NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RAMIREZ, P.J.

FACTS

Defendant County of San Bernardino appeals from the judgment awarding plaintiffs $5.1 million in damages in an inverse condemnation action and from an award of attorneys' fees, costs and interest. The judgment reflected a trial court's "judicial determination of liability" and the jury's determination of the amount of damages. Defendant contests its liability for, and amount of, damages, as well as the post-judgment award of attorneys' fees, costs and interest.

DISCUSSION

The parties reached a settlement after filing of the record on appeal, but before the briefs had been filed. They submitted their stipulation after the settlement agreement had been executed. The request filed on October 18, 2010, requests this court to reverse the underlying judgment and remand to the Superior Court with directions to file and enter plaintiffs' request for dismissal of the entire action with prejudice. The stay order filed in this appeal on September 29, 2010, is hereby lifted.

Assuming the necessary findings for accepting a stipulation to reverse (Code Civ. Proc., § 128,1 subd. (a)(8)), which we discuss below, we have the grounds to render this disposition because of the settlement by the parties. The settlement has rendered the superior court action moot, making dismissal by the superior court the appropriate disposition of that action. Reversal by this court vacates the judgment and restores jurisdiction to the trial court so that it may dismiss the action. The reversal of the judgment does not indicate a ruling by the appellate court on the merits of the order, but does avoid any implication that the judgment remains in effect.

Under section 128, subdivision (a)(8), implementation of a stipulated reversal requires the appellate court to make two findings: (1) that no reasonable possibility exists of adversely affecting the interests of nonparties or the public (§ 128, subd. (a)(8)(A)), and (2) that the parties' reasons for requesting reversal outweigh (a) the erosion of public trust that may result from reversing the judgment and (b) the reduced incentive to settle pretrial that may result from the availability of postjudgment stipulated reversal. (§ 128, subd. (a)(8)(B)).2

This case involved the diminution in plaintiffs' private property values due to the County of San Bernardino's road improvement project. Furthermore, the terms of the settlement required approval of the County's elected officials. We find no reasonable possibility that the stipulated reversal will adversely affect the interests of nonparties or the public. (§ 128, subd. (a)(8)(A).)

Making the second finding required by section 128, subdivision (a)(8) entails balancing of (a) the erosion of public trust that may result from reversing the judgment, and (b) the reduced incentive to settle pretrial that may result against the reasons for the parties agreeing to a stipulated reversal. Here, the motivation for settlement includes a desire to end litigation and avoid the expense of filing briefs on appeal. Thus, the motivations for a stipulated reversal in this case appear honorable.

Little potential for erosion of public trust exists in this case because of the reasonable and good faith character of the appeal and the potential issues to be raised, i.e., whether the trial court erred in determining liability by in limine motion rather than bench trial, whether the statutes of limitations barred plaintiffs' damages claims, and whether the trial court erred in various evidentiary rulings and jury instructions during the damages phase of trial. Furthermore, this stipulated reversal makes clear that the reversal does not imply a ruling that the judgment was reversibly erroneous but notes that the settlement has rendered the dispute moot and that the reversal serves only to vacate the judgment so that the trial court may dismiss the underlying action as moot. We find that the motivations of the parties for stipulating to reverse outweigh the negligible risk that public trust would be eroded. (§ 128, subd. (a)(8)(B).)

The third and final factor for consideration is the extent to which the availability of a post-judgment stipulated reversal reduced the incentive in this case to a pretrial settlement, which factor is also to be weighed against the parties' reasons for stipulating to the reversal. Because the defendant could have reasonably believed that it would have prevailed at trial, there was little incentive in this case to settle before trial. Thus, the possibility of stipulating to a reversal on appeal likely did not occur to the defendant prior to trial; and, thus, did not likely act as a disincentive to pretrial settlement. 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).)

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 entire action as moot due to the parties' settlement. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).) Because the parties stipulated to the immediate issuance of the remittitur, the clerk of this court is directed to issue the remittitur forthwith. (Cal. Rules of Court, rule8.272(c)(1).)

We concur.

Hollenhorst, J.

McKinster, J.