Opinion
B165834.
11-20-2003
NICK MARINO, Plaintiff and Appellant, v. KENOFF & MACHTINGER et al., Defendants and Respondents.
Brian N. Beyer; Jane Osborne McKnight, for Plaintiff and Appellant. Kenoff & Machtinger and Leonard S. Machtinger for Defendant and Respondents.
The underlying action is one for legal malpractice. This proceeding involves a motion to dismiss the appeal taken by the plaintiff and cross-defendant concerning a stipulated judgment entered on February 27, 1998. The grounds asserted to dismiss the appeal are that the parties expressly agreed as part of the stipulated judgment to waive any right to vacate or modify the judgment, and further expressly agreed to waive the right to appeal. We now dismiss.
FACTS AND PROCEEDINGS BELOW
Plaintiff, cross-defendant and appellant, Nick Marino, is a professional screenwriter. In the late 1980s, Marino sought screenwriting credit for "Godfather III," a film ultimately produced and directed by Francis Ford Coppola and released by Paramount Studios. The Writers Guild of America denied his claim for screenwriting credits.
In 1994 Marino brought a legal malpractice action against defendants, cross-complainants and respondents, the law firm of Kenoff and Machtinger (K & M), and others. Marinos complaint alleged K & M committed legal malpractice in representing him in the Writers Guild of America credits arbitration and in a subsequent federal lawsuit against the Writers Guild of America, Mario Puzo, and Francis Ford Coppola.
K & M cross-complained against Marino to recover $91,664.53 in legal fees and costs it claimed Marino owed for legal services provided to him prior to June 1993.
The trial court granted summary judgment in favor of K & M on all causes of action in the complaint and entered judgment against Marino in January 1998.
K & Ms cross-complaint for legal fees remained unresolved. Thereafter, on February 12, 1998, the parties entered into a stipulation for judgment on the cross-complaint to permit Marino to pursue an immediate appeal of the summary judgment. Marino agreed to pay $75,000 in legal fees on the cross-complaint, plus interest at 10 percent per year from entry of judgment, if he were to lose on his complaint for legal malpractice. K & M, for its part, agreed to accept this amount and to stay execution on the judgment under four specified conditions:
(1) until the time for appeal had lapsed without Marino having filed a notice of appeal of the summary judgment;
(2) if Marino appealed from the summary judgment, then until a "final determination of the aforesaid appeal affirming the Summary Judgment;"
(3) if the summary judgment was reversed on appeal then until K & M obtained a second judgment on Marinos complaint; or
(4) if the summary judgment was reversed on appeal and Marino thereafter obtained a judgment in his favor on his complaint for legal malpractice.
As part of the stipulated judgment on the cross-complaint for legal fees the parties agreed: "The judgment shall become final for all purposes upon entry thereof, and each party waives: (1) any right of appeal therefrom, (2) any notice of entry of Judgment, (3) any hearing, motion or trial regarding the Judgment or entry thereof, (4) any rights which Marino may have, or which may accrue in the future to vacate or modify the judgment under C.C.P. Sec. 473 or otherwise and (5) any offset claimed by Marino against K & M."
Italics added.
The court entered judgment on the stipulation on February 27, 1998.
On appeal of the first summary judgment, we reversed and remanded to the trial court for further proceedings.
Marino v. Kenoff & Machtinger (B142506) filed June 14, 1999.
Six months later K & M filed a second motion for summary judgment. The trial court granted the motion in part and denied it in part. The court conducted an evidentiary hearing on the remaining issues and on August 9, 2000, again entered judgment for K & M on Marinos complaint for legal malpractice.
In an unpublished opinion filed December 10, 2001, we affirmed the judgment in favor of M & K. Marino filed a petition for rehearing which this court denied on January 7, 2002. The California Supreme Court denied his petition for review on March 13, 2002, and on November 4, 2002, the United States Supreme Court denied his petition for certiorari.
Marino v. Kenoff & Machtinger (B412506) filed December 10, 2001.
On October 24, 2002, Marino filed a motion in the trial court to vacate the stipulated judgment on K & Ms cross-complaint. In his motion Marino asserted the stipulated judgment should be set aside, because (1) he only recently discovered K & M had committed an undisclosed act of malpractice by allegedly failing to secure court approval for a child custody agreement in 1991; and (2) by breaching the stipulated agreement by aggressively pursuing discovery to prepare to execute on the stipulated judgment.
The trial court found Marinos claims without merit and denied his motion. This appeal followed.
DISCUSSION
MARINO EXPRESSLY WAIVED HIS RIGHT TO VACATE, MODIFY OR APPEAL ANY ASPECT OF THE STIPULATED JUDGMENT ONCE HIS PRIOR APPEAL TO THIS COURT ON THE MERITS OF HIS COMPLAINT BECAME FINAL.
After the parties filed their briefs on appeal K & M moved to dismiss, arguing Marino had waived, as part of the stipulated judgment, his right to vacate the judgment and further waived his right to appeal the judgment. Marino filed opposition, to which K & M responded. We now dismiss. Marino cannot appeal from a judgment to which he previously stipulated as part of a settlement between the parties.
Papadakis v. Zelis (1991) 230 Cal.App.3d 1385, 1387.
"It is the universal rule that a judgment or order will not be disturbed on an appeal prosecuted by a party who expressly consented to the making thereof. This doctrine is established in this state by a long line of decisions. (See Imley v. Beard, 6 Cal. 666; Meerholz v. Sessions, 9 Cal. 277; Brotherton v. Hart, 11 Cal. 405; Coryell v. Cain, 16 Cal. 572; Mecham v. McKay, 37 Cal. 158; La Societe, etc. v. Beardslee, 63 Cal. 160; Haskins v. Jordan, 123 Cal. 162; Estate of Lorenz, 124 Cal. 495; Pacific Paving Co. v. Vizelich, 1 Cal.App. 283.) It is also settled in this state that where a party who has expressly consented to and stipulated for the making of a certain judgment or order, attempts to appeal from the judgment or order so agreed to and made in pursuance of the consent and stipulation, the appellate court will not consider the appeal at all, but will dismiss it on motion made in that behalf. . . ."
Hibernia Sav. & Loan Soc. v. Waymire (1907) 152 Cal. 286, 287-288 [appeal dismissed from consent judgment in which the defendant stipulated to waive his right to appeal from such judgment]; see also, Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105, 1108 [stipulation to binding arbitration constituted an express waiver of the right to secure appellate review].
There are exceptions to this "universal" rule. A party will not be found to have waived the right to appeal in the following situations: (1) if an attorney lacked the authority to waive his clients right to appeal; (2) if waiver of the right to appeal was impliedly rather than expressly made; (3) if the waiver of the right to appeal was improperly coerced by the trial court; (4) if the judgment as entered is different from or goes beyond the terms of the parties stipulation; (5) if the trial court lacked subject matter jurisdiction; or (6) if the complaint was fatally defective on its face. Marino makes no argument any of these exceptions applies in the case at bar.
See, e.g., Reed v. Murphy (1925) 196 Cal. 395, 399 [citing exceptions]; McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 488 [listing conditions]; see also, 9 Witkin, California Procedure (4th ed. 1997) Appeal, section 190, pages 245-246 and cases collected.
In the present case the parties stipulated to entry of judgment on K & Ms cross-complaint under the noted conditions. As part of the stipulation, the parties expressly agreed to waive any right to appeal any aspect of the judgment on the cross-complaint. This appeal is an attempt to vacate or modify the stipulated judgment in direct contravention of the parties express agreement to waive present or future rights to vacate or modify the judgment and to waive the right to appeal from the stipulated judgment.
Because the parties expressly agreed to waive the right to appeal, we agree with K & M this appeal challenging the stipulated judgment must be dismissed. "Concluding, as we must, that the appellants consented to the decree in the precise form in which it was rendered, that they thereby waived any errors therein, and that it is not void upon its face, there remains nothing to be reviewed upon an appeal therefrom, and the appeal is dismissed."
See Reed v. Murphy, supra, 196 Cal. 395, 401.
Marino argues a motion to dismiss an appeal should be denied in situations where the appellate court has to reach the merits of the appeal to know whether the claims on appeal are meritorious and thus whether the appeal should be dismissed. Marino claims K & Ms motion to dismiss is based on the entire record, including the parties briefs on appeal and thus argues his appeal is not subject to dismissal because it will require the court to review the entire record to determine the merits of the motion to dismiss. To the contrary. Analyzing the motion to dismiss required nothing more than reading the three-page judgment entered on the stipulation and taking judicial notice of the subsequent history of our 2001 opinion affirming the judgment in favor of K & M. Because no lengthy review was necessary, dismissal is proper.
In re Wunderles Estate (1947) 30 Cal.2d 274, 279 [motion to dismiss appeal denied because it was based on the same grounds as urged to affirm the judgment which "clearly involves a determination of the case upon its merits."]; Pacific States Sav. & Loan Co. v. Mortimer (1945) 70 Cal.App.2d 811, 813 [in the absence of a record to review court could not determine whether appeal was frivolous and should be dismissed].
Evidence Code sections 452, subdivisions (a), (c) and (d); 459, subdivision (a).
See Henry H. Cross Co. of Calif. v. Prentice (1934) 137 Cal.App. 497, 500 [no lengthy review was necessary because the material facts appeared on the face of appellants opening brief making dismissal proper].
DISPOSITION
The appeal is dismissed. Respondents are awarded costs on appeal.
We concur: PERLUSS, P.J. and WOODS, J.