A Stipulated Judgment to Facilitate an Appeal Held Appealable

Timothy Kowal, Esq.
December 2, 2021

If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened Tos v. State of California (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments in other cases in both state courts and federal courts. So here is the right way to do it.

Tos challenged the constitutionality of California's high-speed rail bond act (as violative of restrictions on debt). Tos filed a complaint for declaratory relief, and then filed a motion for judgment on the pleadings. Tos lost. That was the end of the line in the trial court for Tos. As the issues were purely legal, there was no point paying another fare. So Tos and the state stipulated to entry of judgment.

Now, under Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 402, the general rule is that stipulated judgments (or consent judgments) are not appealable. (E.g., a stipulation could moot the appeal.) And the horror scenario to be avoided is the *Kurwa v. Kislinger* trap. Yet there are exceptions to the rule. But sometimes the exceptions are not well-articulated. (Like in this recent case.)

But Tos v. California succinctly explains the exception, and finds that the stipulated judgment is appealable:

"The parties agree they entered into the stipulated judgment because all of the Tos parties’ claims depended on a determination that Assembly Bill No. 1889 is unconstitutional. The stipulated judgment is thus appealable under the exception in Norgart to the general rule that consent judgments are not appealable except where “ ‘consent was merely given to facilitate an appeal following adverse determination of a critical issue.’ ” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400; Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 634, fn. 6 [“The stipulated judgment, made to hasten appeal rather than settle the dispute, is appealable”].)"

Key Distinction: Here is the distinction between Kurwa v. Kislinger (applying the general rule that stipulated judgments are not appealable) and Tos (applying an exception to that rule). In Kurwa, there were other claims the plaintiff wanted to preserve, and so the parties entered into a tolling agreement for those claims, and the plaintiff dismissed them without prejudice. Also, the defendant had a pending cross-complaint. In Kurwa, it was clear the parties were simply "manufacturing appellate jurisdiction," rather than waiting for a final judgment as the law requires.

In contrast, in Tos the stipulated judgment disposed of the only claim in the case. There was no cross-complaint. The judgment was with prejudice to the plaintiff's claims. This satisfied the court that the parties were not attempting to "manufacture appellate jurisdiction" as happened in Kurwa.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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