Papadakis v. Zelis

• Decision Date: 21 May 1991
• Docket Number: No. A049637,A049637
• Citation: 230 Cal.App.3d 1385,282 Cal.Rptr. 18
• Court: California Court of Appeals Court of Appeals
• Parties: Christina Jurs PAPADAKIS, et al., Plaintiffs and Respondents, v. Bruce P. ZELIS, Defendant and Appellant.

Page 18

282 Cal.Rptr. 18

230 Cal.App.3d 1385

Christina Jurs PAPADAKIS, et al., Plaintiffs and Respondents, v. Bruce P. ZELIS, Defendant and Appellant.

No. A049637.

Court of Appeal, First District, Division 2, California.

May 21, 1991.

[230 Cal.App.3d 1386] Michael F. Ram, San Francisco, for plaintiffs and respondents Papadakis, et al.

Bruce P. Zelis, Walnut Creek, for defendant and appellant Zelis.

KLINE, Presiding Justice.

Appellant Bruce P. Zelis, an attorney litigant appearing pro se, abused the appellate process by prosecuting a frivolous appeal for the purpose of delay. After we dismissed the appeal and indicated we were considering the imposition of sanctions, appellant filed a federal bankruptcy petition and informed us that, as a result, he was invulnerable to monetary sanctions. We will hold that an attorney cannot prevent the imposition of sanctions by filing a federal bankruptcy petition.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts may be briefly summarized. Zelis was respondents' former attorney; in 1974, he persuaded them to invest in a pistachio-growing limited partnership of which he was the general partner.

Disputes between the parties resulted in litigation in 1979; that litigation settled, immediately prior to trial, in 1986. Under the terms of the settlement, Zelis agreed to pay respondents $120,000, to resign as general partner, and to cooperate in the election of a new general partner. As part of the settlement, the parties released all their claims relating to the subject matter, and Zelis stipulated to a judgment against himself of $120,000, entry of which was to be stayed as long as Zelis abided by the settlement agreement. In the event he did not, it was stipulated respondents could secure entry of judgment against Zelis by filing a declaration asserting Zelis's noncompliance. The parties essentially stipulated, in other words, that respondents could unilaterally cause the entry of judgment.

Zelis did not agree to the election of a new general partner and did not pay respondents the $120,000. Respondents filed in the trial court a declaration to this effect, together with motions to enforce the settlement and enter judgment.

While those motions were pending, Zelis procured an order from another department of the trial court which dismissed the action for failure to prosecute. Respondents appealed; in 1989, this court reversed, remanding "for further proceedings on the motion to compel enforcement of the judgment."

Respondents then again brought a motion for entry of judgment against Zelis in the trial court, pursuant to the stipulation and settlement and this court's direction. The trial court entered judgment against Zelis pursuant to the parties' prior stipulation. Zelis appeals from this judgment--to the terms of which he had previously stipulated.

II. DISCUSSION

A. Frivolous Nature of the Appeal

Sanctions are clearly appropriate for Zelis's filing of a frivolous appeal: Zelis cannot appeal from a judgment to which he previously stipulated as part of a settlement between the parties. This frivolous appeal was clearly brought for the improper purpose of delaying the day when Zelis would have to finally pay over the $120,000 he promised to pay in 1986.

It is settled that a party cannot appeal from a judgment to which he has stipulated, as part of a settlement. (Reed v. Murphy (1925) 196 Cal. 395, 401, 238 P. 78 ["Concluding, as we must, that the appellants consented to the decree in the precise form in which it was rendered, that they thereby waived any errors therein, and that it is not void on its face, there remains nothing to be reviewed upon an appeal therefrom, and the appeal is dismissed"]; accord Delagrange v. Sacramento Sav. & Loan Assn. (1976) 65 Cal.App.3d 828, 831, 135 Cal.Rptr. 614 [appeal dismissed where appellant had stipulated to the court's judgment of dismissal. "Having consented to the judgment of dismissal, he may not appeal therefrom. [Citations.]"].)

Such frivolous appellate conduct justifies the imposition of sanctions, for the reasons stated by In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179: "An appeal taken for an improper motive [such as mere desire for delay] represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts." (Ibid.; see also McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 491, 222 Cal.Rptr. 228 ["This appeal ... [is] deserving of appropriate sanctions[,]" where the appellant "at this late date is using this appeal to attempt to renege on the express terms of a settlement agreement it freely entered into"].)

Zelis's feeble attempts to manufacture appealable issues failed completely. His argument that the trial court's entry of judgment violated the one final judgment rule is frivolous for many reasons, among them the fact that the judgment is certainly a final order as to Zelis, even if there were some other issue pending as to another party. A judgment final as to a party is a valid final judgment. (Rocca v. Steinmetz (1922) 189 Cal. 426, 428, 208 P. 964.) Moreover, even if Zelis were correct and the entry of judgment were not a final order, the remedy would still be to dismiss this appeal from the supposedly interlocutory order, as respondents requested.

Zelis also claimed the trial court did not conduct an evidentiary hearing, and instead entered judgment based upon respondents' declaration, as the stipulation for entry of judgment expressly contemplated. Having stipulated that a declaration showing Zelis's noncompliance would be sufficient, his contention that he was entitled to an evidentiary hearing was frivolous; further, he did not state what relevant evidence, if any, could be produced at such a hearing. He also complained that entry of judgment in this action was improper because there are other lawsuits still pending between the parties; this contention is a non sequitur since the existence of other pending actions does not affect the finality of this one, or alter the fact that Zelis stipulated to entry of judgment in this action. We cannot countenance such a shameless effort to unjustifiably prolong litigation.

B. The Bankruptcy Petition

We sent Zelis an Order to Show Cause, stating (as required by In re Marriage of Flaherty, supra ) we were considering the imposition of sanctions, and would allow him to file additional pleadings and present argument directed to that...