Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. PC034525, Barbara M. Scheper, Judge.
Andrew Jay Kulick for Defendant and Appellant.
Mehta & Mann, Michele Mann, Jill McDonell and Steven G. Mehta for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
This appeal attempts to challenge the trial court’s ruling interpreting a provision of the parties’ settlement agreement. We do not reach the merits because we conclude there is no appealable order. We therefore shall dismiss the purported appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2004, Christine Howard (plaintiff) sued her former boyfriend Gary Nevieux (defendant). Among other things, the parties disputed their respective ownership interests in a condominium they had jointly purchased.
The property is located at 18209 Sierra Highway, Unit 92, in Canyon Country, California.
In August 2006, the trial court granted plaintiff’s motion for summary adjudication, finding that each owned 50 percent of the condominium. The court directed the property to be sold.
On September 13, 2006, the parties, represented by counsel, signed a “Stipulation re Settlement.” Insofar as is relevant to this proceeding, defendant agreed to “buy out” plaintiff’s interest by refinancing the property and paying her “for the full value of her 50% share.” Another provision of the agreement required the parties to “execute mutual releases(s) of all claims which shall include a civil code section 1542 waiver.” The parties agreed that the settlement “may be enforced pursuant to California Code of Civil Procedure 664.6 in the Superior Court of Los Angles County.”
The next day (Sept. 14), the parties and counsel appeared in court, the date set for a bench trial. Counsel presented the settlement to the court and asked to place its terms on the record. The court questioned both parties and found it to be an enforceable settlement agreement. The court set an order to show cause re dismissal of the lawsuit for November 14.
Several days later, a dispute arose between the parties about their respective responsibilities for payment of a broker’s commission and delinquent Homeowner Association fees.
In November 2006, plaintiff moved for “enforcement, clarification and interpretation of global settlement.” She urged defendant was responsible for the payment of the contested charges. Defendant’s opposition offered a contrary interpretation.
On December 13, 2006, the trial court conducted a hearing on plaintiff’s motion to enforce the settlement agreement. The trial court interpreted the agreement to require defendant to bear exclusive responsibility for payment of the broker’s commission and delinquent homeowner fees. At the close of the hearing, defense counsel stated that defendant had told him that because he had not prevailed at the hearing, he did not intend to sign the release required by the settlement agreement. Plaintiff’s counsel replied: “Your Honor, I will deal with that in another motion, if I have to.” The court concluded the hearing by noting that “[t]here is an OSC re dismissal for today, so it sounds like that will not necessarily be happening forthwith.” The court set the next hearing for January 17, 2007, stating “[h]opefully, if the matter can be worked out with respect to the release and any other outstanding issues, the dismissal can be filed. If not, you can let me know that on the new OSC date. I would expect then we will have another hearing.”
The trial court’s minute order for December 13 explained: “This matter was settled pursuant to a written settlement agreement and confirmed by the parties in open court on the record on September 14, 2006. The parties are now before the court because a dispute has arisen regarding the payment of the broker’s commission in connection with the sale of the property at issue and the payment of overdue homeowner’s association fees. Plaintiff argues that the commission and the homeowner’s association fees should be paid by defendant pursuant to the terms of the settlement; defendant denies that he agreed to pay those charges. The court finds in favor of plaintiff and will order escrow to make the required payments out of the sales proceeds of defendant currently held in escrow and order the remainder of plaintiff’s proceeds to be released to her.
Defense counsel explained: “My client said to me this morning if he loses this case [e.g., plaintiff’s motion to enforce the settlement agreement], he is not signing any more releases because that is what his interpretation of the settlement agreement was [e.g., he did not have to pay the broker’s commission or delinquent homeowner fees].” At another point, defense counsel stated: “He [defendant] doesn’t have to sign the release. The court entered the settlement as the terms and conditions of the agreement. What does he have to sign the release for? [¶] . . . He did comply with all the terms and conditions of the agreement and now he is winding up saying ‘Why did I agree to terms that is going to cost him another $8,000? That is his problem, and he will say somebody wants my signature, why should I sign it? That is what he told me. You can talk to him. He is sitting right here.”
On December 19, 2006, the trial court filed an “Order re Motion to Enforce,” granting plaintiff’s motion. The order provided, in relevant part: “The escrow company is ordered to pay the broker, Realty Executives the amount of $8,850 and the homeowner’s association the amount of $557.59. All said payments are to come only from the funds withheld from the defendant, Gary Nevieux. [¶] . . . The escrow company is ordered to refund all withheld sums to plaintiff, Christine Howard [and defendant] is ordered to pay plaintiff $1,500.00 in attorneys fees.” The order also continued the hearing on the order to show cause re dismissal to January 17, 2007.
On February 14, 2007, defendant filed a notice of appeal from “Judgment after court trial,” entered on “December 13, 2006.”
DISCUSSION
Defendant contends that the trial court committed reversible error in interpreting the settlement agreement to require him to pay the broker’s commission and delinquent homeowner’s dues. Although plaintiff answers that contention on the merits, she first points out that this proceeding lacks an appealable order and, on that basis, asks us to dismiss the purported appeal and award her costs and attorney fees. Defendant’s reply brief includes an unsatisfactory response as to whether there is an appealable order. For the reasons we now explain, we shall dismiss the purported appeal.
Defendant’s opening brief failed to comply with the requirement that he “[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable.” (Cal. Rules of Court, rule 8.204(a)(2)(B).)
The right to appeal is completely statutory. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109-110.) In a civil case, this right is governed by Code of Civil Procedure section 904.1, which provides that “(a) [an] appeal . . . may be taken . . . (1) From a judgment, except (A) an interlocutory judgment, other than as provided [below].”
All undesignated statutory references are to the Code of Civil Procedure.
A judgment entered after the trial court grants a section 664.6 motion is appealable. (See, e.g., Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205.) However, in this case, the trial court did not enter a judgment. It only filed an order granting the motion to enforce and resolving the issues contested at that point. Appellant has cited no authority (and we have found none) providing that an order granting a section 664.6 motion is appealable before a judgment has been entered. It is not one of the orders or interlocutory judgments listed in paragraphs (2) through (13) of subdivision (a) of section 904.1 as one from which an appeal can be maintained. Because no appealable order or final judgment has been entered in this case, we have has no jurisdiction to entertain the purported appeal. “In civil matters, our appellate jurisdiction is limited to the judgments and orders described in Code of Civil Procedure section 904.1. Only final judgments are appealable under that statute, which effectively codifies the ‘one final judgment rule’ . . . .” (Day v. Papadakis (1991) 231 Cal.App.3d 503, 507.)
Even were we to take the broader view that we should look at “the substance and effect of the adjudication, and not the form, [to] determine if the order is interlocutory and nonappealable, or final and appealable” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293), we would still conclude the order is not appealable. “If no issues in the action remain for further consideration, the decree is final and appealable. But if further judicial action is required for a final determination of the rights of the parties, the decree is interlocutory. [Citation.] The decree will not be appealable ‘unless it comes within the statutory classes of appealable interlocutory judgments.’ [Citations.]” (Ibid.)
For two reasons, the trial court’s December 19 order granting plaintiff’s motion did not dispose of the case and thus did not constitute a final determination of the parties’ rights. The first reason is that the order to show cause re dismissal of the underlying lawsuit was still pending. Because the case had not still been completely resolved, plaintiff (understandably) had not yet dismissed her action. The second reason is that at the December 13 hearing, defense counsel stated that defendant did not intend to perform the provision of the settlement agreement requiring him to execute a release and plaintiff’s counsel indicated he would be filing a motion to compel enforcement of that provision. It is thus apparent that the December 19 order did not finally dispose of the case and hence was not appealable.
Defendant’s contrary arguments are not persuasive. He first argues: “Why hasn’t the dismissal been filed? The simple fact is that [plaintiff’s] counsel has, and continues to ‘maneuver multiple numerous legal obstacles’ preventing the [defendant] from closure, in as much as she still has not filed a dismissal of this action.” Nothing in the record supports this argument and, in fact, the record strongly suggests to the contrary. Given defendant’s refusal at the December 13, 2006 hearing to complete performance of the settlement agreement by executing a release—a condition precedent to dismissal of the action—it was defendant, not plaintiff, who was responsible for the fact that the action was not dismissed at that point. Similarly, the record does not support defendant’s argument that he “cannot be deterred from this appeal merely because [plaintiff’s] counsel does not follow through the trial court’s order in filing a dismissal” because the record does not establish either that the trial court has made such an order or that plaintiff’s counsel has declined to comply.
On our own motion, we have augmented the record on appeal to include the superior court file. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We take judicial notice of its contents. (Evid. Code, §§ 452, subd. (d)(1) and 459, subd. (a).)
At oral argument presented in this court, defendant’s counsel claimed that at some point after the December 2006 hearing, his client did execute the release. That fact, if it is indeed a fact, is not reflected in the superior court file. (See fn. 6, ante.) In any event, once proceedings resume in the trial court, defendant can tender the release (if properly executed) to the trial court and request dismissal of plaintiff’s lawsuit and entry of judgment based upon the settlement agreement. An appeal can thereafter be properly prosecuted.
Lastly, defendant argues that he “should be entitled to proceed with this appeal . . . on the grounds that [the] trial court’s failure to enter into the record the settlement as a judgment was merely an oversight by the parties in failing to ensure that this [was] done.” The two cases defendant cites are readily distinguishable, and, to a large extent, are now contrary to the prevailing weight of authority. In any event, we decline defendant’s request that we exercise our discretion to construe the trial court’s December 19 order as incorporating a judgment because, as explained above, that order clearly did not dispose of the case.
Munoz v. Davis (1983) 141 Cal.App.3d 420, 431 [trial court sustained demurrer without leave to amend but did not enter an order of dismissal; the court of appeal deemed the order sustaining the demurrer to incorporate a judgment of dismissal and treated the notice of appeal as applying to that dismissal] and Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445 [trial court issued an order granting summary judgment but failed to enter judgment in favor of defendants; court of appeal construed the order to incorporate a judgment and interpreted the appeal to be taken from that judgment].
One leading practice guide explains: “Exercise of this ‘saving’ power is entirely discretionary with the court of appeal. Where there is no existing appealable judgment or order, there is no guarantee such power will be invoked and, indeed, appellate courts are indicating a growing reluctance to grant errant attorneys much leniency.” The text discusses many opinions from the courts of appeal disapproving of the discretionary practice of “saving” appeals taken from nonappealable orders. (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:263, pp. 2-131 to 2-132 (rev. #1, 2006).)
Because we dismiss the appeal, plaintiff (as the respondent) is the prevailing party. (Cal. Rules of Court, rule 8.276(a)(2).) She is therefore entitled to costs on appeal (including attorney fees if applicable),, all of which are to be determined by the trial court. (Cal. Rules of Court, rule 8.276(a)(1).)
Paragraph 1h of the settlement agreement provides: “The parties will be entitled to recover all attorneys fees and costs for having to enforce this settlement.” It is for the trial court to determine if that paragraph applies to the attorney fees respondent incurred on this appeal.
Plaintiff’s request for sanctions for prosecuting a frivolous appeal (§ 907) is denied.
DISPOSITION
The purported appeal is hereby dismissed. Plaintiff and respondent Christine Howard is to recover her costs on appeal, including attorney fees if applicable, as to be determined by the trial court.
We concur: EPSTEIN, P. J., MANELLA, J.
“The settlement agreement, paragraph 1c(i), defines how much plaintiff will receive for the sale of the property. The agreement states that plaintiff’s share will be calculated as follows: ‘one-half of the appraised value minus 50% of the outstanding first mortgage debt.’ Plaintiff’s share of the mortgage is agreed to be no greater than $25,000 and the appraised value is agreed to be no less than $286,000 for purposes of the foregoing calculation. No other deductions are referred to in this paragraph and the agreement is silent with respect to the broker’s commission and the overdue homeowner’s association fees. Based on the plain language of the agreement, the court finds no ambiguity. The only deduction from plaintiff’s share of the proceeds that was agreed to by the parties is for her share of the mortgage not to exceed $25,000. Thus, defendant is responsible for all the other costs associated with the sale of the property, including the broker’s commission and the homeowner’s association fees. Defendant’s argument that the commissions are encompassed in the reference in paragraph 1d to an entirely separate payment of $31,500 for ‘loans made to [defendant] by [plaintiff] and for costs incurred by [plaintiff] relating to the . . . property’ is without merit.
“Even if the court found that the agreement was ambiguous such that parol evidence would be admissible to aid in its interpretation, the court would find in favor of plaintiff. It was clear to the court from the hearing on September 14, 2006 that defendant understood that he would be required to pay the broker’s commission for the sale of the property. Defendant was present in the courtroom during the discussion of this issue and agreed to the settlement on the record knowing that he would be required to pay the broker’s commission.”
On February 26, 2007, the court issued a minute order reading: “Counsel advises the court that the defendant has filed an Appeal in this matter. [¶] The Court stays the matter pending the determination of the appeal.” Since then, the trial court has twice continued the status conference re appeal and the order to show cause re dismissal. Presently, both are set for February 27, 2008.