Filed 8/20/26 Georgiou v. Barkett CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
BYRON GEORGIOU et al., B346722
Plaintiffs and Respondents,
v. (Los Angeles County Super. Ct. No. 23SMCV04219)
WILLIAM J. BARKETT et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark H. Epstein, Judge. Affirmed.
GM Legal, David M. Gilmore for Defendants and Appellants. Fennemore, James P. Hill, Kathleen A. Cashman-Kramer for Plaintiffs and Respondents.
INTRODUCTION
Here we decide that a party who claims an inability to pay reference fees but provides no supporting evidence fails to meet their burden and must accept a resulting default judgment entered against them. Plaintiffs loaned defendants $3,375,000. As part of the loan agreement, defendants executed a promissory note. The note provided that all disputes arising out of the note would be resolved by general reference proceedings under Code of Civil Procedure section 638.1 When defendants defaulted on the note, plaintiffs filed suit and moved the trial court to appoint a referee. The trial court did so and ordered the parties to split the referee’s fees.
From the inception of the reference proceedings, the defendants failed to pay their share of the reference fees. When the referee threatened to strike their answer if they failed to pay, the defendants filed a motion to remand the proceedings to the trial court, claiming they could not afford the referee’s fees. The trial court denied the motion, concluding that the defendants failed to show they could not afford the referee’s fees. The referee ultimately struck defendants’ answer and entered a default judgment against defendants in plaintiffs’ favor. The trial court then entered the referee’s judgment under section 644.
Defendants now appeal, arguing the referee erred in denying certain motions and entering default judgment against them. They also argue the trial court erred in denying their second motion to remand. We affirm.
1 All further statutory references are to the Code of Civil Procedure unless otherwise specified.
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FACTUAL AND PROCEDURAL BACKGROUND In 2008, Byron Georgiou and Thérèse Collins agreed to loan $3,375,000 to William Barkett and Lisa Barkett. As part of the loan, the Barketts executed a promissory note pledging to repay the $3,375,000, with interest, by December 1, 2009. The note contained a provision stating that “any controversy, dispute or claim between the parties arising out of or relating to this note . . . shall be settled by a general reference proceeding, in Los Angeles, California in accordance with the provisions of section 638 et seq. of the California Code of Civil Procedure . . . which shall constitute the exclusive remedy for the settlement of any such controversy, dispute or claim.” (Capitalization omitted.) As part of the reference provision, the parties agreed that the referee’s decisions “shall be binding and such decisions may not be appealed.” (Capitalization omitted.) Georgiou and Collins subsequently assigned their interest in the note to the Georgiou Children Gift Trust.
I. Litigation
In September 2023, Georgiou and Collins, acting as trustees of the Georgiou Children Gift Trust, filed suit against the Barketts, asserting a single cause of action for breach of contract based on the Barketts’ failure to satisfy the promissory note.
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In response, the Barketts filed a motion to stay the entire case. The Barketts argued that William2 was charged in criminal proceedings stemming from allegations that he made false claims to the City of Industry and improperly received and used city funds in connection with a solar energy development project. They argued that the criminal allegations against William included the claim that he used funds from the City of Industry to pay personal expenses, such as making payments on the promissory note. They claimed that the allegations in the criminal proceedings were thus “intertwined” with the civil action to collect on the note, implicating William’s Fifth Amendment rights against selfincrimination .
While the motion to stay was pending, the Barketts also filed a demurrer to the complaint, arguing the claim for breach of contract was barred by the applicable statute of limitations. At the same time, Georgiou and Collins filed a motion to establish a general reference proceeding under the terms of the note.
At a subsequent hearing, the parties stipulated to the Hon. Amy Hogue (Ret.) as referee. The trial court directed the parties to prepare and submit a proposed order. While the record on this point is unclear, it appears the parties jointly submitted a proposed order, which was subsequently executed and entered by the trial court. The order was prepared on a form provided by the Judicial Council of California. On the form, a box was checked indicating that “The referee’s fees will be paid as agreed by the parties.” Additional text was added to the form indicating that “Compensation will be paid on a 50/50 basis by the parties.”
2 As William and Lisa Barkett share a last name, we refer to William by his first name for clarity. No disrespect is intended.
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II. Reference Proceedings
When the reference proceedings commenced on January 11, 2024, the Barketts did not make the initial deposits for their share of the reference fees. As a result, Georgiou and Collins advanced the Barketts’ share of the reference fees in order for the proceedings to move forward. The Barketts’ demurrer and motion to stay were heard by the referee, who overruled the demurrer and denied the motion to stay.
In May 2024, Georgiou and Collins brought a motion for terminating sanctions based on the Barketts’ alleged pattern of doing “everything within their power to delay and frustrate these proceedings,” including “by failing and refusing to pay their agreed (and court ordered) 50 percent of the referee fees.” In their opposition, the Barketts claimed for the first time that they could not afford to pay their share of the referee’s fees. The referee rejected that claim, concluding that “the only reasonable inference from the evidence presented is that [the Barketts] are refusing to pay their share of the Referee’s fees for personal or tactical reasons.” The referee subsequently granted the motion for terminating sanctions, noting that “It is . . . painfully apparent that [the Barketts] prefer to pay their attorneys to engage in dilatory tactics rather than comply with the court order compelling them to fund the reference proceedings.”
In December 2024, the referee noted that the Barketts “remain unable or unwilling to pay their contractually required share of the Referee’s fees.” The referee suspended all proceedings until February 3, 2025, and notified the Barketts that if they failed to provide their share of the referee’s fees before that date, she would deem them to be in default.
The Barketts did not pay their share of the referee’s fees. Instead, on February 3, 2025, they filed a motion asking the referee to remand the
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proceedings back to the trial court. In their motion, the Barketts again asserted they could not afford the referee’s fees and argued that it would be improper to hold them in default based on their inability to pay. The motion was unaccompanied by any evidence of the Barketts’ financial condition.
The referee denied the motion, concluding the Barketts “failed to present any evidence of their alleged inability to pay reference fees notwithstanding the Referee’s repeated rulings and statements confirming that they have the burden of submitting evidence and proving their alleged inability to pay.” The referee also struck the Barketts’ answer, entered default against them, and set a default prove-up hearing.
The Barketts responded by filing a second motion to remand, this time in the trial court. In their motion, the Barketts again argued they could not pay the reference fees and that the referee erred by striking their answer and entering default against them. The motion was accompanied by a declaration from the Barketts’ counsel stating that his clients were unable to pay the reference fees. The trial court denied the motion in March 2025, noting that the Barketts bore the burden of establishing they could not afford to pay the reference fees. The court determined the Barketts did not carry their burden as there was “no evidence before this court that [the Barketts] cannot pay the reference fee; in fact, there is no evidence at all other than a declaration from counsel that is, obviously, of no evidentiary weight on this point.”
III. Judgment
While the Barketts’ second motion to remand was pending in the trial court, the referee held a default prove-up hearing and entered a default judgment awarding Georgiou and Collins approximately $29.3 million in damages. In March 2025, the trial court entered the referee’s default judgment as the judgment of the court. The Barketts timely appealed.
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DISCUSSION
I. Waiver of Appeal
Georgiou and Collins argue this appeal should be dismissed as the Barketts expressly waived any right to appeal the referee’s decisions. We agree that the Barketts have waived their right to appeal the referee’s decisions.
A. Legal Standards Section 644, subdivision (a), provides that “In the case of a consensual general reference pursuant to Section 638, the decision of the referee or commissioner upon the whole issue must stand as the decision of the court, and upon filing of the statement of decision with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court.” Section 645 provides “The decision of the referee appointed pursuant to Section 638 or commissioner may be excepted to and reviewed in like manner as if made by the court.”
“It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions: 1. The attorney must have the authority to waive a party’s right to appeal. 2. The waiver must be express and not implied. 3. The waiver must not have been improperly coerced by the trial judge.” (McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 488 (McConnell).) Accordingly, “[c]ourts will dismiss appeals brought by parties who have signed a written agreement expressly waiving
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the right to appellate review. [Citations.]” (Heenan v. Sobati (2002) 96 Cal.App.4th 995, 1003.)
“It is fundamental that ‘any waiver of the right to appeal must be clear and express.’ [Citations.]” (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1322.) “[I]f the parties to a contract want their agreement to encompass a waiver of the right to appeal from an anticipated judicial ruling, they must say so explicitly and unambiguously; they cannot leave their intent to be inferred from the language of the agreement.” (Ruiz v. California State Automobile Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 605.)
“The basic goal of contract interpretation is to give effect to the parties’
mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties’ intention is determined from the writing alone, if possible. [Citation.]” (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955 (Founding Members).) Where, as here, no extrinsic evidence was introduced, we independently construe the language of the promissory note based on its words alone. (Ibid.)
B. The Barketts Waived Their Right to Appeal the Referee’s Decisions The promissory note here contains an express waiver of appellate rights: “all decisions of the referee shall be binding and such decisions may not be appealed.” (Capitalization omitted.) In addition to signing the note itself, the Barketts also separately initialed this waiver to expressly indicate that they read it, understood it, and agreed to be bound by it. The plain language of the agreement is clear that the parties agreed to waive any appellate review of the referee’s decisions in the reference proceedings.
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On appeal, the Barketts do not contend that the waiver was executed without their authority or was coerced by the referee or trial judge. (McConnell, supra, 176 Cal.App.3d at p. 488.) Instead, they argue that they could not have waived their right to appeal the referee’s rulings because section 645 gives them a statutory right to seek appellate review of the referee’s decisions as if they were made by a trial court. In other words, the Barketts argue they cannot be deemed to have waived their statutory right to appeal under section 645 because they have a statutory right to appeal under section 645. This circular argument misses the mark.
“The right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Courts routinely enforce waivers of statutory appellate rights. (See, e.g., Gordon v. Kifer (1938) 26 Cal.App.2d 252, 254–255; Fowlkes v. Ingraham (1947) 81 Cal.App.2d 745, 746–747; People v. Becerra (2019) 32 Cal.App.5th 178, 186; Elliott, supra, 57 Cal.App.4th at p. 505.) The Barketts offer no authority or argument suggesting that the statutory appellate rights conferred by section 645 are unwaivable. 3 “It is the parties’ responsibility to support claims of error with meaningful argument and citation to authority. [Citations.] When they do not furnish legal argument with citation to authority on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.]” (Shaw v. Los Angeles Unified School Dist. (2023) 95 Cal.App.5th 740, 754 (Shaw).)
There would also be no need to include a waiver of appellate rights in the promissory note unless the parties believed that they otherwise had the
3 The same is true for the Barketts’ claim that they cannot be deemed to have waived their appellate rights because appellate courts have permitted review of default judgments.
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statutory right to appeal the referee’s decisions and mutually agreed to waive that right. (See Rice v. Downs (2016) 248 Cal.App.4th 175, 186 [“An interpretation that leaves part of a contract as surplusage is to be avoided”].)
We also reject the Barketts’ claim that Georgiou and Collins have waived the argument that this appeal is barred by the appellate waiver in the note because they raised it for the first time in their appellate brief. The Barketts appear to suggest that Georgiou and Collins were obligated to raise the argument that the parties had contractually waived their appellate rights, not in the Court of Appeal, but in the trial court at the beginning of the case and the very inception of the general reference proceeding—even though the trial court has no appellate authority and nothing was ripe for appeal at that point in time. This assertion is unsupported by any reasoned argument or citation to authority. (Shaw, supra, 95 Cal.App.5th at p. 754.)
The Barketts also argue that “At best the note is ambiguous as to whether the parties understood that in agreeing to a general reference that that foreclosed review of the award.” But the Barketts have not identified any ambiguity or reasonable alternative interpretation of the express contract language that “all decisions of the referee shall be binding and such decisions may not be appealed.” (Capitalization omitted.) Here, the language of the note is susceptible to only one reasonable interpretation: the parties agreed to waive their statutory rights to seek appellate review of the referee’s decisions.
We conclude the Barketts have waived the right to seek appellate review of the referee’s decisions. Accordingly, we do not reach the merits of the Barketts’ claims of error concerning the referee’s rulings.4
4 Georgiou and Collins’s request for judicial notice is denied as moot.
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However, we decline Georgiou and Collins’s invitation to dismiss the Barketts’ appeal in its entirety. The Barketts’ appeal is not limited to seeking review of the referee’s decisions; they also seek review of the trial court’s ruling denying their second motion to remand. By its express language, the appellate waiver in the promissory note was limited to “all decisions of the referee” without limiting the parties’ ability to seek appellate review of the trial court’s rulings. The law on this point is clear: any waiver of the right to appeal must be clear and express, and any doubt must be resolved against a finding of waiver. (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952–953.) We conclude the Barketts have not waived their right to seek appellate review of the trial court’s ruling denying their second motion to remand.
II. Second Motion for Remand
The Barketts argue the trial court erred in denying their second motion to remand because: (1) they did not agree to pay half the referee’s fees as provided in the trial court’s order, and (2) they were not able to afford the referee’s fees. Neither contention has merit.
The Barketts’ assertion that they did not agree to pay half the referee’s fees is belied by the record. The order appointing the referee indicated that “The referee’s fees will be paid as agreed by the parties” and that the parties agreed to pay the fees “on a 50/50 basis.” On appeal, the Barketts have cited no evidence to the contrary. Nothing in the record suggests the Barketts ever objected to this apportionment of the referee’s fees. (Jameson v. Desta (2018) 5 Cal.5th 594, 609, fn. 11 (Jameson) [“if it is not in the record, it did not happen”].) The record before us indicates the Barketts agreed to pay half the referee’s fees.
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But even if the record supported the Barketts’ claim, this line of argument would still fail. When a referee has been appointed under section 638, and the parties have not agreed on the payment of the referee’s fees, section 645.1 gives the trial court the power to “order the parties to pay the fees . . . in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties.” (§ 645.1, subd. (b).) The Barketts have not attempted to show that the trial court’s apportionment of fees was unfair or unreasonable. (Shaw, supra, 95 Cal.App.5th at p. 754.) We conclude that, regardless of whether they expressly agreed to do so, the Barketts were obligated to pay half the reference fees.
We also reject the Barketts’ assertion they were unable to pay the referee’s fees. In ruling on the Barketts’ motions for remand, the referee and trial court both concluded that the Barketts bore the burden of establishing their inability to pay. The trial court concluded that the Barketts did not carry their burden because their motion was only supported by the conclusory declaration of their counsel, which carried “no evidentiary weight.”
The Barketts do not contend the trial court erred in reaching either of these conclusions. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson, supra, 5 Cal.5th at pp. 608–609.) The Barketts simply ignore these aspects of the trial court’s ruling and repeatedly represent that they were unable to bear the referee’s fees without citing any evidence in the record that supports their claim. This is insufficient to establish error by the trial court. (Ibid.)
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The Barketts’ reliance on Aronow v. Superior Court (2022) 76 Cal.App.5th 865 (Aronow) is misplaced. The Barketts argue that under Aronow, the trial court was obligated to hold an evidentiary hearing regarding their ability to pay the reference fees and erred when it “refused to do so.” This argument fails for several reasons.
First, the Barketts misrepresent the record in making this argument.
In moving to remand, the Barketts did not ask the trial court to hold an evidentiary hearing regarding their ability to pay. The trial court did not “refuse” to hold a hearing that the Barketts never asked the court to hold. The Barketts’ failure to request an evidentiary hearing in the trial court means they have forfeited this claim of error on appeal. “The traditional rule is that ‘a party must raise an issue in the trial court if they would like appellate review.’ [Citation.]” (Ramirez v. Department of Motor Vehicles (2023) 88 Cal.App.5th 1313, 1335.) The failure to do so results in forfeiture of that claim of error. (See Egelston v. State Personnel Bd. (2025) 112 Cal.App.5th 1050, 1055; In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695.)5 Second, even if the Barketts had not forfeited this line of argument, Aronow does not stand for the proposition cited by the Barketts. The Aronow court did not conclude that a trial court must hold an evidentiary hearing whenever a party makes an unsupported claim that they are unable to bear the costs of alternate dispute resolution. Instead, the Aronow court expressly stated that “the trial court has discretion to decide [a party]’s ability to pay
5 The Barketts have also forfeited this claim of error by raising it for the first time in their reply brief on appeal. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
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arbitration fees and can do so upon declarations with supporting exhibits or after conducting an evidentiary hearing.” (Aronow, supra, 76 Cal.App.5th at p. 885.) On appeal, the Barketts have not attempted to show that the trial court abused its discretion in ruling on the remand motion based on the parties’ respective declarations and supporting exhibits rather than conducting an evidentiary hearing. (Shaw, supra, 95 Cal.App.5th at p. 754.)
The record shows that, before filing their second motion to remand, the Barketts were repeatedly and expressly cautioned that they bore the burden of establishing that they were unable to pay the referee’s fees. The Barketts had several opportunities to carry this burden by presenting evidence of their financial condition. Yet, in moving the trial court for relief, they declined to produce such evidence and instead relied solely on a declaration from their counsel which made broad and perfunctory assertions of fact without providing any foundation or supporting evidence. The trial court correctly determined counsel’s declaration had no evidentiary weight. (See Evid. Code, § 702 [“the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter”].) Nothing in Aronow suggests the Barketts were entitled to a third bite at the apple.
We therefore find no error in the trial court’s denial of the Barketts’
second motion to remand.6
6 The parties do not provide any persuasive authority regarding the applicable standard of review for the trial court’s ruling on the second motion for remand. The Barketts argue that de novo review is appropriate because their motion to remand implicated their due process rights. However, Aronow suggests such motions are committed to the discretion of the trial court. (See Aronow, supra, 76 Cal.App.5th at p. 885.) We ultimately need not determine what standard of review to apply as we would affirm the trial court’s ruling even under the de novo standard urged by the Barketts.
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DISPOSITION
The judgment is affirmed. Georgiou and Collins are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
TAMZARIAN, J.
DAUM, J.