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Filed 2/17/16 Thomas Dee Engineering Co. v. Khtikian CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THOMAS DEE ENGINEERING 

COMPANY, INC.,

Plaintiff, Cross-Defendant, and 

Appellant,

v.

WARREN KENT KHTIKIAN

Defendant, Cross-Plaintiff, and 

Respondent.

 A146590

 (Marin County

 Super. Ct. No. CV-1404231)

 ORDER MODIFYING OPINION 

 AND DENYING REHEARING

 NO CHANGE IN JUDGMENT

THE COURT:

It is order that the opinion filed herein on January 29, 2016, be modified as 

follows:

On page 4, in the first full paragraph, remove “case management” from the last 

sentence (before parenthesis) to read:

As respondent points out, “the minute order here is a standard interlocutory . . . 

order essentially directing the parties to meet and confer” before returning to the trial 

court for issuance of a final judgment.

There is no change in the judgment.

The petition for rehearing is denied.

Dated: _________________ ________________________________

 Kline, P.J.
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Filed 1/29/16 Thomas Dee Engineering Co. v. Khtikian CA1/2 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THOMAS DEE ENGINEERING 

COMPANY, INC.,

Plaintiff, Cross-Defendant, and 

Appellant,

v.

WARREN KENT KHTIKIAN

Defendant, Cross-Plaintiff, and 

Respondent.

 A146590

 (Marin County

 Super. Ct. No. CV-1404231)

Respondent Warren Kent Khtikian has filed a motion to dismiss the appeal of 

appellant Thomas Dee Engineering Company, Inc. in this case arising out of a dispute 

over attorney fees appellant allegedly owed respondent for his legal representation. 

Respondent contends appellant has appealed from a non-appealable minute order. We 

agree, and shall grant the motion to dismiss. 

BACKGROUND

On November 7, 2014, appellant filed a complaint against respondent, alleging 

various causes of action related to respondent’s right to attorney fees during and after 

respondent’s representation of appellant. On December 2, 2014, respondent filed a crosscomplaint against appellant, alleging that appellant had breached the fee agreement and 

was also liable on several other causes of action.

Following a mediation with retired Alameda County Superior Court Judge Bonnie 

Sabraw, on February 16, 2015, the parties signed a stipulation for settlement, in which 
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appellant agreed to pay respondent $1.5 million. The stipulation for settlement further 

required the parties to thereafter execute both a mutual release document and a stipulation 

requesting the trial court to retain jurisdiction to enforce the agreement. When appellant

subsequently refused to comply with the terms of the settlement, informing respondent’s

counsel “that the express conditions of the settlement had not been met,” respondent filed 

a motion for entry of judgment, pursuant to Code of Civil Procedure section 664.6.

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On October 6, 2014, at the conclusion of a hearing on respondent’s motion, the 

trial court granted the motion, finding that “no terms remain in dispute. The parties 

agreed to execute ‘full and complete releases’ and even agreed on the language of the 

releases through counsel. The parties also agreed to submit a stipulation and order to the 

court requesting the court retain jurisdiction. Accordingly, neither the conditional nature 

of the settlement nor the unfulfilled terms provide a barrier to entry of judgment. The 

settlement agreement only remains conditional because [appellant] refuses to do the 

ministerial acts required by the express settlement language.” In its minute order, the

court ordered the parties to “execute the release contemplated by the settlement 

agreement” and “to execute a request for the court to retain jurisdiction for purposes of 

enforcing the settlement agreement. [¶] . . . . [Appellant] may offer alternative language 

to that proposed by [respondent]. However, if the parties cannot agree on language by 

October 13, 2015, they shall mediate with Judge Sabraw as provided in the settlement 

agreement. If the parties still cannot reach agreement, they may submit competing 

language to the court no later than November 3, 2015, and the court shall decide the 

language that shall govern and order execution of the documents based on that language.” 

 

1 All further statutory references are to the Code of Civil Procedure. 

Section 664.6 provides: “If parties to pending litigation stipulate, in a writing 

signed by the parties outside the presence of the court or orally before the court, for 

settlement of the case, or part thereof, the court, upon motion, may enter judgment 

pursuant to the terms of the settlement. If requested by the parties, the court may retain 

jurisdiction over the parties to enforce the settlement until performance in full of the 

terms of the settlement.” 
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On October 16, 2015, appellant filed a notice of appeal “from the Minute Order 

dated October 6, 2015.”2 On November 17, 2015, after a hearing, the trial court found 

that all proceedings, including the contemplated entry of judgment, were stayed by this 

appeal. 

DISCUSSION

Respondent contends the present appeal must be dismissed because appellant has 

appealed from a non-appealable interlocutory order. Appellant counters that the order 

was appealable either as a collateral order or an injunction. 

Normally, only final judgments are appealable. (§ 904.1, subd. (a)(1).) Certain 

interlocutory orders are also appealable. These include the grant of an injunction

(§ 904.1, subd. (a)(6)) and certain collateral orders. (Smith v. Smith (2012) 208 

Cal.App.4th 1074, 1084 (Smith) [“ ‘[o]ne exception to the “one final judgment” rule 

codified in . . . section 904.1 is the so-called collateral order doctrine’ ”].) 

We agree with respondent that the minute order in this case is an interlocutory 

order that is not presently appealable, and that appellant’s legal arguments and citations 

to authority are inapplicable to the present circumstances. First, the order is not 

appealable as a collateral order. “ ‘In determining whether an order is collateral, “the test 

is whether an order is ‘important and essential to the correct determination of the main 

issue.’ If the order is ‘a necessary step to that end,’ it is not collateral. [Citations.]”

[Citations.]’ ” (Smith, supra, 208 Cal.App.4th at p. 1084.) Here, the minute order is not 

effectively a final judgment on a collateral issue. Rather, it is a necessary step toward

resolution of the main issue. That is, because the minute order merely required the 

parties to take the next step agreed to in their stipulation and settlement as part of the 

process leading to entry of judgment, it is clearly not collateral. (See Ibid.) 

 

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The issue on appeal, according to appellant, involves “deciding the scope, if any, 

of a trial court’s section 664.6 injunctive powers to force parties to complete the process 

of forming an enforceable settlement agreement.” 
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Second, the order in question is not an order granting an injunction. The trial 

court’s minute order simply requires the parties either to agree to or engage in mediation 

to determine the precise language of the mutual release and retained jurisdiction 

provisions to which they have already agreed, or, if they cannot reach an agreement, to

have the trial court decide the language. As respondent points out, “the minute order here 

is a standard interlocutory case management order essentially directing the parties to meet 

and confer” before returning to the trial court for issuance of a final judgment. (Cf.

Smith, supra, 208 Cal.App.4th at p. 1091 [“ ‘where a formal order is required, a minute 

order is not appealable’ ”].) 

Finally, we observe that to countenance appellant’s legal theories, which have no 

support in the case law, would invite marginal or frivolous appeals simply for the purpose 

of delaying a final judgment and payment of damages or postjudgment interest. Here, for 

example, appellant will have the opportunity to appeal from the final judgment. 

However, if it wishes to obtain a stay of enforcement of the judgment pending resolution 

of that appeal, it will be required to satisfy certain statutory requirements before it can do 

so. (See § 917.1, subd. (a)(1) [requiring payment of appellate bond]; cf. § 685.010

[requiring payment of accrued postjudgment interest if judgment is affirmed on appeal].) 

For all of these reasons, we shall grant respondent’s motion to dismiss appellant’s 

premature appeal. 

DISPOSITION

The appeal is dismissed. Costs on appeal are awarded to respondent. 
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_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Miller, J.