Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. M72380
Premo, J.
Plaintiffs Richard Bains and Maxine Amalia Mesa Bains appeal from a judgment enforcing a settlement agreement between them and defendant David F. Norman. (Code Civ. Proc., § 664.6.) We find that plaintiffs have waived their right to appeal by accepting a benefit of the settlement. We therefore dismiss the appeal.
BACKGROUND
Plaintiffs sued defendant and others for injuries resulting from an automobile accident. In March 2006, defendant agreed to plaintiffs’ demand to settle the case for his insurance policy limits, $50,000 for each plaintiff. On March 7, defendant gave plaintiffs a written settlement agreement stipulating that (1) lien claimant Blue Cross be a co-payee on one of the checks, and (2) plaintiffs indemnify defendant for third-party claims arising from the accident or settlement. On April 12, the trial court granted defendant’s unopposed motion for an order determining that the settlement was in good faith. (Code Civ. Proc., § 877.6, subd. (a)(2).) Plaintiffs, however, refused to sign the settlement agreement so long as it contained the lien and indemnity provisions. On September 15 at a settlement conference concerning the remaining defendants, plaintiffs and those defendants announced on the record that they had settled the case for $80,000. At the same time, plaintiffs informed the trial court that they had settled with defendant. The trial court then vacated the October 2 trial date. On October 6, plaintiffs filed a motion to reinstate the trial date on the ground that there was no settlement agreement because defendant insisted on the lien and indemnity provisions. Defendant opposed the motion and filed the motion to enter judgment on the settlement. Plaintiffs opposed the motion on the ground that there was no settlement. They also asserted that defendant’s refusal to pay breached any settlement agreement because the breach deprived them of the ability to finance the lawsuit against the remaining defendants. The trial court reasoned that the lien provision was an immaterial part of the settlement agreement and declined to hold that the indemnity provision was part of the settlement agreement. It then denied plaintiffs’ motion and granted defendant’s motion. On December 1, it entered judgment against defendant for $50,000 as to each plaintiff. On December 19, it granted defendant’s application to deposit the money with the court. (Code Civ. Proc., § 685.030, subd. (d)(2).) On January 11, 2007, plaintiffs filed their notice of appeal from the judgment.
More precisely, one of the settling defendants before the trial court at the settlement conference recited the settlement at issue and announced what the trial court had already known by virtue of its order granting defendant’s motion for a good faith settlement determination: “And there has been recorded also a settlement by the remaining defendant in the case who is Mr. Norman. We understand that that settlement is in the amount of $100,000.” At this point, plaintiffs offered, “It’s 50,000 each,” and “Of the 100,000. But I’m just saying it’s 50,000 for each plaintiff. That’s the way the settlement is broken down.” In any event, the trial court’s minutes state the following: “The Court is informed that the case has previously settled with the remaining Defendant, David Norman.”
Upon the parties’ motions, we augmented the appellate record to expose what happened after plaintiffs filed the notice of appeal.
On April 13, 2007, plaintiffs filed an ex parte application for an order to release the money to them. The supporting declaration states the following: “At the time defendant Norman initially offered to deliver the funds in question to plaintiff, I declined acceptance because I had not had an opportunity to research the issue regarding whether acceptance of funds would jeopardize plaintiff’s [sic] appeal. I have since completed that research and have learned that acceptance of the funds will have no effect on plaintiffs’ appeal.” Defendant filed a responding declaration to the effect that he had deposited the money to curtail interest accrual and made no agreement with plaintiffs as to what effect release of the money would have on plaintiffs’ appeal. The trial court granted the application, and plaintiffs concede that they obtained the money.
Defendant specifically stated: “That initially I did have communications with plaintiffs [sic] counsel indicating that I did not see why she did not secure release of the funds on behalf of her client believing that this would not affect any rights of appeal. However, in subsequent communications with plaintiffs [sic] counsel I advised her that I had not researched that issue and was unsure as to what affect release of these funds would have on any subsequent appellate issues. I renewed this statement to [plaintiffs’ counsel] by e-mail after receiving notice from her of this ex parte application. [¶] . . . That I make no representations to [plaintiffs’ counsel or plaintiffs] as to how release of these funds would affect any rights of appeal and have urged [plaintiffs’ counsel] to independently research this issue on her own behalf. [¶] . . . That if the appeal goes forward this issue will be researched and, if in fact release of the funds would affect any appeal rights, those issues will be raised at that time.”
The order, drafted by plaintiffs’ counsel, states that “acceptance of the funds . . . does not affect the pending appeal.” Courts cannot render advisory opinions on controversies which the parties fear will arise, but which do not presently exist. (Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1043.)
DISCUSSION
Plaintiffs contend that the trial court erred by granting defendant’s motion for judgment because the requirements for an order under Code of Civil Procedure section 664 order were not met in that there was neither a writing signed by the parties nor an oral pronouncement before the court. They also argue that the trial court erred by holding that the lien provision was immaterial. They finally reiterate their theory that defendant breached any agreement by failing to promptly pay. As he anticipated, defendant counters that plaintiffs waived their right to appeal by accepting the benefits of the settlement. We agree with defendant.
“ ‘It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom. [Citations.]’ . . . The rule is based on the principle that ‘the right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other. [Citation.]’ . . . Although the acceptance must be clear, unmistakable, and unconditional . . ., acceptance of even a part of the benefit of a judgment or order will ordinarily preclude an appeal from the portion remaining. . . . Stated more generally, ‘ “. . . where an appellant is shown to have received and accepted advantages from a judgment to which [he or she] would not be entitled in the event of a reversal of the judgment . . .,” ’ the acceptance of even part of the judgment precludes the appeal.” (Epstein v. DeDomenico (1990) 224 Cal.App.3d 1243, 1246 (Epstein).) This rule applies with equal force to the acceptance of benefits under a settlement reduced to a judgment. (Id. at pp.1247-1248.) Here, by accepting the judgment amount, plaintiffs placed themselves squarely within Epstein’s waiver rule. If we reversed the judgment and vacated the settlement, plaintiffs would have to return the money, since, without the judgment or settlement, they would not be entitled to it.
“[T]here is an exception to the general rule where the appellant’s right to the accepted portion of the judgment is not disputed on appeal. In that case, the appeal as to the disputed portion may proceed, because a reversal will have no effect on the appellant’s right to the benefit he or she has accepted.” (Epstein, supra, 224 Cal.App.3d at p. 1246; see Al J. Vela & Associates, Inc. v. Glendora Unified School Dist. (1982) 129 Cal.App.3d 766, 770 [exception to general waiver rule exists “where appellant concededly is entitled to the accepted benefits, and his right to them will not be affected by reversal of the judgment”].)
Plaintiffs argue that this exception applies because a reversal will not affect their entitlement to the money given that defendant has admitted in this litigation that his policy limits are inadequate to compensate them for their injuries. We disagree.
If, in the event of a reversal and retrial, the amount awarded to and accepted by the appellant in the original judgment could conceivably be smaller in the second judgment, the conceded portion and the contested portion of the judgment are interdependent rather than severable and the acceptance of the benefit of one portion precludes an appeal from the second portion. (Mathys v. Turner (1956) 46 Cal.2d 364, 366.)
Here, at a trial after reversal, there conceivably could be a defense verdict or verdicts less than $50,000 for each plaintiff. The exception to waiver based on a concession as to the benefit accepted therefore does not apply. (See Epstein, supra, 224 Cal.App.3d at pp. 1245-1248 [appellants, who had entered into a settlement of a dispute over a real estate transaction during a court-supervised settlement conference which provided for the return of the appellants’ $75,000 security deposit, obtained an order returning the deposit, and then became dissatisfied with the agreement and opposed the motion for entry of judgment; court held the appellants waived their right to appeal by accepting the benefits of the settlement and were barred from appealing its enforcement].)
DISPOSITION
The appeal is dismissed.
WE CONCUR: Rushing, P.J., Elia, J.