Opinion
H046102
07-14-2020
CAS MANAGEMENT, LLC, Plaintiff and Respondent, v. TREETOP FLYERS COLLECTIVE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17CV001034)
Defendant and appellant TreeTop Flyers Collective (TreeTop), a California nonprofit mutual benefit corporation, entered into a written settlement agreement in a breach of contract action filed against it by plaintiff and respondent CAS Management, LLC (CAS). TreeTop appeals from a stipulated judgment entered by the trial court pursuant to the terms of the settlement agreement after TreeTop failed to make any payment to CAS.
For the reasons explained below, we dismiss the appeal.
I. FACTS AND PROCEDURAL BACKGROUND
CAS filed a breach of contract lawsuit against TreeTop. Five days prior to the scheduled trial date, CAS filed a notice of settlement.
The settlement between TreeTop and CAS was embodied in a written settlement agreement, signed personally by the litigants, pursuant to which TreeTop agreed to pay CAS $869,000 if TreeTop complied with the payment schedule set out in the agreement, and $1,369,000 if it did not. In the settlement agreement, the parties stipulated that the trial court would retain jurisdiction over the settlement agreement pursuant to Code of Civil Procedure section 664.6 "to enforce the settlement until performance in full of the terms of this settlement and the Agreement is fully completed."
Code of Civil Procedure section 664.6 states, "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."
The settlement agreement further provided that, in the event that TreeTop failed to timely make the installment payments on the $869,000 as set forth in the agreement, CAS could file for entry of a stipulated judgment of $1,369,000 against TreeTop. The settlement agreement included a document titled "Stipulation for Entry of Judgment Against Treetop Flyers Collective" (stipulation) as an exhibit and required TreeTop to provide CAS's counsel with a signed copy of the stipulation. TreeTop's attorney and the president of TreeTop (who was described as a "duly authorized member" of the corporation) each separately signed the stipulation.
Approximately one month after CAS notified the trial court about the conditional settlement, CAS filed an ex parte application for an order entering judgment against TreeTop pursuant to Code of Civil Procedure section 664.6 (ex parte application). CAS asserted that TreeTop had failed to make the first payment set out in the agreement. CAS requested that the trial court enter judgment against TreeTop in the amount of $1,369,000.
Prior to the hearing on CAS's ex parte application, TreeTop filed an opposition to CAS's request that the trial court enter the stipulated judgment. Counsel for both parties appeared at the hearing on CAS's ex parte application. After hearing argument from both counsel, the trial court informed the parties that it would not alter the terms of the settlement agreement (as TreeTop had requested) but it would give TreeTop several days to make the first payment specified in the agreement. The trial court indicated that, if TreeTop did not make the required payment by the next hearing date, it would enter the judgment.
At the next hearing date, CAS informed the trial court that TreeTop had not made any payment. TreeTop confirmed that it had not done so. Consistent with its previous ruling, the trial court then granted CAS's motion for entry of judgment pursuant to the stipulation. The stipulated judgment, dated June 15, 2018, notes that TreeTop made "no payments" and states that CAS shall recover the amount of $1,369,000 inclusive of prejudgment interest "consistent with the Parties' Settlement Agreement and Mutual Release of All Claims, a copy of which is attached and incorporated into this Judgment as Exhibit 'A.' " The settlement agreement attached to the judgment includes the stipulation for entry of judgment, which contains the following provision: "It is further stipulated that this judgment shall become final for all purposes upon entry of judgment, and that both CAS and TREETOP waive any right to appeal or seek review of this judgment by a higher court as part of this Stipulation for entry of Judgment."
TreeTop appeals the June 15, 2018 judgment (judgment).
II. DISCUSSION
TreeTop's brief in this court attacks the judgment on several grounds. TreeTop contends the settlement agreement underlying the judgment is ambiguous and asserts the trial court wrongfully denied its request for an evidentiary hearing. TreeTop also argues the judgment amount of $1,369,000 constitutes an unenforceable penalty under Civil Code section 1671.
Civil Code section 1671, subdivision (b), states in part, "a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made." --------
TreeTop's brief does not address the language in the stipulation that expressly waives its right to appeal the judgment. CAS has not participated in this appeal. Because there is no respondent's brief, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).)
After the time period for briefing in the appeal concluded, this court requested supplemental briefing from TreeTop on the effect, if any, of the waiver of any right to appeal contained in the stipulation. TreeTop did not file a response. For the reasons set forth below, we conclude that this waiver is dispositive.
" 'It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions: [¶] 1. The attorney must have the authority to waive a party's right to appeal. [¶] 2. The waiver must be express and not implied. [¶] 3. The waiver must not have been improperly coerced by the trial judge.' " (PG&E "San Bruno Fire" Cases (2019) 43 Cal.App.5th 596, 607 (San Bruno Fire Cases) [quoting McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 488 (McConnell)].) "[I]f the parties to a contract want their agreement to encompass a waiver of the right to appeal from an anticipated judicial ruling, they must say so explicitly and unambiguously; they cannot leave their intent to be inferred from the language of the agreement." (Ruiz v. California State Automobile Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 605.)
In McConnell, the Court of Appeal, Second Appellate District, Division Three examined language in a settlement agreement that provided a trial court's discretionary decision related to a class action settlement "shall not be appealable." (McConnell, supra, 176 Cal.App.3d at pp. 485-486, 488.) The trial court had been involved in the negotiation of the settlement agreement, which gave it "absolute discretion to increase or decrease the amount of claims to be paid to class claimants and to determine the amount of the fund, if any, to be returned to [defendant]." (Id. at p. 488.) The parties agreed to "waive their right to appeal this exercise of discretion." (Ibid.) On appeal, the court concluded that the express waiver of the right to appeal was valid and rejected defendant's claim that the trial court had improperly coerced defendant into waiving its appellate rights. (Id. at pp. 488-489.)
More recently, in San Bruno Fire Cases, the First District Court of Appeal, Division Three, dismissed an appeal involving the settlement of several shareholder derivative lawsuits approved by the trial court based on an appellate waiver provision, concluding McConnell was "both instructive and dispositive." (San Bruno Fire Cases, supra, 43 Cal.App.5th at pp. 597-598, 606.) The court concluded that the "term 'nonappealable' used in the stipulation of settlement in this case" was "equivalent" to the waiver language in McConnell, and that therefore dismissal of the appeal was mandated. (Id. at p. 606.)
We are similarly bound by precedent. We conclude as in McConnell and San Bruno Fire Cases, that we must dismiss TreeTop's appeal of the judgment because it waived its right to appeal. The judgment expressly incorporates the stipulation signed by TreeTop that includes the waiver. The language of the waiver is unequivocal, stating that the parties agree that the stipulated judgment "shall become final for all purposes upon entry of judgment" and that they "waive any right to appeal or seek review of this judgment by a higher court." With this language, TreeTop has fully waived its right to appeal the judgment. (See San Bruno Fire Cases, supra, 43 Cal.App.5th at pp. 605-606.)
In its briefing in this court, TreeTop fails to address the waiver of its right to appeal the judgment. Moreover, its argument about ambiguity in the settlement agreement relates to the payment schedule—not to the waiver. Nevertheless, because the "threshold" determination of ambiguity is subject to de novo review (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club (2003) 109 Cal.App.4th 944, 955), we have examined the language of the waiver independently. We conclude that TreeTop unambiguously waived its right to appeal the judgment at issue.
Turning to the other conditions precluding application of a waiver of appellate rights, we deduce no evidence the waiver was coerced by the trial court. Indeed, based on the record before us, the trial court was not involved in the negotiation or execution of the parties' settlement at all.
Nor does TreeTop claim its attorney lacked the authority to waive its right to appeal. Again, the record supports the opposite. The record shows TreeTop's president and "duly authorized member" of the corporation signed the stipulation, along with TreeTop's attorney. We observe that TreeTop has filed no briefing in this court addressing the effect of the waiver language, further underscoring our conclusion that the waiver is enforceable.
In light of our conclusion that TreeTop has expressly waived its right to appeal, we do not reach the merits of TreeTop's arguments attacking the judgment against it. (See San Bruno Fire Cases, supra, 43 Cal.App.5th at p. 607.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Bamattre-Manoukian, J.