Depew v. Hazan CA2/2

Filed 11/10/15 Depew v. Hazan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
PATRICIA DEPEW, B250704
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC460997)
v.
LYDIE HAZAN et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
David L. Minning, Judge. Affirmed.
Law Offices of Benjamin G. Ramm and Benjamin G. Ramm for Plaintiff and
Appellant.
Law Offices of Jennifer F. Novak and Jennifer F. Novak for Defendants and
Respondents.
______________________
For years, appellant Patricia Depew (Depew) and Al Dominguez (Dominguez)
rented an apartment located at 712-1/2 Stanley Street (the property). While during that
time, Depew and Dominguez’s landlords changed, there was one constant—ongoing
litigation over the terms of their lease. The Charles and Michelle Hazan Corporation (the
corporation), their most recent landlord, was no exception. This appeal stems from
Depew’s refusal to comply with the terms of a settlement agreement reached between the
parties and the subsequent trial court order granting a motion to enforce the settlement
agreement pursuant to Code of Civil Procedure section 664.6.1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The corporation purchased the property at a January 2011 trustee’s sale. At the
time, Depew was a tenant of the property and had been, under the terms of a lease, since
1989.
In May 2011, Depew filed a declaratory relief action against the corporation,
Lydie Hazan (Hazan), and other individuals (Super. Ct. L.A. County, case
No. BC460997).2 According to the complaint, Depew pays “‘below market’” rent.
Depew also alleges that Hazan has filed multiple unlawful detainer actions against
Depew on the grounds that Depew has violated the terms of the lease by, inter alia, using
her apartment as a home office and owning certain pets.
At some point, Depew dismissed the individual defendants, including Hazan, from
the lawsuit and the action proceeded against the corporation alone.
As the case neared trial, a settlement was reached between Depew, on the one
hand, and Hazan and the corporation, on the other hand (Hazan and the corporation
collectively are referred to, both in the settlement agreement and in this opinion, as
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2 This was not the first litigation between these tenants and landlords. There were at
least two unlawful detainer actions.
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defendants). As is relevant to the issues in this appeal, the parties agreed to the
following: (1) Defendants would file an “Ellis removal”3 to remove the property from
the rental market by April 2, 2012. (2) “In accordance with the terms of the Los Angeles
Municipal Code . . . regarding Ellis removals within the City of Los Angeles,” defendants
would pay a relocation sum in the amount of $18,500, “payable to the names of
. . . Depew and . . . Dominguez.” (3) Depew and Dominguez would have one year to
vacate the premises. (4) If defendants opted to proceed with the Ellis Act and complied
with its terms, Depew and Dominguez would vacate the property without challenging the
validity of the Ellis removal. (5) The trial court would retain jurisdiction to enforce the
settlement agreement pursuant to section 664.6.
Notably, although Dominguez was never a named plaintiff in the litigation and
Hazan had been dismissed, Hazan expressly was a party to the settlement agreement and
both Hazan and Dominguez were signatories to it.
The corporation proceeded with the Ellis removal. On April 2, 2012, it filed a
notice of intent to withdraw units from rental housing use with the Los Angeles Housing
Department, stating an intent to convert the units to condominium use. Hazan served the
notice, along with the notice to quit, on Depew.
Then, the corporation opened an escrow account and deposited $51,200, the full
amount of required relocation benefits for all building tenants under the Ellis Act.
Because of unrelated bank issues, it took until May 30, 2012 (10 months before Depew
was to vacate the property) for the escrow account to be fully funded.
3 The Ellis Act (Gov. Code, § 7060 et seq.) “provides that no statute, ordinance,
regulation, or administrative action ‘shall . . . compel the owner of any residential real
property to offer, or continue to offer, accommodations in the property for rent or lease.’
(Gov. Code, § 7060, subd. (a).) A landlord who complies with the Ellis Act may
therefore go out of the residential rental business by withdrawing the rental property from
the market. [Citation.]” (Drouet v. Superior Court (2003) 31 Cal.4th 583, 587; see also
L.A. Mun. Code, § 151.22–151.28.) There are various requirements for landlords under
the Ellis Act and the Los Angeles Municipal Code, including certain notice requirements
and relocation payments.
3
The corporation selected Lee Sacks to serve as its escrow officer and provided
instructions listing the property’s tenants and their respective relocation fund amounts.
The instructions provided for a total of $18,300 to be paid, pro rata, to Depew and
Dominguez.
By January 30, 2013, Depew was in contact with Mr. Sacks, seeking her
relocation benefits. Before she was scheduled to move out of her unit, she had received
$9,150. Although Dominguez was entitled to receive relocation benefits, there is no
evidence in the record that he ever requested them from Mr. Sacks.
Rather than vacate the premises when the one-year lapsed, Depew tried to extend
her tenancy by another four months. When the corporation refused, she filed a new
declaratory relief action (L.A. Super. Ct. case No. BC504491).
In response, Hazan and the corporation filed an ex parte application in case
No. BC460997 to enforce the settlement agreement. The trial court set an evidentiary
hearing. Following two weeks of evidence and argument, the trial court granted the ex
parte application to enforce the settlement agreement. It found that Hazan and the
corporation had complied with and performed their obligations under the settlement
agreement and that Depew and Dominguez had breached their obligations under the
settlement agreement. It ordered Depew and Dominguez to vacate the property. And, it
ordered “Plaintiffs” to pay defendants’ attorney fees.
Judgment was entered June 3, 2013. The judgment identifies Hazan and the
corporation as defendants and Depew and Dominguez as plaintiffs. It then finds that
defendants complied with and performed their obligations under the settlement agreement
and that plaintiffs breached their obligations under the settlement agreement. It ordered
plaintiffs to vacate the property and to pay defendants’ attorney fees.
Later, defendants filed a motion for attorney fees. Depew opposed defendants’
motion, arguing that she was the prevailing party; alternatively, the amount of fees should
be reduced. She did not argue that Hazan was not entitled to attorney fees because she
was not a party to the litigation. Following argument, the trial court determined that
Depew owed Hazan $11,500 as attorney fees.
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Depew’s timely appeal ensued.
DISCUSSION
I. The trial court properly enforced the settlement agreement
Depew argues that the trial court lacked jurisdiction to enforce the settlement
agreement because (1) two parties to the settlement agreement (Hazan and Dominguez)
were not parties to case No. BC460997,4 and (2) the trial court’s use of ex parte
proceedings was prejudicial against her.
First, we conclude that Depew has forfeited any challenge to the trial court’s
jurisdiction to enforce the settlement agreement. “As a general rule, a claim of error will
be deemed to have been forfeited when a party fails to bring the error to the trial court’s
attention by timely motion or objection. [Citations.] ‘“‘“The purpose of the general
doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the
attention of the trial court, so that they may be corrected or avoided and a fair trial had
. . . .”’ [Citation.] “‘No procedural principle is more familiar to this Court than that a
constitutional right” or a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.” . . . ’ [Citation.] . . . [I]t is within this court’s discretion to
make an exception to this rule when the issue on appeal relates to a question of law only,
or where the public interest or public policy is involved.” (Avalos v. Perez (2011) 196
Cal.App.4th 773, 776–777; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,
§ 400, p. 458; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150
Cal.App.4th 683, 712.)
Despite being served with the ex parte papers and participating in a lengthy
evidentiary hearing, Depew never objected to the trial court’s authority to enforce the
settlement agreement. In fact, according to the settlement agreement, Depew, Hazan, and
the corporation wanted to settle the pending litigation. While he was not a party to the
4 Section 664.6 provides, in relevant part: “If parties to pending litigation stipulate
. . . for settlement of the case, . . . the court, upon motion, may enter judgment pursuant to
the terms of the settlement.”
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pending litigation, Dominguez also was a willing participant to the settlement agreement.
By signing the document, all four parties agreed to all of its terms. (Roldan v. Callahan
& Blaine (2013) 219 Cal.Ap.4th 87, 93–94.) Significantly, they agreed that the trial court
would retain the authority to enforce the settlement agreement. Under these
circumstances, we readily find that Depew forfeited any belated challenge to the trial
court’s jurisdiction to enforce the settlement agreement. (See, e.g., People v. Tindall
(2000) 24 Cal.4th 767, 776, fn. 6.)
In reaching this decision, we decline to exercise our discretion to consider this
issue for the first time on appeal. Depew’s argument notwithstanding, the issue is more
than just a question of law. Rather, as set forth above, there are key factual questions,
such as whether the parties intended to be bound by the procedure set forth in section
664.6. Public interest is not at stake. And, although not briefed by the parties, it seems
that public policy tips in favor of allowing enforcement of the settlement agreement.
After all, it would be a waste of the parties’ resources and judicial resources to allow only
a partial resolution of this ongoing landlord-tenant battle among the same persons.
Depew posits that strict compliance with section 664.6 is required before the trial
court may grant a motion to enforce a settlement agreement. But, the cases she cites are
readily distinguishable. (See, e.g., Tokio Marine & Fire Ins. Corp. v. Western Pacific
Roofing Corp. (1999) 75 Cal.App.4th 110, 113 [holding that an insurer could not be
named as an additional judgment debtor when it was not a party to the action and there
was no basis on which it could summarily be named as a judgment debtor]; Kirby v.
Southern Cal. Edison Co. (2000) 78 Cal.App.4th 840, 845 [section 664.6 is a means to
enforce settlement agreements entered into after litigation has been filed]; Housing
Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1111 [parties to the
settlement agreement were not parties to pending litigation]; Critzer v. Enos (2010) 187
Cal.App.4th 1242, 1257 [settlements, in order to be enforceable under section 646.6,
require the personal consent of all parties]; Sully-Miller Contracting Co. v.
Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37 [same].) Depew
directs us to no case that holds that section 664.6 may not be used when nonparties are
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signatories alongside parties to pending litigation to a settlement agreement that
specifically references section 664.6.
Second, Depew has not demonstrated that the trial court’s use of ex parte
proceedings was unfair or otherwise prejudicial to her. She offers no supporting legal
authority. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.)
And she has failed to show how more time would have aided her defense. In short,
Depew neglected to demonstrate prejudice. (Cal. Const., art. VI, § 13.)
II. Defendants did not breach the settlement agreement
Depew argues that the judgment must be reversed because defendants breached
the settlement agreement by failing to pay the full amount of monies that they owed and
by using an escrow account.
To answer this question, we are called upon to interpret the settlement agreement.
We do so de novo under settled rules of contract interpretation. (Ameron Internat. Corp.
v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1377.) “‘The
fundamental rules of contract interpretation are based on the premise that the
interpretation of a contract must give effect to the “mutual intention” of the parties.
“Under statutory rules of contract interpretation, the mutual intention of the parties at the
time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to
be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.)
The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and
popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is
given to them by usage’ (id., § 1644), controls judicial interpretation. (Id., § 1638.)”
[Citations.]’” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 647–648.)
“When parties dispute the meaning of contractual language, the trial court must
provisionally receive extrinsic evidence offered by the parties and determine whether it
reveals an ambiguity, i.e., the language is reasonably susceptible to more than one
possible meaning. If there is an ambiguity, the extrinsic evidence is admitted to aid the
interpretative process. ‘When there is no material conflict in the extrinsic evidence, the
trial court interprets the contract as a matter of law. [Citations.] . . . If, however, there is a
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conflict in the extrinsic evidence, the factual conflict is to be resolved by the [factfinder].
[Citations.]’ [Citation.]” (Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP (2011) 201 Cal.App.4th 368, 376–377; see also Supervalu, Inc. v.
Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 72–73.)
Here, the settlement agreement is ambiguous. Article 2 provides, in relevant part:
“In accordance with the terms of the Los Angles Municipal Code . . . regarding Ellis
removals . . . , Defendants shall pay to Plaintiff the sum of $18,500 in relocation fee in
accordance with the now-current terms and conditions of the Los Angeles Municipal
Code regarding Ellis removals of properties in the City of Los Angeles.” But there is a
problem: Applying the express terms of the Ellis Act, Depew and Dominguez were
entitled only to $18,300. In light of this inconsistency, the trial court was forced to turn
to the parties’ extrinsic evidence to determine what they intended. But the parties’
appellate briefs do not direct us to any evidence of the parties’ intent beyond what is
contained in the settlement agreement itself (and the settlement agreement expressly
contemplates the parties’ intent to comply with the Ellis Act). Given the absence of
extrinsic evidence, Depew has not met her burden on appeal.
Depew also objects to defendants’ use of an escrow account. Again, there is no
indication that she raised this argument below, thereby forfeiting it on appeal. Setting
that procedural obstacle aside, the Rent Adjustment Commission Regulations issued by
the Los Angeles Housing Department allow for the use of escrow accounts.
III. The trial court properly entered a judgment for possession
Depew asserts that the trial court erred by entering a judgment for possession. We
see no error.
First, Depew claims that defendants provided insufficient notice of their intent to
seek possession because their ex parte application only made a generic request to enforce
the settlement agreement; their ex parte application did not mention a writ of possession.
She is mistaken. Defendants’ ex parte application specifically requests “an order
pursuant to [section] 664.6, entering judgment enforcing the terms of the [settlement
agreement] as follows: Defendants are to retain possession of the [property]
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immediately.” This language was sufficiently clear to put Depew on notice of the relief
sought.
Second, Depew claims that the trial court had no right to evict Dominguez.
Dominguez is not an appellant and Depew lacks standing to assert arguments on his
behalf. She has not shown how the issue of his alleged “mistreatment . . . affected her
interests.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 33, p. 94.)
Finally, the trial court had the authority to enter judgment for possession pursuant
to the terms of the settlement agreement. Defendants instituted an Ellis Act removal, as
contemplated by the settlement agreement. Depew and Dominguez agreed that they
would vacate the premises if defendants instituted an Ellis Act removal and otherwise
complied with the terms of the settlement agreement. As set forth above, that is exactly
what occurred. Under these circumstances, the trial court had the power to enter a
judgment for possession.
Depew’s reliance upon the Los Angeles Rent Stabilization Ordinance is
misplaced. Landlords are permitted to evict tenants pursuant to the terms of the Ellis Act.
(L.A. Mun. Code, § 151.09 [titled Evictions].)
IV. Depew did not meet her burden in demonstrating that defendants failed to comply
with the Ellis Act
Depew argues that the trial court erred by construing the settlement in favor of a
forfeiture because defendants failed to comply with the Ellis Act. First, she asserts that
defendants neglected their obligation to remove all units from the rental market. But, she
offers no evidence that any units were withheld from removal from the rental market.
Second, while there was a slight delay when the monies were deposited in the escrow
account, that was the result of circumstances beyond defendants’ control and did not
impact Depew receiving her relocation funds; she shows no prejudice. Last, her
contention that defendants failed to exhaust their administrative remedies is unsupported
by legal authority.
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V. Attorney fees
Finally, Depew contends that Hazan had no right to recover attorney fees because,
after her dismissal, she no longer was a party to the action. Depew’s argument fails on
procedural grounds. She did not raise this argument below. (Avalos v. Perez, supra, 196
Cal.App.4th at pp. 776–777; In re Marriage of Broderick (1989) 209 Cal.App.3d 489,
501 [permitting a party to adopt a new theory on appeal would be unfair to the trial court
and the opposing litigant].) Regardless, even if we were to reach the merits of this
argument, we would reject it. As set forth above, Hazan was a willing participant and
signatory to the settlement agreement and all of its terms. The settlement agreement
provides for the prevailing party to recoup his or her attorney fees. The trial court’s
judgment awarded attorney fees to “defendants,” and not just the corporation. It follows
that Hazan is entitled to an award of attorney fees.5
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
BOREN
______________________________, J.
HOFFSTADT
5 It is curious that while both Hazan and the corporation moved for attorney fees,
the trial court’s order (prepared by defendants’ counsel) only awarded attorney fees to
Hazan. But Depew did not meet her burden on appeal in demonstrating that this was
error.
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