Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. GIC880929 Richard E. L. Strauss, Judge.
McCONNELL, P. J.
James M. Kinder sued Northland Group, Inc. (Northland), alleging it violated the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) (TCPA) by making automated calls to the number assigned to his paging service. The court sustained without leave to amend Northland's demurrer to the first amended complaint, concluding the action was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340. The court entered judgment for Northland. Kinder appeals, contending the case is governed by the four-year statute of limitations set forth in 28 United States Code section 1658, as this court held in Sznyter v. Malone (2007) 155 Cal.App.4th 1152.)
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
The parties have filed a "joint application and stipulation for reversal of judgment pursuant to settlement." (§ 128, subd. (a)(8).) They request the judgment be reversed and the case be remanded to the trial court with directions to vacate its judgment and dismiss the action with prejudice, with the remittitur to issue forthwith and each party to bear own costs. The parties state this will help effectuate their settlement agreement. The basis for the joint application is this court's opinion in Sznyter v. Malone, supra, 155 Cal.App.4th 1152, which was filed after Kinder filed his notice of appeal.
Section 128, subdivision (a)(8) provides: "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." (§ 128, subd. (a)(8).)
These requirements are satisfied. The stipulation acknowledges the unassailable fact that Sznyter v. Malone, supra, 155 Cal.App.4th 1152 applies in this case. Acceptance of the stipulation will not adversely affect the interests of nonparties or the public, nor will it erode the public trust. On the contrary, it will result in the prompt resolution of an appeal with minimal expenditure of public and private resources. (Union Bank of California v. Braille Institute of America (2001) 92 Cal.App.4th 1324, 1330-1331; In re Rashad H. (2000) 78 Cal.App.4th 376, 381-382.) Nor will acceptance of the stipulation reduce the incentive for pretrial settlement. Pretrial settlement would not have been achievable in this case because this court's opinion in Sznyter v. Malone, supra, 155 Cal.App.4th 1152 was not filed until after the judgment. We therefore accept the stipulation.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with directions to vacate the judgment and dismiss the action with prejudice. The remittitur shall issue immediately. Each party shall bear own costs.
WE CONCUR: BENKE, J., NARES, J.