Alpinieri v. Skeen
Filed 6/20/12 Alpinieri v. Skeen CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
LOUIS J. ALPINIERI et al.,
Plaintiffs, Cross-defendants and Appellants,
v.
JAMES E. SKEEN et al.,
Defendants, Cross-complainants and Respondents.
D060853
(Super. Ct.
No. GIC879650)
APPEAL from
orders of the Superior Court
of
County, Richard E. L. Strauss, Judge. Reversed.
This action
arose out of a dispute between property owners in La
Jolla Shores Heights
(Heights). The superior court granted
the motion of defendants and cross-complainants James Skeen, Lorena Skeen and
Skeen Family Trust (together, the Skeens) for summary adjudication on the cause
of action of plaintiffs and cross-defendants Louis J. Alpinieri and Brenda L.
Alpinieri (together, the Alpinieris) for breach
of contract. The court also granted
on their cause of action for declaratory relief against the Alpinieris and
other Heights property owners.
On October 28, 2011, the court granted
in part the Skeens' motion for attorneys' fees.
The court awarded the Skeens $415,219.48 as prevailing parties (Civ.
Code, § 1717), representing the fees they incurred in defending the
Alpinieris' breach of contract cause of action and in prosecuting their own
cause of action for declaratory relief. On the same date, the court granted in part
the Alpinieris' motion to tax costs and awarded the Skeens $16,944 in
costs. On October 31, the Alpinieris
filed a notice of appeal of the
October 28 orders.
On March 8, 2012, while the appeal was
pending, this court reversed the summary adjudication on the Alpinieris' breach
of contract cause of action and the Skeens' declaratory relief cause of action.
The
Alpinieris and the Skeens have filed a "stipulation for reversal of orders awarding
respondents attorney fees and costs."
They stipulate to the reversal of the October 28, 2011 orders, the Alpinieris'
recovery of $682 in costs on appeal from the Skeens, due when the remittitur
issues, and immediate issuance of the remittitur. The reason for
the stipulation is this court's reversal of the summary adjudication on which
the October 28, 2011
orders were based. (Gillan v. City of
(2007) 147 Cal.App.4th 1033, 1053.) We
accept the stipulation.
"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." (Code Civ. Proc., §
128, subd. (a)(8).)
Our independent review of the record
leads us to conclude we should accept the stipulation. First, there is no reasonable possibility
that reversal will adversely affect the interests of anyone who is not a party
to this appeal, including the other Heights property owners. Nor will reversal adversely affect any public
interest. Second, the parties request
reversal because the underlying judgment has been reversed, removing the basis
for the orders that are the subject of this appeal. The nullification of those orders will not in
any way erode public trust. On the
contrary, this reasonable and expeditious solution to the appeal will enhance
public trust. Finally, the stipulation
will not lead to a risk of reducing any incentive for pretrial settlement, as
the stipulation could not have been reached before this court's reversal of the
underlying judgment.
DISPOSITION
The October 28, 2011 orders are reversed. The Alpinieris shall recover from the
Skeens $682 in costs on appeal, due when the remittitur issues. The remittitur is to issue forthwith.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
