Thomas Dee Engineering Co. v. Khtikian CA1/2 ( 2016 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A146590
Appellant,
(Marin County
v. Super. Ct. No. CV-1404231)
WARREN KENT KHTIKIAN
ORDER MODIFYING OPINION
Defendant, Cross-Plaintiff, and AND DENYING REHEARING
Respondent. 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.
1
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A146590
Appellant,
(Marin County
v. Super. Ct. No. CV-1404231)
WARREN KENT KHTIKIAN
Defendant, Cross-Plaintiff, and
Respondent.
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 cross-
complaint 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
1
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 664.6.1
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.”
2
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.)
2
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.”
3
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.
4
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
5