Weinsaft v. Deckel CA2/4 ( 2022 )

Filed 12/9/22 Weinsaft v. Deckel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 fo r
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 This opinion has not been certified for publication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
LEONARD B. WEINSAFT, B313200
Plaintiff and Respondent, (Los Angeles County
Super. Ct. 19STCV03524)
v.
AMI DECKEL et al.,
Defendants;
JONATHAN DECKEL et al.,
Prospective Intervenors/
Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
Maurice A. Leiter, Judge. Affirmed.
Lesowitz Gebelin and Scott M. Lesowitz for Prospective Intervenors
and Appellants.
Venable and Witt W. Chang for Plaintiff and Respondent.
______________________________
Prospective intervenors and appellants Jonathan, Adam, and Alyssa
Deckel appeal from the trial court’s denial of their motion to intervene or
substitute in as defendants in an action initiated by plaintiff and respondent
Leonard Weinsaft. Respondent’s underlying lawsuit against defendants Ami
and Phoebe Deckel,1 the parents of appellants, sought partition of rental
property jointly owned by him and defendants. Appellants requested to
intervene in that action because their father, Ami, had transferred his entire
interest in the property to them.
Appellants did not move to intervene until more than a year had
passed since defendants and respondent had reached a settlement agreement
in the partition action and the case had been voluntarily dismissed, subject to
the court’s continuing jurisdiction to enforce the settlement agreement. By
the time appellants brought their motion, the trial court had already entered
a stipulated judgment previously executed by respondent and defendants
that appointed a referee to conduct a partition by sale. In the same motion
requesting to intervene, appellants sought to set aside the stipulated
judgment, rescind and void the parties’ earlier settlement agreement, and
relieve the appointed referee.
We find no abuse of discretion in the trial court’s denial of the
intervention request on the grounds that it was untimely. It follows that
appellants lack standing to assert any objections or claims in the underlying
action. Consequently, we affirm the trial court’s order.
1 Because appellants and the defendants in the underlying action share
the same surname, we periodically refer to defendants as “Ami” or “Phoebe”
for clarity. Phoebe, Ami’s wife and the mother of appellants, passed away on
March 21, 2020.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying Action in Which Appellants Sought to Intervene
A. Initial Complaint and Lawsuit
Respondent and defendants were each 50 percent owners as tenants in
common of two similar apartment buildings located side-by-side in West
Hollywood (the “Property”). Respondent and Phoebe are brother and sister;
their parents originally purchased the Property, which in 2001 passed in
equal shares to Leonard and Phoebe (and her husband Ami), via their
respective trusts.
On January 23, 2019, respondent, as Trustee of the Leonard B.
Weinsaft Revocable Trust, filed suit against Ami and Phoebe, as Trustees of
the Ami and Phoebe Deckel Family Trust. Respondent sought partition of
the Property, appointment of a receiver, and an accounting.
The parties litigated the case throughout 2019, and trial was set for
March 2, 2020.
B. The March 2020 Settlement Agreement and Voluntary
Dismissal of Action
The parties entered into a settlement agreement, effective March 1,
2020, the day before the scheduled trial date. The settlement agreement
disposed of the entire action and provided for the sale of the Property, with
the two sides splitting the proceeds. The agreement provided for two phases.
In the first phase, the parties were to use two brokers (one of each
side’s choosing) to try to sell the Property within one year. The parties would
stipulate to dismiss the case without prejudice, with the court retaining
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jurisdiction under Code of Civil Procedure section 664.62 to enforce the
settlement. If either party breached the settlement agreement, or the
Property was not sold by April 1, 2021, the parties would proceed to the
second phase.
Under the second phase, either party could move ex parte to have a
stipulated judgment entered and filed by the court. The stipulated judgment,
executed by the parties concurrently with the settlement agreement, provided
for the appointment of Referee Kevin Singer to conduct a partition by sale
and manage the Property in the interim period.
The settlement agreement contained a provision stating that the
agreement “shall be binding upon and inure to the benefit of any
beneficiaries, executors, administrators, heirs, successors and assigns of each
Party.”
On March 11, 2020, consistent with phase one contemplated in the
settlement agreement, the trial court entered the parties’ stipulated
dismissal of the action without prejudice, retaining only section 664.6
jurisdiction to enforce the settlement agreement.
2 Section 664.6 provides: “If parties to pending litigation stipulate, in a
writing signed by the parties outside of 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.” (§ 664.6, subd. (a).) All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
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C. October 2020 Transfer of the Property by Ami to Appellants
On October 5, 2020, Ami deeded his entire interest in the Property to
appellants, his three children, as a “bona fide gift” for no consideration. The
deed was recorded on November 25, 2020.
Appellants did not seek to intervene in the action at that time. Nor is
there any indication in the record that they notified the court of the Property
transfer.
D. Court’s Entry of Stipulated Judgment in April 2021 Pursuant to
Phase Two of Settlement Agreement
On April 1, 2021, in light of the Property not having been sold, plaintiff
Weinsaft filed an ex parte application to enforce the settlement, asking the
court to enter the previously prepared stipulated judgment that called for the
appointment of a referee to oversee the sale.
On April 2, 2021, at the ex parte hearing, counsel for Ami stated he did
not oppose the application on the merits, but would not stipulate to
immediate entry of the judgment. The minute order further reflects that
counsel for Ami “indicated he wanted to give family members with an
ostensible interest in the matter an opportunity to informally have
discussions with the parties and possibly obtain counsel.” The court
continued the hearing to April 5, 2021. On April 5, 2021, counsel for
appellant Jonathan Deckel appeared at the hearing and, at counsel’s request,
the court continued the matter to April 8, 2021.
On April 7, 2021, Ami submitted a declaration stating that he signed
the settlement agreement at “one of [the] weakest time[s] of [his] life”
because he was under “stress and pressure” from caring for his dying wife.
He declared that he signed the agreement because he wanted the matter “to
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be over” and “wanted PEACE.” 3 At the end of his declaration, Ami added
that he “need[ed] to mention” that he was no longer the 50 percent owner of
the Property and had “gifted . . . the ownership of the properties to [his] three
children . . . as of October 2020.” Ami added that “[t]hey should now have a
chance to be heard and make decision[s] regarding the properties” and that
he “should be release[d] of [his] obligation regarding the Settlement
Agreement.”
That same day, on April 7, 2021, respondent filed evidentiary objections
to Ami’s declaration stating that Ami’s claim that he lacked the capacity to
enter into the settlement agreement was “simply a delay tactic” given that
Ami and his counsel had had 13 months to argue the point, but had not.
Respondent further noted that Ami apparently “did have capacity to sign
[his] declaration, the alleged deed purporting to transfer the subject property,
and hundreds of checks over the last 13 months while performing the
settlement agreement.” With regard to Ami’s purported transfer of his
interest in the Property, respondent stated that “[d]espite countless requests
to provide the transfer documents that allegedly transfer [Ami’s] interest in
the property, [respondent] has not seen such documents.”
On April 8, 2021, the trial court granted respondent’s ex parte
application to enforce the settlement, and it entered the stipulated judgment
for sale by partition and the appointment of the referee. That same day, the
3 Along with his declaration, Ami included two letters from physicians
(one who treated his wife and another who treated Ami for cardiac issues)
stating that Ami had been under emotional stress the preceding few years
(and, in particular, in recent months), due to his wife’s illness and her
passing. The letters were dated April 13, 2020 and April 30, 2020, and
appear to have been previously submitted by Ami in response to allegations
by Weinsaft that Ami was violating the settlement agreement by disbursing
unauthorized funds from the Property’s rental income.
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referee filed his “Oath of Referee” with the court, acknowledging his
appointment in the instant action, his obligations and duties, and his lack of
any conflicts of interests in the matter.
II. Appellants’ Motion to Intervene or Substitute in as Defendants
On April 23, 2021, appellants filed a motion to: (1) intervene or
substitute in as defendants; (2) cancel, rescind and void the March 2020
settlement agreement; (3) set aside and vacate the April 8, 2021 judgment;
and (4) relieve the referee.
Appellants argued that in light of Ami’s transfer of his entire interest
in the Property, appellants were entitled to intervene or substitute in as
defendants in the action. Appellants observed that “while a judgment has
been entered, there would be additional actions by the Court regarding the
approval of actions and fees from the Referee and a sale of the Property.”
Regarding the remaining three arguments in the motion—in which
appellants challenged the prior settlement agreement, stipulated judgment,
and appointment of referee—appellants argued that their father, Ami, lacked
the capacity to enter into the settlement agreement and that his consent was
obtained by undue influence exerted by Weinsaft and his attorney.
Appellants also complained about the referee’s conduct since taking over
management of the Property.
On May 25, 2021, the trial court denied appellants’ motion in its
entirety. Regarding the request for intervention or substitution, the court
found the request untimely. The court stated that “[g]enerally, intervention
is not permitted post-judgment.” Further, it noted that appellants “made no
effort to intervene until several months after they had acquired their
respective interests.” The court further observed that “[s]ince the claimed
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November 2020 transfer of his interest, Ami Deckel has remained as
Defendant, and through his counsel has continued to participate in this
case.”4 The court proceeded to address the remaining issues, “[f]or
completeness,” and found that appellants had not provided adequate grounds
to set aside the settlement or judgment, or to remove the referee.
Appellants timely appealed the court’s May 25, 2021 order.5
DISCUSSION
I. Appellants’ Intervention Motion Was Properly Denied as Untimely
A. Relevant Legal Principles and Standards of Review
The right to mandatory intervention6 under section 387 is triggered by
a “timely application” and a showing that the proposed intervenor has (1) an
4 Appellants’ motion to augment the record with a certified copy of the
trial court’s May 25, 2021 order is granted. This court’s November 22, 2022
order to show cause as to why the matter should not be dismissed for failure
to provide an adequate record is hereby discharged.
5 The denial of a motion to intervene is an appealable order. (Bowles v.
Superior Court (1955) 44 Cal.2d 574, 582; Noya v. A.W. Coulter Trucking
(2006) 143 Cal.App.4th 838, 841 (Noya).)
6 “Intervention is mandatory (as of right) or permissive.” (Hodge v.
Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547.) We address
only the denial of the request for mandatory intervention, because appellants
do not contend on appeal that they were also entitled to permissive
intervention. Likewise, on appeal they do not argue that the court should
have granted their request for substitution under section 368.5. (See Orange
County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14
Cal.App.5th 343, 383 [“‘When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to authority, an
appellate court treat[s] the point as waived’”].)
Appellants’ briefing on appeal cites to various other statutes with scant
analysis (e.g., §§ 389 [general joinder statute]; 872.510 and 872.550 [joinder
in partition actions]) to support their position that they should be allowed to
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unconditional right to intervene granted by law; or (2) “an interest relating to
the property or transaction that is the subject of the action [when] that
person is so situated that the disposition of the action may impair or impede
that person’s ability to protect that interest, unless that person’s interest is
adequately represented by one or more of the existing parties.” (§ 387, subd.
(d)(1)(B).)7 In light of the statutory timeliness requirement, “a party may
assert that it holds an unconditional right to intervene, [but] that right is
conditioned on a court’s initial determination that the application to
intervene is timely.” (Carlsbad Police Officers Assn. v. City of Carlsbad
(2020) 49 Cal.App.5th 135, 148.)
The standard of review for mandatory intervention is unsettled—either
the abuse of discretion or the de novo standard applies. (Siena Court
Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1425.)
However, the threshold determination regarding the timeliness of
intervention is reviewed for an abuse of discretion. (Crestwood Behavioral
belatedly enter the case. As appellants failed to raise these issues in their
motion to intervene in the trial court, we decline to address them here. (Oiye
v. Fox (2012) 211 Cal.App.4th 1036, 1065 [“[T]he arguments available to
defendant on appeal are limited by what he [or she] argued in the trial
court”].)
7 Citing subdivision (c) of section 387, respondent asserts that
“[a]ppellants did not follow the proper procedures by failing to include a
proposed answer-in intervention with their motion.” (§ 387(c) [“The petition
shall include a copy of the proposed complaint in intervention or answer in
intervention and set forth the grounds upon which intervention rests”].)
However, appellants, in their notice of motion stated that “they would join or
adopt the answer previously on file in this case” and subsequently - in reply
to respondent’s assertion of inadequacy on this point - prepared and
submitted a proposed answer containing the same text as that of the original
defendants.
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Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 574 (Crestwood).) Under the
latter standard, we give “abundant deference to the trial court’s rulings”
(People v. Jackson (2005) 128 Cal.App.4th 1009, 1018), and will not disturb
the trial court’s exercise of discretion unless it was exercised in an arbitrary,
capricious, or patently absurd manner resulting in a manifest miscarriage of
justice (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434).
B. Analysis
“[I]t is the general rule that a right to intervene should be asserted
within a reasonable time and that the intervener must not be guilty of an
unreasonable delay after knowledge of the suit. [Citations.]” (Allen v.
California Water & Tel. Co. (1947) 31 Cal.2d 104, 108.) In the context of
intervention, “‘[t]imeliness is determined by the totality of the circumstances
facing would-be intervenors, with a focus on three primary factors: “(1) the
stage of the proceeding at which an applicant seeks to intervene; (2) the
prejudice to other parties; and (3) the reason for the delay.’” [Citation.]”
(Crestwood, supra, 70 Cal.App.5th at p. 574.) Applying this criteria, we
discern no abuse of discretion by the court in denying appellants’ motion to
intervene as untimely.
Appellants contend that the trial court applied an outdated legal
standard in stating that “[g]enerally, intervention is not permitted post-
judgment.” The trial court relied on Morton Regent Enterprises, Inc. v.
Leadtec California, Inc. (1977) 74 Cal.App.3d 842 (Morton), which held “the
general rule is that intervention is not permitted after judgment.” (Id. at p.
846.) At the time Morton was decided, section 387 limited intervention to
“before trial.” However, section 387 was amended in 1977 to allow
intervention “[u]pon [a] timely application.” (See Mallick v. Superior Court
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(1979) 89 Cal.App.3d 434, 437 [explaining statutory change effected by 1977
amendment]; 8 Witkin, Cal. Procedure (6th ed. 2021) Enforcement of
Judgment, § 232, p. 250.) “The fact that section 387 allows for a ‘timely’
application means that intervention after a judgment is possible.”
(Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267.)
However, even though intervention is sometimes appropriate after a
judgment, “the stage of the proceeding at which an applicant seeks to
intervene” is still an important factor in determining if a motion for
intervention is timely. (Crestwood, supra, 70 Cal.App.5th at p. 574 [listing
this as first factor in timeliness analysis]; see e.g., Noya, supra, 143
Cal.App.4th at pp. 842–843 [affirming denial of intervention based on
untimeliness where motion was made two months after settlement]; see also
Lofton v. Wells Fargo Home Mortgage (2018) 27 Cal.App.5th 1001, 1012 [no
abuse of discretion in finding intervention motion untimely where motion was
sought post-settlement and judgment].) The trial court did not deny the
motion to intervene solely because the motion was brought post-judgment.
Rather, it further relied upon the fact that appellants “made no effort to
intervene until several months after they had acquired their respective
interests” in the Property. That appellants moved to intervene 15 days after
the stipulated partition judgment was entered, 200 days after appellants
received their interest in the Property, and more than 400 days after the
entire case was settled and dismissed weighs in favor of finding untimeliness.
As to the “prejudice” analysis, appellants contend respondent would
suffer none if they were allowed to intervene, as the “formal partition process
had not started yet.” However, according to a report submitted by the
referee, prior to appellants’ intervention request, the referee had performed
significant work in taking over management of the Property and preparing
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for sale, including hiring a property manager, writing to the tenants, securing
a trust account to hold funds, inspecting vacant units, interviewing a broker,
and meeting with the respective parties and counsel. Moreover, appellants’
contention that “[t]here was no bid or offer for sale in hand” for the Property
fails to acknowledge that multiple offers on the Property had been made in
the year preceding the intervention motion—including offers that came in
after appellants obtained their interest in the Property. Appellants’ belated
attempt to enter into the proceedings jeopardized the settlement and the
partition proceedings long since agreed upon by the parties. (See Noya,
supra, 143 Cal.App.4th at p. 842 [post-settlement motion to intervene was
untimely due to potential to “delay or impede the resolution reached by [the]
parties” and interject additional issues into litigation].)
Finally, appellants offer no cogent reason for failing to intervene earlier
in the action. (See Northern Cal. Psychiatric Society v. City of Berkeley (1986)
178 Cal.App.3d 90, 109 [denial of intervention found proper where there “was
no excuse for the tardiness of [the] application for intervention”].) Instead,
appellants assert that they “had no reason to move to intervene while the
case was dismissed” and until it was “revived” in April 2021—“when
Respondent moved to enforce the Settlement Agreement and to have the
stipulated judgment entered.” However, it was foreseeable prior to April
2021 that respondent would move for enforcement of the settlement
agreement, given the term providing for this “phase two” procedure in the
event the Property had not sold by April 2021. Appellants do not claim
ignorance of the status of the proceedings. In a declaration filed by Jonathan
Deckel, he stated he had “spoken with, and worked with my father regularly
throughout the time that this case has been ongoing,” and he was “very
familiar with the Property, as [he] ha[s] been a resident and assisting in
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managing the property since 2004.” Moreover, once appellants had notice of
the impending motion to enforce the settlement that was filed on February
25, 2021, they failed to file a request for intervention until April 23, 2021,
more than two weeks after the court granted the motion and entered the
stipulated judgment. This delay is unexplained.
Appellants also suggest that, given that the case had been dismissed,
the court would not have permitted them to intervene prior to the date
respondents brought their motion to enforce the settlement agreement. They
admittedly have no authority for that proposition.8 The trial court had
retained jurisdiction under section 664.6, and the settlement agreement
contemplated a “second phase” after the dismissal that would involve further
court proceedings. Appellants’ unsupported contention that the trial court
“likely” would not have granted their motion if it had been filed earlier is not
a legitimate explanation for their delay in seeking intervention. Further, this
contention is undercut by the fact that the trial court specifically faulted
appellants for making “no effort to intervene until several months after they
had acquired their respective interests.”
In sum, the court did not abuse its discretion in finding appellants did
not meet the threshold requirement of filing a timely intervention request.
Because the motion was untimely, we need not address the merits of the
motion for intervention, and conclude it was properly denied.
8 O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, to which they
cite, does not support the contention as the court there did not have
continuing jurisdiction under section 664.6 to enforce a settlement agreement
following dismissal.
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II. Appellants’ Remaining Challenges Fail for Lack of Standing
In light of our conclusion that the trial court committed no error in
denying appellants’ intervention request, appellants lack standing to request
the court to set aside the settlement agreement, stipulated judgment, and
appointment of the referee. (See Chase v. Superior Court (1962) 210
Cal.App.2d 872, 876 [one who is not a party to an action may not “make a
motion therein” nor file “any character of pleading therein,” internal
quotation marks omitted]; Beshara v. Goldberg (1963) 221 Cal.App.2d 392,
395 [“It is elementary that a stranger to a proceeding has no standing to
interpose a motion” and that one who desires to do so must be an existing
party to the action “or some other interested party who has been permitted to
intervene”].)
Appellants contend, in cursory fashion, that they “may attack the
Settlement Agreement” because “[a] third-party-beneficiary or assignee may
challenge a contract or seek its reformation.” However, even if this were
generally true, a contention we need not reach, appellants have not
demonstrated they are either third-party beneficiaries or assignees of the
settlement agreement. We cannot conclude they are third-party beneficiaries
where they had no interest in the Property at the time of the settlement
agreement, and they presented no evidence Ami intended at the time to
transfer his interest to them in the future. (See Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022 [“‘The test for
determining whether a contract was made for the benefit of a third person is
whether an intent to benefit a third person appears from the terms of the
contract’”].) Nor have they shown any evidence that Ami assigned his rights
and obligations under the settlement agreement to them. (Cockerell v. Title
Ins. & Trust Co. (1954) 42 Cal. 2d 284, 292 [“The burden of proving an
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assignment falls upon the party asserting rights thereunder” to show the
assignment with “clear and positive” evidence].) Indeed, appellants
acknowledge their failure to do so, and simply assert that if they “would need
to prove assignment of the Settlement Agreement to them by Ami Deckel,
that should be addressed upon remand.” However, appellants’ failure to raise
this issue in the trial court in the first instance forfeits the issue on appellate
review. (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1065.)
DISPOSITION
The May 25, 2021 order denying appellants’ motion for, inter alia,
intervention is affirmed.
Respondent is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STONE, J.*
We concur:
COLLINS, Acting P. J.
CURREY, J.
*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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