Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 05CC06946 Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.)
Law Offices of Kent L. Vallette and Kent L. Vallette for Plaintiff and Appellant.
Cummins & White and Annabelle M. Harris for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiff De La Secura, Inc. (DLS) appeals from the trial court’s order under Code of Civil Procedure section 664.6, enforcing a settlement reached before the court between DLS and defendant Salem Lutheran Church of Orange, California (Salem). The parties reached their agreement after the trial court granted Salem’s in limine motion excluding evidence DLS relied on to support its claims. Under the settlement, the parties agreed to dismiss with prejudice their respective claims against each other, with Salem being designated as prevailing party for attorney fee purposes. DLS contends the settlement constituted a stipulated judgment for challenging on appeal the trial court’s ruling on Salem’s motion in limine, which DLS contends precluded it from presenting its case at trial.
All statutory references are to the Code of Civil Procedure.
We conclude the settlement between DLS and Salem was not a stipulated judgment entered into merely for the purpose of facilitating DLS’s appeal of the trial court’s in limine ruling, but represented the agreement of the parties to end the litigation between them. Because DLS may not appeal the trial court’ in limine ruling following a voluntary settlement, we grant Salem’s motion to dismiss the appeal.
I
Factual and Procedural Background
DLS agreed to serve as general contractor for a room addition at a school operated by Salem. In performing the work, DLS and/or its subcontractor, Lavey Roofing Services, Inc. (Lavey), removed the roof over part of the existing school, in preparation for the installation of a new roof. When rain was forecast, Lavey attempted to protect the interior of the school by using plastic tarps, but its efforts failed. As a result, rainwater damaged the interior of the building and its contents. DLS repaired the damage and completed its project.
DLS attempted to charge Salem for the repair costs due to the rainwater intrusion. When Salem refused to pay, DLS sued Salem for breach of contract, common counts, enforcement of mechanics lien, and implied contractual indemnity. DLS also sued Lavey for negligence and breach of contract, and implied contractual indemnity. Lavey cross-complained against Salem and DLS, and Salem cross-complained against Lavey and DLS. In its first amended complaint, DLS alleged Salem breached provisions of the construction agreement requiring Salem to obtain “all risk” insurance with course of construction coverage, and to pay DLS for repairing any damage caused by storm or other natural disaster.
Salem brought a motion in limine to “exclude all evidence” of DLS on the ground that its complaint failed to state a cause of action against Salem. The trial court granted the motion, concluding (a) DLS had waived any requirement that Salem procure “all risk” insurance because it proceeded with the project despite Salem’s failure to procure the insurance, and (b) the contract did not shift liability to Salem for harm caused in substantial part by the negligence of DLS or Lavey. The trial court’s ruling precluded DLS from introducing evidence that Salem breached the contract by failing to obtain all risk insurance. DLS could, however, present evidence on its claim that Salem breached the contract provision to pay for repair due to storm or other natural disaster, but the court ruled that Salem would prevail on that claim if the jury determined the negligence of DLS or Lavey constituted a substantial factor in causing the rain damage.
After its ruling, the trial court invited the parties to return the following day for a settlement conference. The settlement conference convened at 9:00 a.m., and at 1:50 p.m., DLS and Salem announced they had settled the case. With the parties present, counsel put a settlement on the record requiring DLS and Salem to dismiss their claims against each other with prejudice, and declaring Salem the prevailing party for an attorney fee award. The settlement also provided that Salem would dismiss its cross-complaint against Lavey in return for a waiver of costs. Shortly thereafter, DLS and Lavey agreed to resolve their respective cross-complaints against each other by binding arbitration. Following Salem’s motion, the trial court awarded Salem attorney fees of $85,000.
DLS, however, did not pay the attorney fee award, prompting Salem to bring a motion under section 664.6 to enforce the settlement. The trial court entered an order granting the 664.6 motion, which restated the terms the settlement previously reached and its previous attorney fee award.
DLS appealed from the 664.6 order, challenging the trial court’s grant of Salem’s motion in limine. Salem moved to dismiss the appeal; we deferred our decision on the dismissal motion until our decision on DLS’s appeal.
II
Discussion
The Appeal Must Be Dismissed Because DLS Settled Its Case Against Salem
“‘“It is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it.” . . . A stipulation is a consent within the meaning of this rule.’” (Zinke v. Zinke Rebottoming Shoe Co. (1962) 208 Cal.App.2d 690, 694-695; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400 (Norgart) [“a ‘party may not appeal a consent judgment’”].)
As the Supreme Court recognized, however, “there is an exception to the rule that a party may not appeal a consent judgment. If consent was merely given to facilitate an appeal following adverse determination of a critical issue, the party will not lose his right to be heard on appeal.” (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.) “The justification offered for the exception is that it would be ‘“wasteful of trial court time” to require the plaintiff to undergo a probably unsuccessful court trial merely to obtain an appealable judgment.’ [Citation.]” (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1428.)
The exception applies when it “‘appear[s] from the record that the consent was given only pro forma to facilitate an appeal, and with the understanding on both sides that the party did not thereby intend to abandon his right to be heard on the appeal in opposition to the judgment or order. In other words, we will construe the stipulation according to the intention and understanding of the parties at the time, and give effect to it accordingly. . . . ’ [Citation.] [¶] . . . The rationale turns on the intent of the parties either to settle their dispute fully and finally or merely to hasten its transfer from the trial court to the appellate court. The rule covers cases in which the parties intended a full and final settlement of their dispute, and the exception covers those in which they intended merely a hastening of its trial-court to appellate-court transfer.” (Norgart, supra, 21 Cal.4th at p. 401, original italics.)
Thus, in considering whether to dismiss DLS’s appeal, we must determine whether the parties intended to fully and finally settle their dispute, or whether they acted merely to hasten transfer of the trial court’s in limine ruling from the trial court to the appellate court. We conclude the parties intended the former.
Although DLS’s settlement with Salem was unmistakably prompted by the trial court’s in limine ruling, DLS did not indicate it was stipulating to judgment merely to facilitate appellate review of that decision. To the contrary, the transcript of the parties’ agreement discloses the parties’ mutual intent to fully resolve their dispute.
Specifically, the trial court, which had participated all morning with the parties in the settlement conference, announced the agreement as follows: “We are at the threshold of a stipulation that would resolve the litigation between plaintiff and the Lutheran Church. [¶] Counsel, do you wish to submit a stipulation?” (Italics added.) To this announcement, Salem’s counsel clarified: “I guess it would be in terms of actually a settlement between the church and the plaintiff . . . .” DLS’s counsel did not correct the court’s view that the agreement would resolve the litigation between the parties, or dispute the characterization given by DLS’s counsel that the agreement represented a settlement; instead, DLS’s counsel twice referred to the agreement as a “settlement,” and acknowledged the settlement “resolves . . . the complaint.” Moreover, the parties did not request the court to enter a judgment or an order; instead, the settlement terms provided the parties would each dismiss their claims against the other.
DLS notes its attorney expressly stated the settlement was made in response to the trial court’s in limine ruling, as follows: “[T]his results from your honor’s rulings issued in limine yesterday, as a result of which it is not tenable for my clients going forward on the complaints. [¶] Just want to be sure this settlement is put in its proper perspective in light of what has happened in this courtroom today.” (Italics added.) The foregoing statement does not suggest the settlement was made to appeal the court’s ruling; instead, it simply describes the reason for DLS’s decision to drop its claims.
Any ambiguity as to the parties’ expressed intentions, however, is clarified by DLS’s attorney expressly reserving DLS’s right to appeal the amount of the anticipated attorney fee award. Specifically, Salem’s counsel described the attorney fee portion of the settlement as follows: “The plaintiff and Salem Church agree that Salem Church is to be deemed the prevailing party, and that the issue that they would be entitled to attorneys’ fee and costs, as determined by this court upon proper motion and that they would pay whatever the determination of the court is on attorneys’ fees and costs.” DLS’s counsel then corrected a part of this settlement term, in the following exchange: “[DLS’s Counsel]: [A]s far as paying any award, we would reserve our rights, of course, whatever rights we would have after the hearing of that motion. Part of the stipulation was that we would pay it. That isn’t part of the agreement. Whatever right of appeal we might have, we would certainly want to reserve. [¶] The Court: You agree? [¶] [Salem’s Counsel]: As to the amount. [¶] [DLS’s Counsel]: Yes. I agree with that.” (Italics added.) Thus, DLS’s counsel expressly limited his reservation of DLS’s right to appeal to issues regarding the amount of prevailing party attorney fees the trial court would award.
In short, the record does not reflect the parties’ intent to stipulate to a judgment merely to facilitate an immediate appeal of the trial court’s in limine ruling. Even if DLS had the subjective intent to do so, the exception allowing appeal of a stipulated judgment requires “‘the understanding on both sides that the party did not thereby intend to abandon his right to be heard on the appeal . . . .’” (Norgart, supra, 21 Cal.4th at p. 401, italics added.) The requirement that both parties share a common intent is particularly important here, where Salem agreed to dismiss its cross-complaints against DLS and Lavey. If Salem did so in the belief its litigation with DLS had ended, allowing DLS to appeal the trial court’s in limine ruling would deprive Salem of its bargained-for repose. If DLS wished to preserve its right to appeal the trial court’s in limine ruling, DLS should have clearly articulated this desire as part of the parties’ agreement. DLS did not do so. Accordingly, we dismiss DLS’s appeal.
III
Disposition
The appeal is dismissed. Salem is entitled to its costs of this appeal.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.