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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOENATHAN WILLIAMS,

Plaintiff and Appellant,

v.

NORDSTROM, INC.,

Defendant and Respondent.

 D069051

(Super. Ct. No. 37-2014-00007604-

CU-CR-CTL)

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
2

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 
3

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.
4

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.