Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC295482. Conrad Aragon, Judge.
Roger A. S. Manlin for Defendant and Appellant.
Law Offices of James F. Lindsay, James F. Lindsay for Plaintiff and Respondent.
BOREN, P.J.
Naco asks this Court to dismiss the appeal, offering various grounds for dismissal and for imposing sanctions.
First, Naco asserts that Kermani waived the right to judicial review by signing a settlement agreement. The portion of the settlement agreement relating to the right to review reads: “The parties will inform the Court of this settlement, request the Court to vacate the trial date, and request the Court to retain jurisdiction to enforce this SETTLEMENT AGREEMENT. Any dispute which arises in connection with the interpretation or enforcement of this SETTLEMENT AGREEMENT shall be submitted to MEDIATOR for resolution who shall be empowered to act as an arbitrator and to render a decision with respect to such dispute which shall be binding and final on the parties. The arbitrator’s decision may be enforced by submission to the Los Angeles County Superior Court which shall issue an order enforcing the decision of MEDIATOR acting as an arbitrator. The parties waive any and all rights to jury trial, appeal or otherwise to challenge the decision of the MEDIATOR acting as an arbitrator. If MEDIATOR is unwilling or unable to resolve such dispute, then it may be submitted to the Superior Court for determination in the same manner as provided herein for submission to MEDIATOR.” (Italics added.) The trial court questioned the parties in open court to ensure that they fully understood the terms of the settlement agreement.
The right to appeal is statutory and may be waived by agreement. (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1088 (Reisman).) “The waiver of such a right of access to judicial review should be clear and express.” (Ibid.) In Reisman, the parties’ arbitration agreement read, “once the arbitrators have rendered an award, no appeal or further proceeding will be possible.” (Id. at p. 1082.) This language was deemed to be ambiguous: “Here it seems uncertain whether parties . . . would understand that they were waiving ‘appeal’ which included review of judicial action regarding an award as distinguished from the actions of the arbitrators. Without greater specificity in the waiver agreement language, we hold it was not effective to waive rights to appeal trial court judicial action . . . .” (Id. at pp. 1088-1089.)
Similarly, there was no waiver of the right to appeal in a settlement agreement specifying that “The Parties waive any right to appeal the arbitral award; to the extent a right to appeal may be lawfully waived,” and reserving the right “to seek judicial assistance” to “enforce any decision of the arbitrator.” (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952.) Because each party expressly retained the right to seek judicial assistance, including the power to enforce the arbitrator’s award, there was no waiver of the right to appeal from a judgment entered on the award. (Id. at pp. 954-955.)
The reasoning in the Reisman and Guseinov cases applies here. Naco and Kermani agreed to have the trial court retain jurisdiction over the settlement agreement. They also agreed to have the trial court retain jurisdiction to enforce the arbitrator’s decision. Indeed, they agreed to have the court resolve disputes if the arbitrator was unwilling or unable to do so. The parties agreed to waive their right “to jury trial, appeal or otherwise to challenge the decision of the mediator acting as arbitrator.” This language only supports a reading that the parties waived the right to a trial de novo and to any review of the merits of the arbitrator’s decision. It does not support a conclusion that they waived the right to judicial review of the trial court’s actions, based on the court’s retained jurisdiction over the case.
The case that Naco relies upon, Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105, illuminates an entirely different type of waiver agreement. In Pratt, the parties’ stipulation to binding arbitration provided that “the right to appeal from the arbitrator’s award or any judgment thereby entered or any order made is expressly waived.” (Id. at p. 1107, italics added.) The court found that “This constituted an express waiver of the right to secure appellate review.” (Id. at p. 1108.) Notably, the Pratt court acknowledged that a specific waiver of the right to appeal “any judgment” or “any order” “is materially distinct from Reisman.” (80 Cal.App.4th at p. 1111.) Along the same lines, in McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, the parties expressly agreed to give the trial court absolute discretion to determine the amount payable to class action claimants, which “shall not be appealable by any of the parties to this Settlement Agreement.” (Id. at p. 486.) This demonstrated an intent to disallow judicial review of the lower court’s decision.
There was no unambiguous waiver of the right to judicial review in the case at bench. The settlement agreement in this case cannot be construed to waive an appeal from a judgment entered on the arbitration award.
Second, Naco argues that Kermani waived the right to appeal by accepting the benefits of the judgment. It is inconsistent to accept the fruits of a judgment and to attack it on appeal at the same time. (Lee v. Brown (1976) 18 Cal.3d 110, 114.) Here, Kermani did not benefit from the judgment, which was in favor of Naco. Absent the enjoyment of a benefit that was expressly provided for in the judgment (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 558), Kermani did not forgo his right to appeal.
Naco next contends that the trial court lacked jurisdiction because Kermani’s petition to vacate was untimely. A petition to vacate must be filed within 100 days of service of the award. (Code Civ. Proc., § 1288.) The first petition to vacate was filed 97 days after the award was rendered. The second petition to vacate was filed 98 days after the supplemental award was rendered. Both petitions were timely. Further, the trial court did not lose jurisdiction by dismissing the lawsuit without prejudice, because the settlement agreement expressly retained jurisdiction in the trial court to enforce the agreement and to enforce the arbitrator’s decision.
Naco asserts that the appeal should be dismissed because the contentions raised in Kermani’s petition to vacate are meritless. We shall review the correctness of the trial court’s denial of the petition to vacate in a separate opinion addressing the merits of the appeal. Finally, the appeal is not subject to dismissal due to Kermani’s alleged racial animus or desire to delay paying the judgment, or because the amount of attorney fees and costs awarded by the trial court are relatively small. None of these issues are sufficient to provoke the sanction of summary dismissal.
DISPOSITION
Naco’s motion to dismiss the appeal is denied. The parties’ requests for sanctions are denied.
We concur: DOI TODD, J., ASHMANN-GERST, J.