State of California Ex Rel. State Lands Commission v. Superior Court

KENNARD, J., Concurring.

I join the majority in reaffirming California’s “artificial accretion rule” under which the ownership of land formed over *82time by accretion along a tidal or navigable body of water depends upon the primary or proximate cause of the accretion: If the accretion results from artificial activities, the land belongs to the state in trust for the public; if, however, the accretion results from natural activities, the land belongs to the riparian owner (that is, the owner of the property bordering the water). I agree also that, for purposes of this rule, accretion will be deemed artificial only if it is the direct result of human activities (such as dredging or the installation of wing dams or levees) in the immediate vicinity of the accreted land, and that accretion will not be deemed artificial “merely because human activities far away contributed to it.” (Maj. opn., ante, at p. 80.) Thus, in this case the state cannot prevail based on evidence that 19th century hydraulic mining operations washed into the American and Feather Rivers great quantities of earth that natural river flows gradually carried far downstream, resulting eventually in the formation of the disputed 12-acre parcel along the bank of the Sacramento River at Chicory Bend.

I write separately to make one point about Neary v. Regents of University of California (1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119] (hereafter Neary), which the majority discusses and distinguishes in explaining why we denied a joint motion of the parties (the state and the riparian landowners) to effectuate a settlement by dismissing review.

In presenting their motion to dismiss review, the parties represented that they had negotiated a settlement after this court granted the state’s petition for review of the published decision of the Court of Appeal, and that in their agreement they had conditioned both the settlement and the request for dismissal upon this court’s issuance of an order that the Court of Appeal’s opinion “shall remain unpublished.”1 In our order denying the motion, we explained that we were doing so because of “the public interest in having the important and continuing legal issues decided.”

The reason stated in the order was correct and complete; no further explanation should have been required. Yet, because of this court’s decision in Neary, supra, 3 Cal.4th 273—holding that “as a general rule, the parties should be entitled to a stipulated reversal to effectuate settlement absent a showing of extraordinary circumstances that warrant an exception to this general rule” (id. at p. 277)—the majority feels compelled to explain why a *83conditional settlement that, under Neary, would be sufficient justification to reverse a trial court judgment is not also sufficient justification to terminate appellate proceedings without a published opinion. (See maj. opn., ante, at p. 62.)

I dissented from this court’s opinion in Neary, supra, 3 Cal.4th 273. Because of my strongly held view that “the ultimate purpose of a judgment is to administer the laws of this state, and thereby to do substantial justice,” I had proposed that “[t]he presumption should be against stipulated reversal, not in favor of it.” (Neary, supra, 3 Cal.4th at pp. 286-287 (dis. opn. of Kennard, J.).) As I said in Neary: “Parties are free at any time to settle their private dispute on terms mutually agreeable, and should be encouraged to do so. What they should not be free to do is to include within those terms of settlement the destruction of a judgment, a public product fashioned at the cost of public resources, and to require an appellate court to accomplish that destruction merely to facilitate resolution of their private dispute.” (Id. at p. 295 (dis. opn. of Kennard, J.).) A majority of this court disagreed with me in Neary and in sweeping terms adopted a contrary rule giving litigants free rein to stipulate to the destruction of a judgment to effectuate settlement. (Neary, supra, 3 Cal.4th at p. 284.)

Since this court’s decision in Neary, supra, 3 Cal.4th 273, the United States Supreme Court has considered these issues and has held, in a unanimous opinion, that, absent exceptional circumstances, a settlement of the parties is not a proper ground to vacate a prior judgment in the case, whether that judgment was rendered in the trial court or an appellate court. (U.S. Bancorp v. Bonner Mall (1994) 513 U.S. _, _ [130 L.Ed.2d 233, 243, 115 S.Ct. 386, 393].) The court explained: “As always when federal courts contemplate equitable relief, our holding must also take account of the public interest. ‘Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.’ [Citation.] Congress has prescribed a primary route, by appeal as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would—quite apart from any consideration of fairness to the parties—disturb the orderly operation of the federal judicial system.” (U.S. Bancorp v. Bonner Mall, supra, 513 U.S. _, _ [130 L.Ed.2d 233, 243, 115 S.Ct. 386, 392].)

Rejecting the argument that courts should grant settlement-related stipulated reversals because the law favors settlement (an argument that figured *84strongly in the majority’s rationale in Neary, supra, 3 Cal.4th 273), the United States Supreme Court said: “A final policy justification urged by petitioner is the facilitation of settlement, with the resulting economies for the federal courts. But while the availability of vacatur may facilitate settlement after the judgment under review has been rendered and certiorari granted (or appeal filed), it may deter settlement at an earlier stage. Some litigants, at least, may think it worthwhile to roll the dice rather than settle in the district court, or in the court of appeals, if, but only if, an unfavorable outcome can be washed away by a settlement-related vacatur. And the judicial economies achieved by settlement at the district-court level are ordinarily much more extensive than those achieved by settlement on appeal. We find it quite impossible to assess the effect of our holding, either way, upon the frequency or systemic value of settlement.” (U.S. Bancorp v. Bonner Mall, supra, 513 U.S. _, _ [130 L.Ed.2d 233, 243-244, 115 S.Ct. 386, 393], original italics.)

In Neary, I predicted that when faced with a proposal by litigants to annul an appellate decision to effectuate settlement, this court would be forced to retreat from its sweeping approval of stipulated reversals. (Neary, supra, 3 Cal.4th at pp. 287-288 (dis. opn. of Kennard, J.).) What I predicted then has become reality now in this case. The majority, however, is not yet prepared to abandon Neary as an appropriate rule for the judgments of trial courts. We are thus left with the anomalous situation of having one rule for trial court judgments and a different and virtually opposite rule for appellate judgments. Like the United States Supreme Court (see U.S. Bancorp v. Bonner Mall, supra, 513 U.S. _, _ [130 L.Ed.2d 233, 243-244, 115 S.Ct. 386, 393]), I would afford all judgments substantial protection against settlement-related motions for stipulated reversal. For this reason, I do not join in that part of the majority opinion that tries to distinguish the situation here—in which the parties seek to destroy the precedential value of an appellate decision—from the situation we faced in Neary.

Under our Rules of Court, an opinion of the Court of Appeal that has been certified for publication by that court is superseded and will not be published if this court grants review. (Cal. Rules of Court, rule 976(d).) If this court subsequently dismisses review, thereby reinstating the Court of Appeal’s opinion as the final decision of the cause, the Court of the Appeal’s opinion “remains unpublished . . . unless the Supreme Court expressly orders otherwise.” (Id., rule 29.4(c).)