Morrow

We have before us a motion for stipulated reversal of the judgment of the trial court and dismissal of this appeal. Such motions are not authorized by statute or rule of court but by the decision of our Supreme Court in Neary v. Regents of University of California (1992) 3 Cal.4th 273 [ 10 Cal.Rptr.2d 859 , 834 P.2d 119 ].

Notice of appeal was filed in this court on June 24, 1997. The issues involved in the appeal have not been identified and briefed by the parties and the record has not yet been filed. What little we know about the case comes from the papers filed in support of the motion for stipulated reversal.

Evidently, plaintiff Andrew Morrow (Morrow) commenced this action against defendants Hood Communications, Inc. (Hood) and Fry & Associates (Fry) for the breach of leases pertaining to separate premises in San Mateo County owned by Morrow. Morrow alleged, among other things, that Hood was the parent corporation of Fry and liable as its alter ego. He additionally alleged that Hood and Fry “had engaged in a de facto merger that rendered Hood liable under the leases.” Fry did not deny liability. The primary issue at trial was the relationship between Hood and Fry.…

There are rare instances in which a judge of an inferior court can properly refuse to acquiesce in the precedent established by a court of superior jurisdiction. (See Caminker, Why Must Inferior Courts Obey Superior Court Precedents? (1994) 46 Stan.L.Rev. 817; Colby, Two Views on the Legitimacy of Nonacquiescence in Judicial Opinions (1987) 61 Tul. L.Rev. 1041.) This is, for me, such an instance.

I acknowledge that the opinion of the California Supreme Court in Neary v. Regents of University of California (1992) 3 Cal.4th 273 [ 10 Cal.Rptr.2d *927 859 , 834 P.2d 119 ] requires that the motion before us be granted. I would deny the motion, however, because I cannot as a matter of conscience apply the rule announced in Neary .

I do not refuse to acquiesce in Neary because I believe the opinion is analytically flawed and empirically unjustified, though, as I have elsewhere explained at length, that is my view. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1994) 22 Cal.App.4th 1814, 1825 [ 28 Cal.Rptr.2d 498 ] (conc. opn. of Kline, P. J.); see also People v. Barraza (1994) 30 Cal.App.4th 114 [ 35 Cal.Rptr.2d 377 ].) 1 My refusal is instead based on my deeply felt…

(1) We have before us a motion for stipulated reversal of the judgment of the trial court and dismissal of this appeal. Such motions are not authorized by statute or rule of court but by the decision of our Supreme Court in Neary v. Regents of University of California (1992) 3 Cal.4th 273 [ 10 Cal. Rptr.2d 859 , 834 P.2d 119 ].

Notice of appeal was filed in this court on June 24, 1997. The issues involved in the appeal have not been identified and briefed by the parties and the record has not yet been filed. What little we know about the case comes from the papers filed in support of the motion for stipulated reversal.

Evidently, plaintiff Andrew Morrow (Morrow) commenced this action against defendants Hood Communications, Inc. (Hood) and Fry & Associates (Fry) for the breach of leases pertaining to separate premises in San Mateo County owned by Morrow. Morrow alleged, among other things, that Hood was the parent corporation of Fry and liable as its alter ego. He additionally alleged that Hood and Fry "had engaged in a de facto merger that rendered Hood liable under the leases." Fry did not deny liability. The primary issue at trial was the relationship…