In a Confusing Appellate Opinion, Denial of Post-Settlement Fees Held Not Appealable

An order enforcing a settlement agreement is an appealable order, but what about an order denying enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”Denial of Motion to Enforce a Settlement Held Appealable....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In Sanchez, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

The Order Denying Enforcement of a Settlement Agreement Was Not Appealable:

As discussed in another recent opinion in Rezzadeh v. Chiu (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.), an order granting a motion to enforce a settlement under Code of Civil Procedure section 664.6 is appealable. (Hines v. Lukes (2008) 167 Cal.App.4th 1174.) Rezzadeh dealt with an order denying a motion to enforce a settlement, and the court held there was “no functional difference” between a grant and a denial of costs because the trial court's order “functionally terminated all litigation between the parties.” And besides, “if this were not the case the trial court's order would be insulated from any form of review....”

But Sanchez went the other way on this. Sanchez held, in a published opinion, that an order denying enforcement of a settlement agreement under Code of Civil Procedure section 664.6 was not appealable.

First, the court noted that the notice of appeal cited subdivision (a)(2) of the appealability statute, Code of Civil Procedure section 904.1. Subdivision (a)(2) is for orders following a judgment. But there was no judgment here. So that ground doesn’t apply.

Second, the court declined to treat the appeal as premature. True, the plaintiff-appellant later requested dismissal, which the trial court clerk entered. But the appeal was not from the dismissal — it was from the order denying fees. This was not a premature appeal of the dismissal, and so it could not be “saved” as a premature appeal.

Even if the appeal of the denial of fees could have been treated as a premature appeal of the later dismissal, the court refused to exercise its discretion to do so. The court scolded counsel for failing to move to augment the record to include the dismissal (though the court considered the dismissal anyway). “Given the experience of Sanchez's counsel, no excuse or justification appears to exist for this failure to observe the rules governing appellate jurisdiction.”

A Split with a Other Authorities Leaves Open Whether Post-Settlement Fee and Cost Orders May Be Appealable:

Sanchez apparently assumed that denials of fee orders are not appealable **as a final judgment in and of itself under Code of Civil Procedure section 904.1(a)(1). (The appellant appears not to have advanced the argument, but as appealability is jurisdictional, the court should consider it independently.) This assumption is contrary to Gassner v. Stasa (2018) 30 Cal.App.5th 346, 351-355, which held that a cost order following voluntary dismissal without prejudice is appealable "judgment" because it is a final determination of rights of the parties in the action, and thus “it is a judgment and appealable as such under Code of Civil Procedure section 904.1, subdivision (a)(1).”

Gassner was cited favorably by C.H. Reynolds Electric, Inc. v. Powers (D6 Aug. 24, 2021) no. H046554 (nonpub. opn.) (See Tim Kowal, “Although Contempt Orders May Not Be Appealed, Fee Awards on a Contempt Order Are Appealable,” Aug. 26, 2021.) C.H. Reynolds, cited the published opinion in Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1388 (LA Times). LA Times held that, when it comes to fee orders, "[n]othing remains for future consideration, and no other opportunity exists for appellate review” and it “is therefore ‘properly viewed as a final judgment and hence appealable as such’ under section 904.1, subdivision (a)(1).” (LA Times, supra, 88 Cal.App.4th at p. 1389; see also Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.) C.H. Reynolds extended this reasoning to denials of fees, not just grants.

Sanchez did not discuss these authorities or the reasoning they advanced. Thus, despite Sanchez, it remains an open question whether fee and cost orders after a settlement may be independently appealable.

Comment re: Appealability of Voluntary Dismissals:

Sanchez assumed that the plaintiff-appellant’s voluntary dismissal with prejudice would have been appealable. Sanchez did not cite authority or give reasons for this assumption. A word to the wary: do not count on voluntary dismissals being appealable. Here are three important factors to consider when analyzing whether a voluntary dismissal is appealable:

  1. Voluntary dismissals without prejudice definitely are not appealable. (Tim Kowal, “The Trouble with Voluntary Dismissals,” Nov. 11, 2021.)
  2. A voluntary dismissal with prejudice may be appealable “if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 (Stewart). But if the voluntary dismissal with prejudice was not entered after an adverse ruling in order to expedite the appeal, this rule might not apply, and thus the dismissal may not be appealable.
  3. As a further limitation to the rule immediately above, some cases suggest that voluntary dismissals simply are not appealable, ever. (See, e.g., H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 ["A voluntary dismissal is a ministerial act, not a judicial act, and not appealable."]; Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343 [dismissing for lack of jurisdiction appeal from voluntary dismissal with prejudice after demurrer was sustained without leave to amend]; Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331 [dismissing for lack of jurisdiction appeal from voluntary dismissal of entire action after demurrer was sustained without leave to amend]; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761 ["A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal."]. See Citizens for Responsible Equitable Environmental Development v. City of San Diego (D4d1 Feb. 16, 2011) No. D057113, at *1 n.4 [holding dismissal with prejudice was not appealable.)

Sanchez offered no guidance on these points. It merely assumed voluntary dismissals with prejudice are appealable. Litigants should be prepared to argue that this is not necessarily the case, and the Court of Appeal should either make an explicit holding on this point, and if the dismissal is not appealable, then there probably ought to be some form of appellate review available.

The Denial of Fees Was Not Appealable as a Collateral Order:

Finally, Sanchez rejected the plaintiff-appellant’s argument that the order denying attorney fees should be treated as a collateral order and thus appealable on that basis. The court accepted the majority view that only orders that are (1) final, (2) collateral, and (3) direct the payment of money, may be treated as appealable collateral orders. (For a discussion of the minority view, see Tim Kowal, “The Trouble with Voluntary Dismissals,” Nov. 11, 2021.)

The Upshot: When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at 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 or (714) 641-1232.

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