Norgart v. Upjohn Co.

KENNARD, J., Concurring and Dissenting.

I agree with the majority that we must reverse the Court of Appeal’s decision overturning the trial court’s *411summary judgment in defendants’ favor, but I do not agree with the majority’s reason for doing so.

The majority reverses the Court of Appeal because the majority concludes that defendants are entitled to summary judgment. I concur in reversing the Court of Appeal’s judgment, but I do so without deciding the merits of defendants’ summary judgment motion. I reject plaintiffs’ challenge to the summary judgment ruling because a party may not challenge on appeal a trial court ruling to which the party stipulated. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420 [185 Cal.Rptr. 654, 650 P.2d 1171] [“plaintiffs are estopped to complain of the trial court’s error because they participated in its commission”]; Cushman v. Cushman (1960) 178 Cal.App.2d 492, 498 [3 Cal.Rptr. 24] [“one will not be heard to urge error which he is estopped to raise, or which he has waived, by failure to make proper objection, by conduct, by stipulation, or otherwise, in the lower court”]; Orenstein v. United States (1st Cir. 1951) 191 F.2d 184, 193 [“An appellant will not ordinarily be permitted to complain of an error which he himself invited or which at his instance the court committed.”]; Saxton v. Toole (1992) 240 Ill.App.3d 204, 212 [181 Ill.Dec. 160, 608 N.E.2d 233, 239] [“A party cannot assert as reversible error actions of the trial court which were committed pursuant to that party’s stipulation or acquiescence.”].) Here, plaintiffs stipulated to the ruling granting defendants’ motion for summary judgment after the trial court had issued a tentative decision to deny the motion. Under settled law, plaintiffs may not challenge the stipulated ruling granting summary judgment.

Had the parties not stipulated to the ruling granting summary judgment, the trial court in all likelihood would have denied the summary judgment motion, consistent with its tentative ruling. The ruling would not have been appealable because the Legislature has decided not to permit an appeal from an order denying summary judgment (Code Civ. Proc., § 904.1; Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256 [75 Cal.Rptr.2d 681]), although a party may seek immediate appellate review by petitioning the Court of Appeal for a peremptory writ (Code Civ. Proc., § 437c, subd. (l); Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266 [83 Cal.Rptr. 237]).

Plaintiffs argue, in effect, that exceptional circumstances were present here warranting immediate appellate review because a recent Court of Appeal decision had established a precedent that, if valid and applicable, would have required a determination that their action was barred by the statute of limitations, making a trial on the merits a waste of judicial and litigant resources. Perhaps so. But the question whether immediate review is *412necessary to “prevent a needless and expensive trial and reversal” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 [157 Cal.Rptr. 693, 598 P.2d 854]) is one for the Court of Appeal to answer in exercising its discretionary writ review authority, not one for the parties to arrogate to themselves by stipulating to a ruling that the trial court, as its tentative ruling shows, probably would not otherwise have made. To permit the parties to manufacture appellate jurisdiction in this way subverts the Legislature’s determination making summary judgment denials subject to discretionary appellate review by writ petition rather than appealable as a matter of right.

In my view, the parties may not by stipulation artificially convert a nonappealable interim ruling denying summary judgment into an appealable final judgment. Because the majority concludes otherwise, I do not join the majority opinion.