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Judith G. Cohen et al v. Dean A. Borgedalen et al


May 25, 2011


(Super. Ct. No. CV33260)

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

Cohen v. Borgedalen



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Dean H. Borgedalen and Darren Borgedalen (the Borgedalens) appeal from an order granting the motion of plaintiff Judith G. Cohen and others,*fn1 for "specific performance of an interlocutory judgment." The order was entered after plaintiffs complained that the Borgedalens were interfering with their efforts to survey the width of an easement to which all parties had previously agreed in a stipulated judgment. The Borgedalens argue the trial judge who entered the order improperly changed the terms of the judgment, which was agreed to in front of a different judge.

We shall conclude the order appealed from is non-appealable, and shall therefore dismiss the appeal.


In 2006, plaintiffs filed an action seeking quiet title to a road easement across the Borgedalens' property to access their respective residences. They also sought an injunction preventing the Borgedalens from placing obstacles in the roadway.

In April 2008, on the day of trial, the parties reached a settlement before Judge Duane Martin. The parties agreed on a stipulated judgment declaring plaintiffs to be the owners of a right of access across the Borgedalens' property, the width of which "shall be the width of the existing road." It was further agreed that plaintiffs "shall be entitled to survey the centerline of the road to confirm its location and an Amended Judgment may be filed to reflect the exact location of the centerline of the road." The stipulation enjoined the Borgedalens from interfering with plaintiffs' use of the road and from erecting additional gates, barriers or speed bumps thereon. All existing gates and posts were to be removed. A decree captioned "Stipulated Judgment" incorporating these terms was signed by Judge John Martin (not the same judge who presided over the settlement) and filed on April 28, 2009 (further unspecified calendar dates are to that year).

On October 29, plaintiffs filed a "Motion . . . to Compel Specific Performance of Interlocutory Judgment." In support of the motion, they submitted several declarations averring that the Borgedalens had erected parallel fences along the road, allowing a width of only nine feet for vehicles to pass through. The declarations also described the Borgedalens' disruptive behavior, which had thwarted completion of the survey and prevented access for emergency, utility and delivery vehicles.

On November 24, after an unreported hearing, Judge John Martin issued a written ruling granting "in part" plaintiffs' motion. The order instructs plaintiffs to "hire and instruct a licensed surveyor to conduct the road survey forthwith," and prohibits the Borgedalens from interfering with the surveyor. It goes on to state that there is a "present and continuing dispute as to the roadway width," and establishes a roadway width of 18 feet "as a temporary measure pending judgment on the road survey results . . . ."*fn2 The Borgedalens filed a notice of appeal from this order.


The Borgedalens seek reversal of Judge John Martin's November 24 order, claiming that it improperly altered the terms previously agreed to in the Stipulated Judgment and could not be rendered by a judge who did not supervise the settlement.

In their statement of appealability, defendants state that the order is appealable as an "order after judgment," which is made appealable by Code of Civil Procedure section 904.1, subdivision (a)(2) (hereafter section 904.1(a)(2)).*fn3 However, as we shall explain, the Stipulated Judgment was not a final judgment because it did not fully and finally adjudicate the rights of the parties. Thus, Judge John Martin's subsequent ruling was not an order made after an appealable judgment, and no appeal can be taken from it.

"'There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control.'" (Anchor Marine Repair Co. v. Magnan (2001) 93 Cal.App.4th 525, 528.) "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.) Appellate jurisdiction cannot be created by consent, waiver, or estoppel. (Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 440-441.) "Whenever there is doubt as to whether we have jurisdiction to hear an appeal, we must raise that issue on our own initiative." (In re Perris City News (2002) 96 Cal.App.4th 1194, 1197.)

The threshold issue is whether the subject order was appealable as an order after judgment. Section 904.1(a)(2) permits an appeal "[f]rom an order made after a judgment made appealable by [subpart] (1)." (Italics added.) An order made after a judgment that is not appealable under subpart (1) would not fall within this category. We thus turn to the question of whether the Stipulated Judgment entered on April 28 was appealable.

Section 904.1, subdivision (a)(1) permits an appeal from a "judgment," but prohibits an appeal from an interlocutory judgment unless it is described in subparts (8), (9) or (10), none of which apply here. Thus, we follow the general rule that "an appeal may be taken from a final judgment, but not an interlocutory judgment. [Citations.] 'The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process.'" (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 132.)

"'In "determining whether a particular decree is essentially interlocutory and non-appealable, or whether it is final and appealable . . . [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative."'" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) "'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.'" (In re The Clergy Cases I (2010) 188 Cal.App.4th 1224, 1234, quoting Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293; see also Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.)

Despite its label, the Stipulated Judgment was not a final determination of the rights of the parties. Although it generally provided that plaintiffs would have the right to an easement across Borgedalens' property, the judgment also provided for plaintiffs to obtain a survey of the existing road and contemplated that an "Amended Judgment" would be entered after completion of the survey to incorporate a legal description of the right-of-way. The judgment thus contemplated entry of a more specific judgment describing the exact location of the centerline of the easement, signifying that the trial court did not yet intend to render a final determination of the parties' rights.

The transcript of the settlement hearing presided over by Judge Duane Martin convincingly supports our conclusion that the April 28 decree was not intended as a final judgment. The transcript shows that Judge Duane Martin expressly declined to determine the exact width of the easement, remarking that "engineers are going to . . . give us the width of the road to the centerline so everybody knows that is the easement," and explaining that the road would have to be surveyed and recorded "in metes and bounds," in order to resolve any doubt about its dimensions.*fn4

The case of Swarthout v. Gentry (1946) 73 Cal.App.2d 847 is instructive on this point. There, pursuant to a judgment by stipulation in a partnership dissolution action, the court appointed referees to partition real property, giving them the power to "'to set apart portions of the properties for pipelines, ways, roads, streets or other easements necessary or convenient for the use of the parties'" but reserving final decisionmaking authority to the court. (Id. at pp. 848-849.) The appellate court dismissed an appeal from the judgment, noting that there was clearly "judicial matter reserved for future determination." (Id. at p. 851.)

As in Swarthout, the Stipulated Judgment here was interlocutory because further steps were contemplated before an enforceable, final judgment could be entered. Moreover, far from being a modification of an existing final judgment, as the Borgedalens claim, the order compelling performance was merely an exercise by the trial court of its statutory power to compel obedience to its own orders (§ 128, subd. (a)(4)) as well as its "fundamental inherent equity, supervisory, and administrative powers . . . to control litigation before [it]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967).

Because there has been no final judgment in this case, the order from which the Borgedalens appeal was not an order made after an appealable judgment within the meaning of section 904.1, subdivisions (a)(1) and (2). And, in the absence of any other statutory authorization, the order is not appealable.


The appeal is dismissed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

We concur: RAYE, P. J. MURRAY, J.

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