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Court Split

Order granting motion to enforce settlement held not appealable, furthering a split of authority

Tim Kowal     January 8, 2024

Are orders on motions to enforce settlement agreements appealable? They are not expressly listed in the appealability statute. But appellate courts often treat them as functionally the same as a judgment. That did not happen, however, in House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.], which dismissed the appeal.

The parties to this trespass and nuisance case reached a settlement, with defendants to pay $50,000. But the parties couldn’t manage to bring the settlement over the finish line, and the plaintiff claimed the deal was off, demanding $471,000 or to set the case for trial. The trial court, unsurprisingly, upheld the settlement—which both parties had confirmed on the record. Granting the defendants’ motion to enforce the settlement under Code of Civil Procedure section 664.6, the court ordered the case “dismissed upon payment of the funds by defendant.” The plaintiff appealed.

Dismissing the appeal, the Second District Court of Appeal held that the order granting the motion to enforce the settlement was not an appealable order. No judgment has been entered. And the order is not among those listed in Code of Civil Procedure section 904.1, the appealability statute.

The court noted that an order may still be appealable if the order has the “substance and effect” of an appealable order, citing *Doran v. Magan* (1999) 76 Cal.App.4th 1287, 1293. But here, the order on its face contemplated future action, namely, that the defendant was to pay the $50,000 settlement sum, and then the court was to dismiss the case. And the record did not indicate that either of those two things had happened.

There appears to be a split of authority on the appealability of orders on motions under Code of Civil Procedure section 664.6 to enforce settlements.

As discussed in the 2021 opinion in Rezzadeh v. Chiu (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.), an order granting a motion to enforce a settlement under Code of Civil Procedure section 664.6 is appealable. (Hines v. Lukes (2008) 167 Cal.App.4th 1174.) Rezzadeh dealt with an order denying a motion to enforce a settlement, but the court held there was “no functional difference” between a grant and a denial of costs because the trial court's order “functionally terminated all litigation between the parties.” And besides, “if this were not the case the trial court's order would be insulated from any form of review....”

But Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 73 Cal.App.5th 1100, went the other way on this. Sanchez held, in a published opinion, that an order denying enforcement of a settlement agreement under Code of Civil Procedure section 664.6 was not appealable. (Tim Kowal, “In a Confusing Appellate Opinion, Denial of Post-Settlement Fees Held Not Appealable,” Jan. 20, 2022.)

The upshot is that orders on a motion to enforce a settlement under Code of Civil Procedure section 664.6 need to be considered very carefully for appealability. This is a good time to consult an appellate specialist.


The unpublished Rezzadeh opinion, relying on the published Hines decision, noted that an order on a section 664.6 motion should be appealable where it “functionally terminated all litigation between the parties.” Here, the court appears to conclude that the case is not terminated—functionally or otherwise—because the defendant still has to pay, which will trigger dismissal. And then the plaintiff can appeal. So the plaintiff is not deprived of her right to appeal.

But is this really true? What if the defendant fails to pay? This would put the plaintiff in a sticky position. Remember, the plaintiff no longer wants to settle, so if she successfully litigates to compel payment, she will open herself up to the argument that she has accepted the benefit of the judgment.

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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