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Waiver of Right to Appeal

Stipulated Judgment and Waiver of Right to Appeal Did Not Result in Dismissal of Appeal

Tim Kowal     March 16, 2021

Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal, as the stipulation means the appellant is not "aggrieved," and thus lacks standing.

That was not the case in Park Lane Assocs., LP v. Alioto (D1d4 Mar. 5, 2021) No. A155781 (unpublished), which involved a landlord-tenant dispute over building habitability. The parties agreed to a stipulated judgment and an express waiver of tenants' right to appeal. Yet when the unhappy tenants did appeal, the First Appellate District did not dismiss the appeal and instead reviewed appellants' arguments on the merits (but still affirmed the judgment).

But: tenant-appellants would have been better off had the Court of Appeal simply dismissed, as the court also found tenants were liable for landlord's attorneys' fees on appeal.

In this luxury-rental dispute, landlord agreed to reduce rent as an accommodation for the disruptions caused by construction to the upstairs penthouse, and tenants agreed to entry of a stipulated judgment in the event of breach and a waiver of the right to appeal. When more construction resumed, tenants filed suit. Landlord moved to vacate the dismissal of its prior eviction action, which was granted. The trial court entered the stipulated judgment based on the parties' settlement agreement.

Tenants appealed.

Stipulated Judgments and Express Waiver of Appeal Did Not Waive Appeal Regarding Challenge to the Underlying Agreement: Landlord argued the appeal should be dismissed because tenants had waived their right to appeal. The court, somewhat reluctantly, rejected landlord's argument.

"It is well settled that a party may waive the right to appeal, as long as the waiver is clear and express. (Ruiz v. California State Automobile Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 603 (Ruiz); Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952 (Guseinov).)" And here, the agreement was clear and express. "But here, the Aliotos challenge the enforceability of the very agreement that waives their appellate rights. Rather than treating this challenge as barred by the waiver, we will consider it."

The court went on to find that tenants' challenge to the settlement agreement – namely, that they could not be deemed to have waived future challenges to uninhabitability – had been decided in an earlier appeal, and thus was barred under the doctrine of law of the case.

Arguments Made for the First Time in Appellant's Reply Brief Deemed Waived: Tenant-appellants also waived an issue made for the first time in their reply brief. The argument is a new one and subject to the general rule that we do not consider contentions raised for the first time in a reply brief. (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 ["An appellant . . . forfeits an issue by failing to raise it in his or her opening brief"].)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

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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