NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YELP INC.,

Plaintiff

- Appellee,

v.
EDWARD JAMES HERZSTOCK, DBA Revleap Corp.,

Defendant

- Appellant. No. 18

- 15948

D.C. No. 5:15

- cv

- 00693

- PSG

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted December 6, 201 9 San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH, ** District Judge.

I

Edward James Herzstock appeals the district court’s entrance of a Stipulated

J udgment in favor of Yelp Inc. (Yelp) after the district court found that Herzstock

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. 

# FILED

DEC 19 2019

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

breached the parties’ Settlement Agreement. We have jurisdiction under

28 U.S.C. 1291. Because Herzstock waived his right to appeal, we affirm.

The parties agree d to a Settleme nt Agreement, which stated that Yelp could

move the district court to enter the Stipulated Judgment if Herzstock breached the

Agreement. The Stipulated Judgment included a complete appellate waiver, in

which Herzstock agree d to “waive all rights to seek j udicial review or otherwise

challen ge or contest the validity of any Stipulated Judgment

. . . if [Herzstock]

breach[s]

. . . the Agreement.”

Yelp, believing Herzstock to have breached the Agreement, moved the district

court to enter the Stipulated Judgm ent , and the district court did so after finding that
Herzstock breached the Agreement

. On appeal, Herzstock argues that the appellate
waiver does not bar his appeal because he did not breach the Agreement and then

argues that the district court abused it s discretion in not holding an evidentiary
hearing to determine whether he breached the Agreement.

II
Holding that Herzstock’s appellate waiver is effective , we affirm. A district
court has the power to summarily enforce a settlement agreement. Dacanay v

.
Mendoza , 573 F.2d 1075, 1078 (9th Cir. 1978)

. Also , a party generally cannot
appeal from a stipulated judgment. U.A. Local 342 Apprenticeship & Training Tr.

v. Babcock & Wilcox Const. Co. , 396 F.3d 1056, 1058 (9th Cir. 2005); Slaven v. Am.3

Trading Transp. Co., Inc. , 146 F.3d 1066, 1070 (9th Cir. 1998).

A party can , exceptionally, appeal from a stipulated judgment if the party

claims a lack of consent to the judgment, preserves their right to appeal, or claims a
lack of subject

- matter jurisdiction. United States v. Bechtel Corp. , 648 F.2d 660,
663 (9th Cir. 1981). When a stipulated judgment is clear on its face and consent is
clear from the record, a court “always affirm[s].” Swift & Co. v . United States , 276
U.S. 311, 324 (1928).
Here, none of the exception s to the general rule appl ies

. N othing in the record

demonstrate s a lack of consent to the terms of the Agreement or Stipulated

Judgment . Herzstock did not preserve his right to appe al and he does not claim that
the district court lacked subject

- matter jurisdiction. O n their faces
, the documents

show that Herzstock waived his right to appeal from the judgment. Consequently,

we are bound to affirm.

III
Alternatively
, we hold that Her zstock waived the argument that the district

court should have held an evidentiary hearing by not raising it below. Singleton v.
Wulff , 428 U.S. 106, 120 (1976); In re Mercury Interactive Corp. Sec. Litig. , 618
F.3d 988, 992 (9th Cir. 2010). None of the exceptions to the general argument

waiver rule appl ies here. See United States v. Patrin , 575 F.2d 708, 712 (9th Cir.
1978).4

AFFIRMED.