatory settlement conference procedure . . . , but were unable to resolve their differences at that time.

Because the Developer had the support of the City, and Friends had legitimate concerns about the project, all parties believed in good faith that their positions concerning the project were supported by the law and the facts, and they all could have reasonably believed that they would have prevailed at trial. Thus, the additional step of a trial court hearing was necessary to bring the project in sharper focus. This was accomplished by the trial courts thoughtful statement of decision, which sorted through the various issues to pinpoint the defects in the project that had to be addressed. Thus, the possibility of stipulating to a reversal on appeal likely did not occur to any of the parties prior to trial and, thus, did not likely act as a disincentive to pretrial settlement.

Therefore, we find that the parties reasons for stipulating to this reversal outweigh the unlikely disincentive of a 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, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.272(a).) Because this is not a stipulated dismissal or abandonment of the appeal, the clerk of this court is directed to issue the remittitur 60 days after the date of this order, unless the parties file a stipulation for the immediate issuance of the remittitur. (Compare Cal. Rules of Court, rules 8.244(a)(5), 8.272(c)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Ramirez

P.J.

We concur:

/s/ Hollenhorst

J.

/s/ McKinster

J.

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^[1]All further statutory references are to the Code of Civil Procedure unless otherwise indicated.