NOT FOR PUBLICATION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, 2019

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 

Judgment 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 APPEALS
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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 agreed to a Settlement 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 agreed to “waive all rights to seek judicial review or otherwise 

challenge 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 Judgment, 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 its 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. 
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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 exceptions to the general rule applies. Nothing in the record 

demonstrates a lack of consent to the terms of the Agreement or Stipulated 

Judgment. Herzstock did not preserve his right to appeal and he does not claim that 

the district court lacked subject-matter jurisdiction. On 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 Herzstock 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 argumentwaiver rule applies here. See United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 

1978).
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AFFIRMED.