Filed 6/10/15 Jauregui v. City of Palmdale CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JUAN JAUREGUI et al.,

Plaintiffs and Respondents,

v.

CITY OF PALMDALE,

Defendant and Appellant. B253713

(Los Angeles County Super. Ct. No. BC483039)

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Mark V. Mooney, Judg e. Affirmed as modified. Matthew Ditzhazy, City A ttorney, and Noel Doran, Assistant City Attorney;

Nielson Merksamer Parrinello Gross & Leoni , Marguerite M. Leoni and Christopher Skinnell; Richards, Watson & Gers hon, Mitchell E. Abbott, Aa ron C. O’Dell and Kyle H. Brochard for Defendant and Appellant. Shenkman & Hughes, Kevin I. Shenkman, Ma ry R. Hughes and John L. Jones II; Goldstein, Borgen, Dardarian & Ho, Morris J. Baller, Laura L. Ho and Katrina L. Eiland; R. Rex Parris Law Firm, R. Re x Parris and Brendan Gilbert; R obert Rubin; and Milton C. Grimes for Plaintiffs and Respondents.2 Defendant, City of Palmdale, appeals fro m a December 23, 2013 injunctive order to elect its city coun cil through district-based elections . The injunctive order was secured by plaintiffs, Juan Jauregui, Miguel Holly an d V. Jesse Smith. After the completion of briefing, the parties entered into settlement negotiations conducted by Retired Presiding

Justice Steven Stone. As a result, the parties en tered into a settlement agreement which provides for district-based elections and the payment of attorney fees. The parties have submitted a joint motion to modify and affirm the December 23, 20 13 injunctive order. We grant the motion and direct that the Decemb er 23, 2013 injunctive order be modified as well as a subsequent attorney fee order. In addition, a pre-December 30, 2013 order is to be modified as provided for in the settlement agreement. Plaintiffs filed a complaint alleging as a sole cause of action an alleged violation of the California Voting Rights Act. (Elec. Code, §§ 14025-14032; see Sanchez v. City of

Modesto (2006) 145 Cal.App.4th 660, 668.) Plai ntiffs’ first amended complaint alleges that the use of an at-large system for elec ting city council members diluted the votes of Latino, Latina and African-American residents. On August 27, 2 013, the trial court

issued a statement of decision which: found racially polarized voting had occurred; ruled the use of an at-large method for city coun cil elections resulted in the dilution of the rights of voters who are members of a prot ected class; and overruled various other challenges to the application of the Califor nia Voting Rights Act. On September 30, 2013, the trial court issued a preliminary in junction which barred the use of an at-large system for electing city council members. On October 4, 2013, de fendant appealed from the issuance of the preliminary injunction. On December 23, 2013, judgment was entered in plaintiffs’ favor. The final judgment re quires that city counc il members be elected through district-based elections to be held in November of even-numbered years. On January 8, 2014, defendant appealed from the December 23, 2013 judgment. On May 28, 2014, we affirmed the order issuing the preliminary injunction. We reached two principal conclusions. Initially , we concluded that the California Voting Rights Act could apply to a charter city. ( Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 794-804.) Further, we ruled that the trial court had the authority to3 enjoin the certification of election results pur suant to Elections Code section 14029. ( Id

. at pp. 804-808.) Meanwhile, th e parties completed briefing in connection with the appeal from the December 23, 2013 judgment. On June 19, 2014, the trial c ourt issued an order granting plaintiffs’ attorney fee motion. In addition, the trial court granted in part

defendant’s motion to tax certain costs. On June 19, 2014, defendant appealed from the order awarding attorney fees. The parties have advised us that there is yet another attorney fee award order in plaintiffs’ favor which is not yet the subject of an appeal. As noted, we were notified of a comp rehensive settlement involving the two existing appeals and the anticipated third ap peal has been achieved. Thereupon, we asked the parties to brief the question of th e application of Code of Civil Procedure 1 section 128, subdivision (a)(8) 2 to any modification of the injunctive aspects of the December 23, 2013 judgment. ( Union Bank of California v. Br aille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1325-1331.) On May 26, 2015, the parties filed with this court a joint motion to modify the judgment and affirm it as modified. The purpose of the May 26, 2015 joint motion is to modify the September 30, 2013 order and December 23, 2013 judgment in several particulars: certain deadlines fo r compliance with the judgment which have now passed have been re vised; the scope of ce rtain provisions of the judgment have been clarified; and the re sults of the November 4, 2013 voting which

resulted election of an African-American councilmember may now be certified. The parties present two arguments as to why section 128, subdivision (a)(8) does not prevent modification of the December 23 , 2013 judgment and related prior orders.

1 Future statutory references are to the Code of Civil Procedure. 2 Section 128, subdivision (a)(8) states: “Every court shall ha ve the power to do all of the following: [¶] . . . (8) To amend an d control its process and orders so as to make them conform to law and justic e. An appellate court shall not reverse or vacate a duly entered judgment upon an agre ement or stipulation of the parties unless the court finds both of the following: [¶] (A ) There is no reasonable possi bility that the interests of nonparties or the public will be adversely affect ed 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 fo r pretrial settlement.”4 To begin with, the parties argue that secti on 128, subdivision (a)(8) applies only when a judgment is reversed, vacated or nullified. Th ey reason that the present stipulation leaves the major provisions of the December 23, 2013 judgment intact—the at-large process for electing city council members is replaced by dist rict elections. They note that section 43 3 expressly allows for orders affirming, reversing or modifying any judgment. Hence, they reason that an order modifying a judgment, whic h leaves its principal provisions intact, is not subject to the limitations imposed by that section 128, subdivision (a)(8). Further, even if section 128, subdivision (a)(8) a pplies, the parties argue that the minor

modifications at issue do not a dversely affect the interests of nonparties or the public. (§ 128, subd. (a)(8)(A).) And both sides argue no erosion of public trust will result from the minor modifications they ha ve agreed to nor w ill the stipulation’s availability reduce the incentive for pretrial settlement. (§ 128, subd. (a)(8)(B).) We agree on both counts. The stipula tion provides the judgment is affirmed as modified. The stipulation does not revers e, vacate or nullify the December 23, 2013 judgment in any substantial sense. Further, the modified judgment requires district-based elections in even years consistent with the ma p adopted by the trial court. Also, because the modified judgment is the subject of an ag reement, it can be im plemented immediately and not be further delayed by appeals. Furthermore, the modified judgment imposes additional requirements beyond that specified by the trial court, incl uding public hearings to educate the electorate on the redistricting pl an. And, the modified judgment brings to a halt continuing costs of defense incurred by defendant. Additionally, the modified judgment and settlement places a maximum li d on the sums potentially that will be payable as attorney fees to plaintiffs’ couns el. Most importantly, the modified judgment remedies the vote dilution imposed upon Lati no, Latina and African-American voters. Both witnesses who offered opinion testimony in the trial court on the subject of vote

3 Section 43 states in part, “The Suprem e Court, and the courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or di rect a new trial or further proceedings to be had.”5 dilution in defendant’s c ity council elections agreed that it occurred, although to differing degrees. The present settlement will bring this state of affairs to an end. The public interest is unequivocally advanced by th e settlement and nothing in section 128, subdivision (a)(8) stands in the way of us ac cepting the parties’ agreement. Nothing in this opinion should be construed as a statemen t of views that any error was committed by

the trial court. The judgment is modified as set fort h in the stipulation for order modifying judgment attached to the appe ndix of exhibits filed with this court on May 26, 2015. Upon remittitur issuance, the pa rties are to submit that stipulation to the trial court so it may enter a modified judgment. The judgme nt and order are affirmed in all other respects. The parties are to bear their own costs incurred on appeal and, pursuant to their agreement, the remittitur is to issue forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.