Afshar v. Mourshaki





Filed 5/20/11 Afshar v. Mourshaki CA4/3

1



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

H. MOSHER AFSHAR, Plaintiff and Respondent, v. ABRAHAM NASSIRI MOURSHAKI, Defendant and Appellant.

G043756 (Super. Ct. No. 07CC06309) O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions pursuant to Code of Civil Procedure section 128, subdivision (a)(8).
Anglin, Flewelling, Rasmussen, Campbell & Trytten, Robin C. Campbell and Mark T. Flewelling for Plaintiff and Respondent.
John K. Saur for Defendant and Appellant.
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THE COURT:*
The parties have jointly requested that we reverse an order denying a motion to vacate a judgment. The parties agree the judgment does not comply with the statutory requirements for oral stipulations for settlement because they did not themselves personally acknowledge the settlement to the trial court. (See Code Civ. Proc. § 664.6.)[1] As we discuss below, section 664.6 requires litigants, not just counsel, to consent to a settlement. (Critzer v. Enos (2010) 187 Cal.App.4th 1242 (Critzer); Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 550-551 (McElroy); Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1708 (Johnson).)
We grant the stipulated request for reversal. We discern no public policy reason to preserve a judgment that itself is unenforceable under section 664.6. As a result, the stipulated request comports with settled case law, advances the public good and furthers judicial economy. (See § 128, subd. (a)(8).)
I
Plaintiff and defendant became involved in a dispute involving real estate parcels located in Orange County and in Iran. Litigation ensued in the United States and in Iran.
On February 4, 2009, the parties, acting through their counsel, entered into an oral settlement before the trial court. The parties were present at the hearing, but did not personally assent.
Plaintiff filed a motion under section 664.6 to enter judgment pursuant to the oral settlement. On January 19, 2010, the trial court filed a judgment under section 664.6 for plaintiff and against defendant. On February 9, 2010, defendant served and filed a notice of entry of judgment. Plaintiff did not file a timely notice of appeal from the judgment. (Cal. Rules of Court, Rule 8.104(a).)
On March 22, 2010, plaintiff filed a motion to vacate the judgment pursuant to section 473. The trial court heard and denied the motion on April 26, 2010. Plaintiff filed a notice of appeal on June 8, 2010, specifically referencing the denial of the motion to vacate.
Plaintiff’s principal issue on appeal is the lack of consent by either side. “The Reporter’s Transcript [of the February 4, 2009 hearing], which encompasses . . . the entirety of the oral ‘settlement,’ is devoid of both (1) any evidence of understanding of the terms of the purported ‘settlement,’ and (2) any assent to those terms.”
Rather than filing a respondent’s brief, defendant acknowledged the legal merit of plaintiff’s arguments, and joined in a stipulated request to reverse the judgment and remand the action to the trial court for further proceedings and trial.
II
We deal with a jurisdictional prerequisite, neither raised nor briefed by the parties. Is there a timely notice of appeal from an appealable order‌
We conclude the answer is yes.
An order enforcing a settlement that is not entered in compliance with section 664.6 is void. (Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 528-529.) If a judgment is void, so too is a postjudgment order giving effect to the void judgment. As such, the postjudgment order is subject to appeal even if the underlying judgment also is subject to appeal. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008-1009 (Doppes).)
In Doppes, an automobile manufacturer challenged the award of prejudgment interest to an aggrieved buyer who filed suit after purchasing a luxury car with an “obnoxious” interior odor. Rather than appealing directly from the judgment, the the manufacturer waited for some months before filing a motion to vacate the prejudgment interest award. The Doppes court held the manufacturer could use the appeal from the denial of the motion to vacate as a vehicle to challenge the trial court’s jurisdiction to award prejudgment interest. “We therefore conclude the order denying [the manufacturer’s] motion to set aside the judgment . . . is appealable and deny the motion to dismiss the appeal.” (Doppes, supra, 174 Cal.App.4th at p. 1009.)[2]
As in Doppes, plaintiff can raise the appellate issue of the trial court’s jurisdiction to confirm the oral settlement by appeal from the postjudgment order denying his motion to set aside the judgment.
III
Section 664.6 allows parties to quickly and expeditiously enforce settlements within the rubric of existing litigation without the need to file new lawsuits. “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)[3]
The leading decision is Levy v. Superior Court (1995) 10 Cal.4th 578 (Levy), where the California Supreme Court concluded that the term “parties,” as used in section 664.6, referred to the litigants themselves, nor their counsel and therefore required the litigants’ “direct participation” to protect against “hasty and improvident settlement agreements . . . .” (Levy, at p. 585.)
Following Levy, the Court of Appeal in Johnson, supra, 38 Cal.App.4th 1700, rejected enforcement of an oral settlement agreement even though the clients were personally involved in the settlement negotiations. Despite this, Johnson held the oral agreement to be unenforceable because the litigants failed to personally acknowledge the settlement to the court. (38 Cal.App.4th at p. 1709; see also McElroy, supra, 104 Cal.App.4th at pp. 550-551 [client’s head nod was insufficient to establish party’s “unambiguous assent” to oral settlement agreement]; Critzer, supra, 187 Cal.App.4th 1242 [no evidence of personal consent to recited terms of settlement by two of the five parties].)
Here too, it is undisputed that neither party personally acknowledged and accepted on the record the settlement terms as recited to the trial court by counsel. The settlement, as a result, is unenforceable under the summary procedure set forth in section 664.6. By accepting the parties’ stipulated request for reversal, we hasten this appeal’s likely outcome, avoiding the need for further detailed briefing by the parties and the unnecessary expenditure of private and judicial resources. This meets the statutory criteria for stipulated requests for reversal. (§ 128, subd. (a)(8); see also Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1330-1331.)
The order denying appellant’s motion to set aside the postjudgment order is reversed pursuant to the parties’ stipulation. The trial court is directed to reverse the underlying judgment and set the action below for further proceedings and trial. The parties shall bear their own costs on appeal.

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