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Dismissed Appeal

Stipulations to Nonappealability Are Enforceable

Tim Kowal     August 11, 2021

Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable?

This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2 Aug. 4, 2021) no. B310067 (nonpub. opn.), and is answered in the negative. After discussing the case, I explain why I think the result is both unsupported and incorrect.

The parties to a loan dispute in Summit Bridge decided to settle their claims. Like in many such settlements, the parties agreed to a stipulated judgment in the event of nonperformance. As part of the agreement, the guarantor agreed to continue pursuing a cross-complaint against the borrower in hopes of squeezing out some payment for the lender.

The twist on the stipulated judgment: the parties agreed that "the judgment to be entered ... shall not be appealable."

The guarantor got almost a third of the repayment out of the borrower. The lender was unhappy, but the guarantor thought he had done enough and filed a motion to enforce the settlement for a finding he had satisfied his obligations under the settlement. The trial court disagreed and entered the stipulated judgment against the guarantor. (This seems a little strange procedurally, because it does not appear the lender filed its own motion to enforce the settlement.)

The guarantor appealed. Predictably, the lender argued the appeal should be dismissed because the guarantor-appellant had stipulated the judgment was nonappealable.

The guarantor-appellant, on the other hand, argued he was not appealing from the judgment, but rather from the order denying his motion to enforce the settlement agreement and the trial court's resulting finding the appellant had not complied with the settlement.

This was a subtle and shrewd argument. And it probably should have worked. “It is well established that an order denying a motion to enforce a settlement is appealable as a final judgment. (E.g., Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1251, 115 Cal.Rptr.3d 203; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183, 84 Cal.Rptr.3d 689.)” (Wanke, Indus., Commercial, Residential, Inc. v. Superior Court of San Diego Cnty. (2012) 209 Cal.App.4th 1151, 1172 n.23.) (These authorities were not citied in the opinion.)

Unfortunately for the appellant, he did not appeal from the order denying his motion to enforce the settlement. As the court pointed out, his notice of appeal only indicated that his appeal is from a judgment after a court trial, and not from the order denying his motion to enforce settlement.

And as to the judgment, the appellant had expressly waived the right to appeal it. “‘It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions: 1. The attorney must have the authority to waive a party's right to appeal. 2. The waiver must be express and not implied. 3. The waiver must not have been improperly coerced by the trial judge.’ ” (PG&E “San Bruno Fire” Cases (2019) 43 Cal.App.5th 596, 607.) The court noted that the appellant failed to demonstrate that any of these conditions preclude enforcement of his waiver of the right to appeal.

Appeal dismissed.

Interestingly, and contrary to the more recent authorities above holding that orders denying motions to enforce a settlement are appealable, the court cited a prior case holding orders denying motions to enforce a settlement are not appealable: "Panossian's purported challenge to the order denying his section 664.6 motion does not salvage his appeal. The trial court's order denying the motion to enforce the settlement is a nonappealable interlocutory order. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1294 (Doran).) Panossian cites no statute that authorizes the appeal of interlocutory section 664.6 orders."

The Doran opinion indicates that court had found no other cases holding that denials of motions to enforce a settlement are independently appealable. Yet just 13 years later, the Wanke case mentioned above (but not mentioned in the Summit Bridge opinion) held that the same proposition had been "well established."

The result of Summit Bridge strikes me as incorrect. True, the underlying merits of the loan dispute were settled, and the parties' agreement to waive appellate challenges should be enforced. But what the parties had not agreed to was whether the material terms of the settlement had been substantially performed. And the parties had not waived their rights to adjudicate that question. The settlement was a separate and independent contract from the underlying loan. The parties were entitled to an adjudication on that independent contractual dispute, complete with the statutory right of appellate review.

In this commentator's respectful view, the Summit Bridge case was incorrectly decided.

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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