Summit Bridge Nat. Investments IV v. Panossian CA2/2 ( 2021 )

Filed 8/4/21 Summit Bridge Nat. Investments IV v. Panossian CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SUMMIT BRIDGE NATIONAL B310067
INVESTMENTS IV, LLC,
(Los Angeles County
Plaintiff, Cross-defendant Super. Ct. No. EC065055)
and Respondent,
v.
MEGUERDITCH PANOSSIAN,
Defendant, Cross-
complainant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Dismissed.
The Jamison Law Firm, Guy E. Jamison and Chelsea M.
Clayton for Defendant, Cross-complainant and Appellant.
Parker, Milliken, Clark, O’Hara & Samuelian, Thomas E.
Shuck and Alan Weinfeld for Plaintiff, Cross-defendant and
Respondent.
Defendant, cross-complainant, and appellant Meguerditch
Panossian (Panossian or Guarantor) appeals from the stipulated
judgment entered in favor of plaintiff, cross-defendant, and
respondent Summit Bridge National Investments IV, LLC
(Summit Bridge or Lender). Panossian expressly stipulated and
agreed that the stipulated judgment “shall not be appealable.”
We therefore dismiss the appeal. (Harrington-Wisely v. State of
California (2007) 156 Cal.App.4th 1488, 1495.)
BACKGROUND
The loans, guaranty, and default
Panossian and Idak Avakian were the sole shareholders of
GentleCare Transport, Inc. (GentleCare). Panossian and
Avakian personally guaranteed loans in the total principal
amount of $1.83 million made to GentleCare by JPMorgan Chase
Bank, N.A. (Chase), in 2013 and 2014 (the loans). Chase
assigned the loans to Summit Bridge on December 24, 2015.
In mid-2014, Panossian and Avakian sold GentleCare to
Artine Safarian and Robert Spiro. Safarian and Spiro formed a
successor entity named MedCoast and defaulted on the loans.
On May 4, 2016, Summit Bridge sued GentleCare,
Panossian and Avakian for breach of the loan agreements and
guarantees. Panossian filed a cross-complaint against
GentleCare, MedCoast, Safarian, Spiro, and Chase, asserting
causes of action for fraud and negligent representation against
Safarian and Spiro and contractual indemnity against
GentleCare.
The settlement agreement
In October 2018, Summit Bridge and Panossian executed a
settlement agreement and a stipulation for entry of judgment.
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The settlement agreement required Panossian to pay Summit
Bridge, by April 24, 2020, (1) $123,000 from the sale or
refinancing of certain real properties, and (2) “50% of the Net
Proceeds recovered from Guarantor’s Cross-Complaint, with
Lender’s total recovery from the sale of the Properties and from
Guarantor’s Cross-Complaint capped at $448,000.00.” The
settlement agreement defined “Net Proceeds” as “any and all
amounts recovered from Guarantor’s Cross-Complaint by trial,
settlement, or any other means, minus contingency fees paid to
counsel for Guarantor.”
The settlement agreement further required Panossian to
“continue to prosecute Guarantor’s Cross-Complaint with due
diligence and with dispatch, unless and until Guarantor
determines, by an objective good faith standard, and with
Lender’s concurrence, that continued prosecution of Guarantor’s
Cross-Complaint would generate no more than a de minimus
financial realization.” Panossian’s obligation to prosecute his
cross-complaint continued until March 1, 2020.
The settlement agreement entitled Summit Bridge to enter
a stipulated judgment for the full amount of the debt if Panossian
defaulted on any condition, covenant, or obligation set forth in
the agreement:
“3. Payment by Guarantor. The Parties agree that,
in consideration of settlement of the Litigation,
Guarantor shall timely perform each and every
condition set forth in this Agreement. Should
Guarantor fail to timely perform each and every
condition, covenant and obligation set forth in this
Agreement, Lender shall be released from its
agreement to accept an amount less than full
payment of the Total Indebtedness in satisfaction of
the Loan Documents and may exercise any and all
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rights and remedies provided under this Agreement.
[¶] . . . [¶]
“5. Stipulation for Judgment in Full Amount Upon
Default. The Parties have further stipulated and
agreed, as evidenced by Guarantor’s signature on the
concurrently-executed Judgment Stipulation, that
should Guarantor default under the terms of this
Agreement, judgment against Guarantor may
immediately be entered by the Court as follows:
“a. In favor of Lender and against Guarantor
in the amount of the Total Indebtedness, plus costs,
fees and interest accruing at the legal rate of 10% per
annum from the Effective Date of this Agreement, to
the date of entry of judgment, less any amounts
recovered by Lender, if any, and less any payments
made by Guarantor under this Agreement up to the
time of the Event of Default (as defined below)
resulting in the filing of the Judgment
Stipulation . . . .”
Panossian expressly agreed that the stipulated judgment, if
entered, would not be appealable: “Guarantor stipulates and
agrees that the judgment to be entered pursuant to the Judgment
Stipulation shall not be appealable.”
Panossian’s motion to enforce settlement and Summit
Bridge’s request for entry of judgment
On April 15, 2020, Panossian paid Summit Bridge
$123,0000, which Summit Bridge received under protest. On
April 22, 2020, Summit Bridge sent a notice of default to
Panossian. On April 20, 2020, Panossian filed a motion to
enforce the settlement under Code of Civil Procedure section
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664.6,1 arguing he fulfilled all obligations under the settlement
agreement. On June 4, 2020, Summit Bridge filed a declaration
from its counsel requesting entry of the stipulated judgment,
based on Panossian’s failure to prosecute his cross-complaint
“with due diligence and with dispatch,” an event of default under
the settlement agreement.
On September 4, 2020, the trial court held a preliminary
hearing on Panossian’s section 664.6 motion. The court found
that Panossian failed to provide evidence that he complied with
his obligation to prosecute his cross-complaint “with due diligence
and with dispatch”:
“[I]n addressing the parties’ competing claims for
relief, the Court must ultimately determine whether
Panossian acted ‘with due diligence and dispatch’ in
prosecuting his cross-complaint between October 24,
2018 (the effective date of the Settlement Agreement)
and March 1, 2020 (the deadline for attempted
recovery set forth in ¶ 2.1(b)). On this record, the
Court cannot do so. Merely citing a list of
occurrences and the fact that one of the cross-
defendants (MedCoast Med Services Inc.) is in
bankruptcy, Panossian makes the conclusory
assertion that he ‘diligently prosecuted [his] Cross-
Complaint from October 2018 through April 2020.”
The trial court gave Panossian an additional five weeks to
obtain the necessary evidence and continued the hearing on the
motion to enforce settlement and on Summit Bridge’s request for
entry of judgment to November 6, 2020.
1 All statutory references hereafter are to the Code of Civil
Procedure.
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November 6, 2020 hearing and trial court ruling
At the November 6, 2020 hearing, the trial court heard
testimony from Panossian’s counsel and his bankruptcy attorney.
Summit Bridge submitted declarations from its counsel.
The trial court issued a detailed ruling on November 10,
2020, denying Panossian’s section 664.6 motion to enforce
settlement, finding that he did not prosecute the cross-complaint
“with due diligence and with dispatch” between October 24, 2018,
and March 1, 2020. The trial court granted Summit Bridge’s
request for entry of stipulated judgment, which was entered on
December 16, 2020.
DISCUSSION
Summit Bridge contends Panossian’s appeal should be
dismissed based on lack of standing because Panossian stipulated
and agreed in both the settlement agreement and the stipulation
for entry of judgment that the stipulated judgment “shall not be
appealable.” Panossian argues that he is not appealing from the
stipulated judgment, but from the order denying his section 664.6
motion to enforce the settlement agreement.
Panossian’s notice of appeal indicates that his appeal is
from a judgment after a court trial, and not from the order
denying his motion to enforce settlement. Panossian expressly
waived the right to appeal the judgment. “‘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.’” (PG&E “San Bruno Fire” Cases (2019) 43
Cal.App.5th 596, 607.) Panossian fails to demonstrate that any
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of these conditions preclude enforcement of his waiver of the right
to appeal. The appeal accordingly must be dismissed. (Ibid.)
Panossian’s purported challenge to the order denying his
section 664.6 motion does not salvage his appeal. The trial
court’s order denying the motion to enforce the settlement is a
nonappealable interlocutory order. (Doran v. Magan (1999) 76
Cal.App.4th 1287, 1292-1294 (Doran).) Panossian cites no
statute that authorizes the appeal of interlocutory section 664.6
orders.
Nonappealable interim orders are reviewable on appeal
from a final judgment. (Doran, supra, 76 Cal.App.4th at
pp. 1292-1294.) Panossian’s notice of appeal indicates that he
appeals from the judgment; however, Panossian expressly waived
his right to do so.
DISPOSITION
The appeal is dismissed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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