Filed 7/15/16 Williams v. Nordstrom, Inc. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



JOENATHAN WILLIAMS,                                                 D069051

         Plaintiff and Appellant,

         v.                                                        (Super. Ct. No. 37-2014-00007604-
                                                                   CU-CR-CTL)
NORDSTROM, INC.,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Reversed.

         The McMillan Law Firm, Scott A. McMillan and Marilyn S. Phelps for Plaintiff

and Appellant.

         Haight, Brown & Bonsteel, S. Christian Stouder and Elizabeth Trent Schaus for

Defendant and Respondent.

         The parties have stipulated the superior court's August 7, 2015 discovery order

compelling discovery responses and imposing sanctions on Plaintiff JoeNathan Williams
and his counsel of record be reversed, that the matter be remanded to the superior court,

and that each party bear its own costs on appeal.

       In Neary v. Regents of University of California (1992) 3 Cal.4th 273 (Neary), the

Supreme Court held that "when the parties to an action agree to settle their dispute and as

part of their settlement stipulate to a reversal of the trial court judgment, the Court of

Appeal should grant their request for the stipulated reversal absent a showing of

extraordinary circumstances that warrant an exception to this general rule. Any

determination that such circumstances exist must be made on a case-by-case basis." (Id.

at p. 284.)

       After Neary, the Legislature modified the appellate court's power to accept a

stipulated reversal. Code of Civil Procedure section 128, subdivision (a)(8) provides that

an appellate court may not accept a stipulated reversal or vacation unless it 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."

       This appeal is taken from the August 7, 2015 order on the parties' competing

discovery motions. The superior court compelled Williams to provide additional

discovery responses and imposed $14,419 in discovery sanctions on Williams and his

counsel of record, of which $1,000 was payable within 20 days. After Williams filed this

appeal, the parties executed a Settlement Agreement settling the entire case. Among the

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terms of the Settlement Agreement was the joint submission of the present stipulated

request for reversal of the August 7, 2015 discovery order.

       The court is satisfied there is no reasonable probability the interests of nonparties

or the public will be adversely affected by the reversal. Further, the private settlement

and reversal of the court's August 7, 2015 order does not in the circumstances of this case

erode the public trust or reduce the incentive for pretrial settlement.

       As a separate matter, we address the propriety of the superior court's June 16, 2016

order dismissing the entire action without prejudice on account of the parties' settlement.

On our own motion, we take judicial notice of the June 16th order and conclude the

superior court exceeded its jurisdiction by dismissing the action while appeal of the

August 7, 2015 discovery order remained pending. (People v. Sonoqui (1934) 1 Cal.2d

364, 367 ["pending an appeal the trial court may not dismiss the action, even with the

consent of all the parties"]; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th

180, 190 [an appeal stays trial court proceedings "if the possible outcomes on appeal and

the actual or possible results of the proceeding are irreconcilable"] (Varian).) Because

the court acted in excess of its jurisdiction, its dismissal order is " 'void on its face.' "

(Varian, at p. 200.) We therefore vacate the June 16, 2016 dismissal order. The superior

court may issue a new dismissal order following remittitur.




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                                     DISPOSITION

      We reverse the August 7, 2015 order compelling discovery responses and

imposing sanctions on Williams and his counsel of record; we vacate the June 16, 2016

dismissal order; and we remand the matter to the superior court. The remittitur shall

issue immediately. Following remittitur, the superior court may issue a new dismissal

order. Each party shall bear its own costs on appeal.



                                                                     McCONNELL, P. J.

WE CONCUR:


BENKE, J.


NARES, J.




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