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After Adolph v. Uber, parties “accept the inevitable” and stipulate to reverse

Tim Kowal     October 26, 2023

The employer-defendants made good use of the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana (2022). They compelled arbitration of plaintiff-employee’s individual claims, and then got the PAGA claims dismissed. Plaintiff appealed from the dismissal.

But then as court watchers anticipated, the California Supreme Court handed down Adolph v. Uber Technologies, Inc., holding that arbitration of individual labor claims did not mean the PAGA claims must be dismissed—the employee still has standing to pursue the PAGA claims. Adolph works a clear change in the law.

And that change means the plaintiff-employee’s appeal was sure to result in reversal.

So rather than brief, argue, and wait for the inevitable, the employer stipulated to summary reversal. Code of Civil Procedure section 128, subdivision (a) grants every court "the power to do all of the following: [¶] . . . [¶] (8) To amend and control its process and orders so as to make them conform to law and justice. 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 that there is no reasonable possibility that the interests of nonparties or the public will be affected, and the reasons 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.”

Usually, this is a very high bar to meet. And given that few respondents are anxious to part with favorable judgments, stipulated summary reversals are rare. But it is granted here.

Adolph makes a reversal highly likely. And “[i]f there is reversible error, prompt resolution of the appeal without the considerable expense to the parties of briefing and taxpayer incurred costs of the internal decisionmaking process within the court certainly serves the public interest.” (Union Bank of Cal. v. Braille Inst. of Am. (2001) 92 Cal.App.4th 1324, 1330-1331.) And the existence of a reversible error also means that whatever erosion of public trust may be occasioned by a stipulated reversal is “materially mitigated when the reversal would have occurred in any event and the parties agree to accept the inevitable.” (Id.)


While you should consider a stipulated reversal as part of a settlement, they are hard to get. The Legislature enacted a presumption against them in Code of Civil Procedure section 128(a)(8), and the burden is difficult to meet. (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999.) So also be sure to consider a settlement that does not depend on getting a stipulated reversal.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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