Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court, of Orange County No. 06CC03502, Gregory H. Lewis, Judge.
Law Offices of Thomas E. Elenbaas and Thomas E. Elenbaas for Defendant and Appellant.
Douglas T. Richardson for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
This is the second appeal in this matter. In the first appeal, we affirmed a judgment rescinding the underlying transaction and ordering defendant Barbara M. Fisler, Trustee of the Barbara M. Fisler Revocable Trust, to make restitution to plaintiff Omar Deen. Following the issuance of the remittitur, the trial court granted plaintiff’s motion for postjudgment interest. Defendant contends this was error because, among other things, she tendered the full amount of restitution to plaintiff the day after the judgment was entered. Although this was conditioned on plaintiff’s waiver of his right to appeal the judgment, defendant argues the condition was not unwarranted. We agree and reverse the order awarding plaintiff postjudgment interest.
FACTS AND PROCEDURAL BACKGROUND
In the underlying action, plaintiff sought specific performance of a written contract to sell commercial real estate. Defendant cross-complained for rescission and cancellation.
In April 2007, the trial court entered judgment on both the complaint and cross-complaint in defendant’s favor, ordering her to “forthwith restore to [plaintiff] all consideration received in connection with the foregoing, being the sum of... $650,000.00[], without interest. [¶]... Concurrently with the payment of restitution..., [plaintiff was] ordered to deliver up to [defendant] for cancellation the originals of the Note and Deed of Trust.”
The next day, defendant’s attorney e-mailed plaintiff’s attorney stating, “[defendant] is prepared to make immediate restitution to [plaintiff] as per the judgment so long as there is an express waiver of appeal rights. Otherwise, we will need to wait the 60[-]day appeal period.” A few weeks later, defendant’s attorney e-mailed plaintiff’s attorney again reiterating his client’s willingness to “make immediate restitution to [plaintiff] provided there is a waiver of appeal rights.”
Plaintiff never responded to either e-mail and instead filed a motion for a new trial. When that was denied, he appealed the judgment. While the appeal was pending, plaintiff recorded an abstract of judgment against the real property. Subsequently, the property was sold and the title insurer was instructed to withhold $700,000 in light of the judgment.
The judgment was affirmed on appeal in early September 2008, following which plaintiff sent defendant a letter claiming entitlement to postjudgment interest accruing from the date of the judgment. Defendant disputed the claim. On motion, the court awarded plaintiff over $85,000 in postjudgment interest.
DISCUSSION
“Civil Code section 1504 [all further statutory references are to this code] provides, ‘An offer of payment... stops the running of interest on the obligation....’ But... section 1494 qualifies the rule by requiring the offer to be ‘free from any conditions which the creditor is not bound, on his part, to perform.’” (Klinger v. Realty World Corp. (1987) 196 Cal.App.3d 1549, 1553, italics added.) Stated another way, “‘section 1494 clearly requires that the offer of performance be free from unwarranted conditions.’” (In re Marriage of Green (2006) 143 Cal.App.4th 1312, 1323, italics added.)
Defendant contends the court erred in awarding postjudgment interest because her condition that plaintiff waive her right to appeal was not unwarranted. We agree. Had plaintiff accepted the tender, he would have lost his right to appeal as a matter of law. Therefore, defendant did not improperly impose a condition plaintiff was not bound to perform.
“It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom. [Citations.]” (Schubert v. Reich (1950) 36 Cal.2d 298, 299; Lee v. Brown (1976) 18 Cal.3d 110, 114 [right to appeal judgment waived by accepting its benefits].) The theory is that the right to accept the benefits of a judgment is inconsistent with the right to appeal, so that an election to accept the benefits of the judgment is deemed a renunciation of the right to appeal. (Lee v. Brown, supra, 18 Cal.3d at p. 114; American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557.)
An exception to the rule exists where a party is concededly entitled to the benefits of a judgment he or she has accepted, and the right to those benefits would not be affected by a reversal on appeal. (Lee v. Brown, supra, 18 Cal.3d at p. 115.) Plaintiff does not contend this exception applies. Nor would it, given that plaintiff would not be entitled to restitution for rescission if he had prevailed on appeal and obtained specific performance. Thus defendant’s conditioning of payment on plaintiff’s waiver of his right to appeal was not unwarranted but rather was based on a correct understanding of the law.
In re Marriage of Green, supra, 143 Cal.App.4th 1312, relied on by plaintiff, is inapposite. As plaintiff acknowledges, the court there “held that a [trustee’s] tender of payment on condition that certain objections to the payment are withdrawn and that the [t]rustee be indemnified against potential liability was a conditional tender and therefore, postjudgment interest continued to accrue until the judgment was satisfied.” (Id. at pp. 1323-1324.) In other words, the trustee had sought to impose “conditions which the creditor is not bound, on his part, to perform.” (§ 1494.) Here, in contrast, defendant did not. Rather, plaintiff’s acceptance of the tender properly would have required him to waive the appeal.
Analogously, in Montano v. City of South Gate (1970) 13 Cal.App.3d 446, the court rejected a creditor’s argument that a tender did not toll interest where his acceptance would have waived a motion for new trial: “Granted that this is so, it does not change the effect of the tender as a means of stopping the running of interest. In Ferrea v. Tubbs[ (1899) 125 Cal. 687], the plaintiff took an appeal from a judgment he deemed insufficient. During the pendency of the appeal the defendants made a tender of principal, costs and interest to date ‘as payment in full.’ [The p]laintiff refused the tender. After the judgment had been affirmed, the trial court made an order satisfying the judgment upon the payment of the amount originally tendered. [The p]laintiff then appealed from that order. In affirming, the Supreme Court said...: ‘By the affirmance of the judgment in this court it was declared that [the] plaintiff should not have appealed the case. It was further declared that [the] defendants’ tender in effect was sufficient in amount to cover all [the] plaintiff’s just claims, and therefore should have been accepted when made. [The p]laintiff could refuse to accept the tender, and prosecute his appeal, but he thereby assumed the risk of losing the use of this money pending the appeal in case of an affirmance of the judgment.’” (Montano v. City of South Gate, supra, 13 Cal.App.3d at p. 449.)
The same rationale pertains in this case. Had plaintiff accepted defendant’s tender, he would have waived his right to appeal, even without defendant conditioning her payment on that basis. Defendant’s tender contained no improper condition and sufficed to stop postjudgment interest from accruing. Given our conclusion, it is unnecessary to address defendant’s remaining contentions.
DISPOSITION
The order is reversed. Appellant is entitled to recover her costs on appeal.
WE CONCUR, O’LEARY, J., IKOLA, J.