Morrow v. Hood Communications, Inc.

59 Cal. App. 4th 924, 69 Cal. Rptr. 2d 489, 97 Cal. Daily Op. Serv. 9048, 1997 Cal. App. LEXIS 990

• Court: California Court of Appeal
• Decided: December 2, 1997
• Docket: A078994
• Status: Published

Opinions

Opinion

LAMBDEN, J.

We have before us a motion for stipulated reversal of the judgment of the trial court and dismissal of this appeal. Such motions are not authorized by statute or rule of court but by the decision of our Supreme Court in Neary v. Regents of University of California (1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119].

Notice of appeal was filed in this court on June 24, 1997. The issues involved in the appeal have not been identified and briefed by the parties and the record has not yet been filed. What little we know about the case comes from the papers filed in support of the motion for stipulated reversal.

Evidently, plaintiff Andrew Morrow (Morrow) commenced this action against defendants Hood Communications, Inc. (Hood) and Fry & Associates (Fry) for the breach of leases pertaining to separate premises in San Mateo County owned by Morrow. Morrow alleged, among other things, that Hood was the parent corporation of Fry and liable as its alter ego. He additionally alleged that Hood and Fry “had engaged in a de facto merger that rendered Hood liable under the leases.” Fry did not deny liability. The primary issue at trial was the relationship between Hood and Fry. After a four-day trial to the court, judgment was rendered for Morrow against both defendants, jointly and severally, in the amount of $51,331.29, together with interest thereon and reasonable attorney fees and costs. The court found that Fry was not the alter ego of Hood but that a de facto merger had occurred and that Hood was therefore liable for Fry’s obligations under the lease with Morrow.

Pursuant to rule 8 of the Local Rules of the First Appellate District (23 pt. 3 West’s Ann. Rules of Court (1996 ed.) pp. 91-92), which pertains to motions for stipulated reversal,¹ counsel for the parties have filed declarations stating that the judgment does not involve important public rights or unfair, illegal or corrupt practices, or torts affecting a significant number of persons not parties to the litigation. On the basis of “information and belief’ counsel also state that “stipulated reversal of the judgment will not prejudice any third parties,” and that they have no knowledge that the judgment sought to be reversed “would have a collateral estoppel or other effect on any other matter, claim, or action.”

Because we have no reason to reject the declarations of counsel, we conclude that this case presents none of the “extraordinary circumstances” which under Neary v. Regents of University of California, supra, 3 Cal.4th 273, must be present in order to deny a motion for stipulated reversal.

Under the principles of stare decisis set forth in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937], we feel bound by Neary and, accordingly, grant the motion. We do not, however, believe that the principles set forth in Auto Equity prevent us from respectfully stating our agreement with the fundamental principles set forth by Presiding Justice Kline in his dissent (other than those pertaining to the power of an inferior court to refuse to acquiesce in precedent established by a court of superior jurisdiction) and in his opinion in Norman I. Krug Real Estate Investments, Inc. v. Praszker (1994) 22 Cal.App.4th 1814, 1825 [28 Cal.Rptr.2d 498] (conc. opn. of Kline, P. J.). We also agree with Presiding Justice Kline that this case provides an appropriate vehicle through which the Supreme Court should reconsider and repudiate the doctrine adopted in Neary.

Ruvolo, J., concurred.

1 Rule 8 provides as follows: “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.”