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City of Gardena v. Rikuo Corporation

February 7, 2011

CITY OF GARDENA, PLAINTIFF AND RESPONDENT,
v.
RIKUO CORPORATION, DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of the County of Los Angeles, William F. Fahey, Judge. (Los Angeles County Super. Ct. No. BC317913)

The opinion of the court was delivered by: Mosk, J.

CERTIFIED FOR PUBLICATION

Dismissed.

ORDER

This appeal arises from an eminent domain action filed by plaintiff and respondent City of Gardena (the City) against defendant and appellant Rikuo Corporation (defendant). In 2004, following a mediation, the parties, in a written settlement agreement, settled the eminent domain action and a related inverse condemnation action. In 2006, pursuant to a stipulation by the parties, the trial court entered a "Judgment and Final Order of Condemnation" for both cases, retaining jurisdiction to determine the costs of ongoing remediation.*fn1

Defendant appeals from two orders, entered after the judgment, awarding and releasing to the City certain funds from the court-controlled deposit that was made under the judgment to cover the costs of remediation of the subject property. According to defendant's statement of appealability, the two orders are appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2)*fn2 as orders entered after judgment. The City did not contest defendant's statement of appealability in its respondent's brief, but following a letter from this Court asking for supplemental briefs on the appealability issue,*fn3 the City contends that the two orders from which defendant appeals are not appealable orders. In its supplemental brief, defendant argues that the orders are appealable, but does not assert that its appeal should be treated as a petition for extraordinary relief.*fn4 We conclude that the orders are not appealable.

"'A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.' (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [107 Cal.Rptr.2d 149, 23 P.3d 43] [(Griset)]; see also Code Civ. Proc., § 904.1.) 'A trial court's order is appealable when it is made so by statute.' (Griset, supra, at p. 696.) 'The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 58, p. 113.)" (Conlan v. Shewry, supra, 131 Cal.App.4th at p. 1365.)

Section 904.1, subdivision (a) provides, "An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: . . . (2) [f]rom an order made after a judgment made appealable by [subdivision (a)] (1)." (Italics added.) Subdivision (a)(1) provides that an appeal may be taken "[f]rom a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222." Thus, for the two orders to be appealable under section 904.1, subdivision (a)(2) as defendant contends, they must have been issued following the entry of a judgment that itself is appealable under subdivision (a)(1).

The judgment in this case was entered pursuant to the settlement agreement of the parties and a stipulation for judgment based on that agreement. A stipulated or consent judgment is "a judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally [citation]." (Norgart v. UpJohn Co. (1999) 21 Cal.4th 383, 400.) "As a general proposition, a party may not appeal a consent judgment." (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438.) There is, however, an exception to the general rule. "'Although a consent . . . judgment is not normally appealable, an exception is recognized when "consent is merely given to facilitate an appeal following adverse determination of a critical issue."' [Citation.]" (Norgart v. UpJohn Co., supra, 21 Cal.4th at p. 400.)

The judgment in this case recites that it "resolves all claims and issues related to the taking of the Subject Property, including all claims and issues in the Inverse [Condemnation] Action as well as all claims and issues in this eminent domain action."*fn5 Thus, by consenting to the judgment, the parties manifested their intent to settle their dispute fully and finally. This is not a case in which the parties stipulated to a judgment merely to facilitate an appeal following the adverse determination of a critical issue. The purpose of the stipulated judgment here was to resolve "all claims and issues" arising from the eminent domain and inverse condemnation actions, including claims and issues relating to the cost of the ongoing remediation on the subject property. As to such claims and issues involving remediation, the parties stipulated, in effect, to a dispute resolution mechanism by which the trial court would make factual determinations that would resolve those issues. Therefore, the parties in this case consented to a final judgment that is not appealable as a matter of law. (See Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666 ["Simply because the order is a final judgment does not necessarily entitle a party to appellate review. Thus, for example, a party cannot appeal from a judgment to which the party has stipulated as part of a settlement"].)

Because the consent judgment is non-appealable, it is not "a judgment made appealable" by section 904.1, subdivision (a)(1). Thus, section 904.1, subdivision (a)(2), which requires such an appealable judgment, has no application to the orders entered in this case, and defendant provides no other statutory basis for its asserted right of appeal. "'[N]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . . .' (Lavine v. Jessup (1957) 48 Cal.2d 611, 613 [311 P.2d 8].) Section 904.1 states that an appeal may be taken from a judgment, except from among other things, an interlocutory judgment. Therefore, final judgments, 'as "developed by the case law"' (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 154 [8 Cal.Rptr. 107]), are appealable, but '[i]t is the substance and effect of the court's order or judgment and not the label' which determines whether the party can appeal (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [4 Cal.Rptr.2d 689])." (Pazderka v. Caballeros Dimas Alang, Inc., supra, 62 Cal.App.4th at p. 666, italics added.) "Unless expressly authorized by law an appeal does not lie from an interlocutory judgment." (Degnan v. Morrow (1969) 2 Cal.App.3d 358, 362 (Degnan).) As we discuss, this is not an interlocutory judgment from which there is a statutory right of appeal.

Defendant contends in its supplemental brief that in eminent domain cases, the law allows parties to apply for a final order of condemnation after the full amount of the judgment has been deposited in the trial court or paid to the landowner. (§§ 1268.030 and 1268.010, subd. (b)(2).) The implication of this argument is that orders relating to such a deposit, made after a final judgment is entered, are special orders after judgment that are appealable. There are condemnation cases in which the public agency seeking to condemn the property deposited money in the trial court as security for the payment of just compensation and which held that postjudgment orders concerning any remaining balance on deposit and interest thereon were appealable. (See, e.g., Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620; Redevelopment Agency v. Goodman (1975) 53 Cal.App.3d 424.) But in those cases, a contested final judgment on the merits had been entered and satisfied. Accordingly, the subsequent orders concerning the disposition of any remaining balance on deposit and interest thereon were considered appealable orders after a final, appealable judgment. By contrast, the orders from which defendant appeals were entered after entry of a non-appealable consent judgment.

Defendant also argues in its supplemental brief that the parties did not intend to settle their dispute fully and finally because they agreed to reserve the jurisdiction of the trial court to determine the issue of the cost of remediation. Therefore, according to defendant, the parties did not waive the right to appeal from the trial court's factual determinations of remediation cost disputes because they reserved not only the jurisdiction of the trial court to resolve fact-based issues concerning the cost of the remediation, but also the jurisdiction of this court to review the trial court's determinations of such issues and the right to petition for Supreme Court review of this court's determination.*fn6

Defendant's argument suggests that, despite the language in and label of the judgment in this action, the judgment was not a final one because it did not resolve all of the claims between the parties. But for the recital of the finality of the judgment, perhaps the judgment could be interpreted as being interlocutory. But if that is so, the judgment and the subsequent orders from which defendant appeals would be non-appealable because even after entry of those orders, there were issues remaining between the parties concerning further costs of remediation and the entitlement to the remainder of the ...


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