Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00101022, David R. Chaffee, Judge, and Richard Habeck, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Reversed.
Balisok & Associates and Russell S. Balisok for Plaintiffs and Appellants.
Schmid & Voiles, Denise H. Greer; Carroll, Kelly, Trotter Franzen & McKenna and David J. Pruett for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
This case involves an appeal from a judgment dismissing plaintiffs’ action against defendant La Vida Multi Specialty Medical Center, Inc. The trial court entered judgment after sustaining defendant’s demurrer to the first amended complaint without leave to amend on the ground the federal Medicare Act (42 U.S.C. § 1395 et seq.) preempted the lawsuit. Based on our recent decision in Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, reversing a judgment for another defendant in this lawsuit on the same ground, the parties filed a joint stipulation to reverse the judgment for defendant with directions to remand the matter to the superior court for further proceedings. Since the parties’ application complies with the requirements of Code of Civil Procedure section 128, subdivision (a)(8) and our internal operating procedures, we reverse the judgment in accordance with their request.
Plaintiffs are the children of T.J. Jackson, deceased. Jackson, a Medicare beneficiary enrolled in a health care plan named Secure Horizons operated by PacifiCare of California, Inc., died while recuperating from surgery to repair a broken leg. Plaintiffs sued several parties, including defendant, PacifiCare, and another entity named StarCare Medical Group, Inc. StarCare demurred to the original complaint, arguing the claims against it were preempted by the Medicare Act. The trial court sustained StarCare’s demurrer without leave to amend and entered a judgment of dismissal. Plaintiffs filed an appeal from that judgment.
The first amended complaint alleged Jackson failed to receive the medical services required due to a dispute between the defendants over financial responsibility for the cost of providing them. As a result, he suffered dehydration, malnourishment, infection, and ultimately death. Defendant and PacifiCare were named in the amended complaint’s causes of action for negligence-willful misconduct (fifth count), breach of fiduciary duty (sixth count), constructive fraud (seventh count), bad faith (eighth count), fraudulent concealment (ninth count), and wrongful death (tenth count). PacifiCare demurred to the amended complaint, arguing the Medicare Act also preempted the claims against it. Again, the trial court sustained the demurrer without leave to amend and dismissed the action against PacifiCare. Plaintiffs appealed from that judgment as well.
Defendant also demurred to the first amended complaint on the same grounds. The trial court sustained the demurrer without leave to amend and dismissed the action as to defendant. Plaintiffs again appealed the decision.
While this appeal was pending, we consolidated the StarCare and PacifiCare appeals and reversed both judgments. In StarCare’s case, the reversal was based on procedural grounds. (Cotton v. StarCare Medical Group, Inc., supra, 183 Cal.App.4th at pp. 442-445.) As for the PacifiCare judgment, we agreed the trial court properly dismissed plaintiffs’ seventh cause of action for constructive fraud but otherwise reversed. In doing so, we rejected PacifiCare’s claim the Medicare Act preempted the remaining causes of action, plus its alternative assertion that plaintiffs failed to exhaust their administrative remedies. (Id. at pp. 445-456.)
In their joint application to reverse the current judgment, the parties note plaintiffs named defendant in “same causes of action” alleged against PacifiCare, and that the trial court dismissed them for the same reason; preemption. The parties’ attorneys filed a joint declaration supporting the application, noting “[a]lthough the Medicare preemption issue is of some public importance, the judgment itself does not involve important public rights, unfair or illegal or corrupt practices nor torts affecting a significant number of persons, ” nor does it concern a “judgment ‘against’ a state licensee.” (Bold omitted.) Also, recognizing reversal of the judgment “will result in further public proceedings in court, ” counsel declare “the judgment [will not] have collateral estoppel or other effects in potential future litigation, ” and “does not involve any discretionary determinations by the trial court that cannot be reversed by stipulation of the parties alone without independent appellate review.” (Bold omitted.)
Code of Civil Procedure section 128 prohibits “An appellate court” from “revers[ing] or vacat[ing]e a... judgment upon an agreement... of the parties” except where there is both “no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, ” and “[t]he reasons... 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).) This directive reversed the prior rule that an appellate court “should grant [a] request for the stipulated reversal [of a judgment] absent a showing of extraordinary circumstances that warrant an exception to this general rule.” (Neary v. Regents of University of California (1992) 3 Cal.4th 273, 284.)
Courts have applied the statute’s requirements “on a case-by-case basis” (In re Rashad H. (2000) 78 Cal.App.4th 376, 381), focusing on whether a “stipulated reversal would... adversely affect the rights of any nonparty or the public, ” “erode the public trust; [or]... reduce the incentive for pretrial settlement. [Citation.]” (Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 20.) “‘A motion... for stipulated reversal of a judgment... 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...; 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. [¶] The parties must provide a sufficient showing to support the findings required by Code of Civil Procedure section 128, subdivision (a)(8)....’ [Citation.]” (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999, 1007-1008; see also Ct. App., Fourth Dist., Div. Three, Internal Operating Practices and Proc., V.C., § 2, Stipulated Request for Reversal.)
The parties’ joint application satisfies all of the foregoing requirements. A copy of the trial court’s judgment dismissing defendant is attached to the moving papers. The joint declaration identifies the parties, the factual and legal issues presented in this case, and states reversal will not adversely affect the rights of the public or third parties or reduce the incentive to settle the action before trial. Furthermore, since the stipulation is “premised on actual judicial error in the trial court” (Muccianti v. Willow Creek Care Center, supra, 108 Cal.App.4th at p. 20), it will expedite trial court proceedings.
Therefore, pursuant to the parties’ joint stipulation, the July 31, 2009 judgment for defendant La Vida Multi Specialty Medical Center, Inc. is reversed. The matter is remanded to the superior court with directions to vacate its October 7, 2008 order sustaining defendant’s demurrer to the first amended complaint without leave to amend as to the fifth, sixth, eighth, ninth, and tenth causes of action, and for further proceedings consistent with our decision in Cotton v. StarCare Medical Group, Inc., supra, 183 Cal.App.4th 437. Appellants shall recover their costs on appeal. The clerk shall issue the remittitur forthwith.
WE CONCUR: FYBEL, J., IKOLA, J.