Justice v. Dubois

Filed 7/20/06 Justice v. Dubois CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael Orfield, Judge. Appeal dismissed.

I.

INTRODUCTION

Lillian Justice^[1]appeals from an order directing her to cooperate in the sale of a residence she co-owns with Frank Dubois. We dismiss the appeal for lack of appellate

jurisdiction because the record contains neither a final judgment nor an appealable order, and we are unable to determine whether the trial court has adjudicated all of issues in the case.

II.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

In January 2004, Justice filed a first amended nine-count complaint in this case. In her amended complaint, Justice asserted claims for breach of contract, promise without intent to perform, fraud, negligent misrepresentation, unjust enrichment, declaratory relief, specific performance, breach of the covenant of good faith and fair dealing, and injunctive relief. Justice sought various forms of relief, including compensatory and punitive damages, declaratory relief, injunctive relief, and attorney fees. Justice's claims were premised on Dubois's alleged breach of a settlement agreement (Settlement Agreement) reached in a prior case (Justice v. Dubois (Super Ct. San Diego County, 2002, No. GIN 02370)) (the prior case).

The Settlement Agreement is dated May 2, 2003. It states that in 2000, Justice and Dubois entered into an agreement to purchase and eventually sell real property located on Eighth Street in Encinitas. The Settlement Agreement gave Justice the right to purchase Dubois's interest in the property within a 120-day period, beginning May 2, 2003. The Settlement Agreement also gave Dubois the right to sell the property to a third party if Justice failed to exercise her interest to purchase Dubois's interest within the 120-day period.

Dubois filed a cross-complaint alleging claims for breach of contract, declaratory relief, specific performance, quiet title, accounting, intentional misrepresentation, negligent misrepresentation, unjust enrichment, and intentional infliction of emotional distress.^[3]

In October 2004,^[4] Dubois filed a motion in this case pursuant to Code of Civil Procedure^[5] section 664.6 to enforce the Settlement Agreement reached in the prior case. In his motion, Dubois requested that the court order Justice to cooperate with Dubois's sale of the property to a third party. In November 2004, Justice filed an opposition to the motion. In her opposition, Justice claimed that Dubois had failed to cooperate with her in her efforts to purchase Dubois's interest in the property. Justice requested that the court deny Dubois's motion and enter an order allowing her to exercise her option to purchase Dubois's portion of the property. Shortly thereafter, Dubois filed a reply to Justice's opposition in which he reiterated his request that the court order Justice to cooperate with the sale of the property to a third party.

On December 17, 2004, the court issued the following tentative order:

"The motion of Defendant Frank Dubois to Enforce Mediated Settlement Agreement came on for hearing on 12/10/04. [¶] At that time, both parties stipulated before the court to settlement of this action as follows.

"Plaintiff and Defendant both agreed that the court should consider the question of whether Plaintiff Lillian B. Justice had been prevented from performing on the Mediated Settlement Agreement entered into by the parties on 5/2/03;

"The court's consideration was to be based on the arguments and evidence before it on the Motion to Enforce Mediated Settlement Agreement;

"If the court were to find that the Plaintiff had been prevented from performing on the Mediated Settlement Agreement by the Defendant and/or Defendant's counsel, then she would be given additional time in which to purchase the subject property under the terms of the original [M]ediated [S]ettlement [A]greement;

"If the court were to find that the Plaintiff had not been prevented from performing on the Mediated Settlement Agreement by the Defendant and/or Defendant's counsel, then Plaintiff would be ordered to, and would, cooperate with the sale of the property to a third party by signing all of the necessary documents to complete the sale;

"The court hereby finds that the Plaintiff was not prevented from performing on the Mediated Settlement Agreement entered into between Plaintiff and Defendant on 5/2/03. Plaintiff is therefore ordered to cooperate with the sale of the property to a third party by signing all necessary documents to complete the sale.

"Should plaintiff fail to abide by the above order, the Defendant may follow the procedures necessary for the appointment of an elisor."

On December 17, the court held oral argument on Dubois's motion. During the hearing, the parties disputed whether Dubois had prevented Justice from buying out his interest in the property. At the conclusion of the hearing, the court stated, "[T]he tentative is the order of the court."

In January 2005, Justice filed a notice of appeal from the court's December 17 order.

III.

DISCUSSION

Justice's appeal must be dismissed for lack of a final judgment or appealable order

Dubois claims this court lacks appellate jurisdiction to consider the merits of Justice's appeal. We agree.

A. General principles of appealability

Under California law, a party may generally appeal only from a final judgment. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293 (Doran).)

"California is governed by the 'one final judgment' rule which provides 'interlocutory or interim orders are not appealable, but are only "reviewable on appeal" from the final judgment.' [Citation.] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process. [Citation.] In keeping with this rule, section 904.1 generally authorizes appeals from superior court judgments, except those which are interlocutory. (§ 904.1, subd. (a)(1).) [¶] It is the substance and effect of the adjudication, and not the form, which determine if the order is interlocutory and nonappealable, or final and appealable. [Citation.] 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.]"

Further, the law is clear that, "'[j]udgment rendered on a complaint alone, unaccompanied by judgment on a pending cross-complaint, is not a final judgment . . . .'" (Swain v. California Cas. Ins. Co. (2002) 99 Cal.App.4th 1, 6 (Swain), quoting Holt v. Booth (1991) 1 Cal.App.4th 1074, 1081.) In addition, a party may not appeal from a preliminary order entered prior to a final judgment. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 59 at pp. 114-115 [noting that in applying the one final judgment rule, "there must be a judgment" and that "there is no appeal from . . . orders preliminary to judgment"; see, e.g., Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 995 (Corkland) [concluding that "minute order granting the motion to compel enforcement of the settlement agreement" was nonappealable].) Nevertheless, where it is clear from the record that the trial court has adjudicated all of the issues in the case but simply failed to render a formal judgment, an appellate court may exercise its discretion and proceed as if a final judgment had formally been entered, rather than dismiss the appeal. (Swain, supra, 99 Cal.App.4th at p. 6; see e.g., Corkland, supra, 156 Cal.App.3d at p. 995 [affirming nonappealable minute order granting motion to compel enforcement of settlement agreement and "remand[ing] to the trial court with directions to enter a judgment pursuant to the terms of the settlement"].)

Although a party ordinarily may not appeal from an order entered prior to a final judgment, a party generally may appeal from a postjudgment order. (§ 904.1, subd. (a)(2). Absent an appealable order or judgment, an appellate court lacks jurisdiction and must dismiss an appeal. (Doran, supra, 76 Cal.App.4th at p. 1292.)

B. Appealability in the context of the trial court's ruling on a party's motion

pursuant to section 664.6

Section 664.6 provides:

"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."

"Section 664.6 provides for entry of judgment pursuant to the terms of a settlement in a pending case." (Doran, supra, 76 Cal.App.4th at p. 1292.)

Although "[a]s a general rule, a judgment entered by consent is not appealable" (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings without trial § 92 at p. 497), courts have often ruled on the merits of appeals from stipulated judgments entered pursuant to section 664.6. For example, in Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.App.3d 1168, 1170, the court reversed "a judgment entered pursuant to settlement as authorized by Code of Civil Procedure section 664.6," on the ground that the parties had failed to comply with the statutory prerequisites for entry of a stipulated judgment pursuant to section 664.6. (Accord Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1113.) Further, it is clear that an order enforcing a stipulated judgment entered pursuant to section 664.6 is an appealable postjudgment order. (Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1110, fn. 3.)

In Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200 (Viejo Bancorp), the court addressed the question whether a final judgment existed in a case in which a party filed a section 664.6 motion to enforce a settlement agreement reached in a prior case. In that case, a bank officer (Wood), the bank, and the bank's directors sued each other for damages. After the parties reached a settlement agreement, the action was dismissed with prejudice. (Viejo Bancorp, supra, 217 Cal.App.3d at pp. 203-204.) Less than a year later, the bank filed a new action against Wood for breach of contract and damages based on an alleged breach of the settlement agreement. (Id. at p. 204.) A few months after filing the new action, the bank filed a motion in the new action pursuant to section 664.6 to enforce the settlement agreement reached in the prior action. (Viejo Bancorp, supra, 217 Cal.App.3d at p. 204.)

The trial court noted that the bank's motion should have been brought in the prior action. (Viejo Bancorp, supra, 217 Cal.App.3d at p. 204.) Nevertheless, reasoning that since "'there will be no prejudice to the involved parties and because, based on the court's analysis on the merits, the result would be the same,'" the trial court treated the motion as having been filed in the prior action. (Ibid.) The trial court granted the bank's motion and entered a judgment in the new action. (Ibid.) The judgment provided that it "'shall be deemed to relate back'" to the prior action. (Ibid.)

On Wood's appeal from the judgment, the Court of Appeal considered whether the judgment the trial court entered was an appealable final judgment, even though the order did not finally conclude the new action. (Viejo Bancorp, supra, 217 Cal.App.3d at p. 205.) Notwithstanding that Wood filed an appeal from the judgment in the new case, the Viejo Bancorp court concluded that Wood's appeal was, in substance, an appeal from a final judgment in the prior case. The court reasoned:

"'Although the law relating to appealability speaks in terms of orders or judgments,' it is well established 'that it is not the label but rather the substance and effect of a court's judgment or order which determines whether or not it is appealable. [Citation.]' [Citation.] Here, it is clear the trial court intended to effect a final judgment in the old action. Since the intended substance and effect of the judgment is to finally dispose of the old action, the judgment is appealable under Code of Civil Procedure section 904.1, subdivision (a)." (Id. at p. 205.)

C. There is no final judgment or appealable order in this case

We requested that the parties submit supplemental letter briefs addressing whether there is a final judgment in this case. Dubois contends in his supplemental letter brief that there is no final judgment in this case because issues in his cross-complaint remain to be adjudicated. Justice claims that the trial court's order is an order granting Dubois's motion pursuant to section 664.6, and that the order constitutes a final judgment.

With respect to the question whether there is a final judgment in this case, we begin by noting that there is no formal judgment in the record as is provided for in section 664.6. (§ 664.6 [providing a trial court "may enter judgment pursuant to the terms of the settlement," italics added]; compare with Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454 ["On the Children's motion to enter judgment pursuant to the settlement, the trial court held that it was [enforceable], and entered judgment accordingly"], italics added.) It is also clear that Justice may not appeal a preliminary minute order entered prior to any judgment having been entered. (Corkland, supra, 156 Cal.App.3d at p. 995.)

Further, unlike in Corkland, supra, 156 Cal.App.3d at p. 995, in which the court deemed an appeal from a minute order granting a motion to compel enforcement of the settlement agreement as, in effect, an appeal from a final judgment, it is not clear from the record on appeal in this case that the trial court has adjudicated all of the issues in this case. In contrast to Corkland (id. at pp. 994-995), the order appealed from in this case was not an order concluding that the parties had stipulated to settle the case. Rather, the December 17 order suggests that the parties may have agreed to abandon all of their various claims in this case in favor of the court's resolution of the dispute between the parties concerning whether Dubois had prevented Justice from exercising her option to purchase Dubois's interest in the property.

The record does not contain a reporter's transcript of the December 10 proceedings. We are therefore unable to determine whether or not the parties agreed that the court's resolution of the factual dispute discussed in the December 17 order would in fact resolve all of the various claims raised both in Justice's complaint and Dubois's cross-complaint. The December 17 order itself contemplates that the parties will take further actions in the case.^[6]

Under these circumstances, it is not at all clear that the trial court has adjudicated all of the issues in the case, but simply failed to render a formal judgment. In the absence of a formal judgment or a clear indication that all issues in the case have been adjudicated, Justice's appeal cannot be deemed an appeal from a final judgment in this case.

The appeal similarly cannot be deemed an appeal from a final judgment entered in the prior case, as in Viejo Bancorp. (Viejo Bancorp, supra, 217 Cal.App.3d at p. 205.) Unlike in Viejo Bancorp, there is nothing in the record on appeal that suggests that the trial court in this case treated Dubois's motion pursuant to section 664.6 as having been filed in the prior action.

Finally, the December 17 order cannot be deemed an appealable postjudgment order enforcing a stipulated judgment entered in the prior case. The record on appeal does not include the record of the proceedings in the prior case. Even assuming we were to conclude that the trial court's December 17 order constitutes an order granting a motion pursuant to section 664.6, and assuming further that we were willing to conclude that such an order could theoretically be viewed as a postjudgment order to enforce a judgment entered pursuant to section 664.6 in the prior case, because the record on appeal does not include the record of the proceedings in the prior case, we are unable to determine whether a judgment was in fact entered in the prior case pursuant to section 664.6.

IV.

DISPOSITION

The appeal is dismissed and the case is remanded to the trial court. On remand, Justice may request that the trial court enter a judgment in the case. To the extent the trial court concludes that no further issues remain to be adjudicated, the court shall enter a judgment. To the extent the trial court concludes that there are issues that remain to be adjudicated, it shall adjudicate those issues as appropriate. Dubois is entitled to costs on appeal.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Real Estate Lawyers.

^[1] Justice is representing herself on appeal.

^[2] Both parties make numerous references in their briefs to purported facts and proceedings in the case without proper citation to the record, in violation of California Rules of Court, rule 14(a)(1)(C).

^[3] Justice did not include Dubois's cross-complaint in her appellant's appendix. We are therefore unable to determine the basis for Dubois's claims. However, Justice did attach the first page of Dubois's cross-complaint to her notice of appeal. The attached cross-complaint does not bear a file stamp or any other information indicating when, or if, the pleading was filed. Since Justice attached the pleading to her notice of appeal and Dubois claims the pleading was filed, we assume the pleading was filed.

^[4] The motion that is included in the record is dated October 29, 2004, but does not bear a file stamp.

^[5] Unless otherwise specified, all subsequent references are to the Code of Civil Procedure.

^[6] Justice filed a civil case information sheet in this court. In response to the question, "Does the judgment appealed from dispose of all causes of action, including all cross-actions between the parties," Justice checked a box indicating, "No." In response to another question on the form, "If no, please explain why the judgment is appealable," Justice answered, "Order improper."