Balakhane v. Sakhai CA2/4

Filed 3/23/22 Balakhane v. Sakhai 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PEYMAN BALAKHANE et al., B307271
Plaintiffs, (Los Angeles County
Super. Ct. No. BC531321)
v.
MORIS SAKHAI et al.,
Defendants and Appellants;
NATIONWIDE INSURANCE
COMPANY et al.,
Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Jon R. Takasugi, Judge. Affirmed.
Law Offices of George E. Omoko and George E. Omoko for Defendants
and Appellants.
Grant, Genovese & Baratta, Lance D. Orloff for Respondent
Nationwide Mutual Insurance Company.
Hinshaw & Culbertson, Ray Tamaddon, Travis Wall for Respondent
Northfield Insurance Company.
INTRODUCTION
This is the second appeal arising out of a 2018 settlement agreement
resolving a dispute between defendants and appellants Moris Sakhai, Naziar
Azadegan,1 and California Capital Venture, Inc. (collectively, the Sakhais)
and plaintiffs Peyman Balakhane, Pejman Balakhane, and L.A. Fashion
Hub, Inc. (collectively, the Balakhanes).2 Under the settlement agreement,
entered orally on the record before the trial court, the Sakhais agreed to pay
$750,000 to the Balakhanes. Of that amount, the parties agreed that
$400,000 would be paid by the Sakhais’ insurers, respondents Nationwide
Insurance Company (Nationwide) and Northfield Insurance Company
(Northfield), after the Sakhais executed a liability release. Counsel for the
insurers agreed to these settlement terms on the record. The court retained
jurisdiction to enforce the settlement agreement under Code of Civil
Procedure section 664.6.3
Although the Sakhais did not execute the release as agreed, both they
and respondents made the required payments under the settlement
agreement. The trial court subsequently issued an order granting
Nationwide a liability release pursuant to the settlement agreement. Two
years later, the Sakhais filed a motion seeking to vacate the court’s order
issuing the policy release. They argued that the order was void because
respondents were not parties to the litigation and therefore the court lacked
jurisdiction over them at the time of the settlement. The Sakhais also
challenged the court’s authority to enforce the settlement agreement. The
trial court denied the motion and the Sakhais appealed. We find no error and
affirm.
FACTUAL AND PROCEDURAL HISTORY
I. Litigation and Settlement Agreement
1
The majority of the documents in the record spell Asadegan’s first
name as “Naziar.” However, respondents’ brief states the name as “Nazyar.”
2
The Balakhanes have not appeared in this appeal.
3
All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
The Balakhanes filed a complaint against the Sakhais in December
2013, alleging causes of action for breach of contract, fraud, and related
claims. The Balakhanes alleged that they rented commercial real property
from the Sakhais starting in 2009. In 2011, the parties allegedly entered into
a partnership, in support of which the Sakhais agreed to invest $2 million
and the Balakhanes entered into a three-year lease for a warehouse owned by
Moris Sakhai. The Balakhanes alleged that the Sakhais failed to make the
full investment as promised and failed to provide the Balakhanes with their
share of the profits from the partnership.
Also in December 2013, Moris Sakhai filed a separate unlawful
detainer complaint against the Balakhanes, alleging that the Balakhanes
failed to pay rent on the commercial property he owned. The trial court
consolidated the two cases in April 2014.
The jury trial commenced on January 26, 2018. Following a mid-trial
settlement conference on February 2, 2018, with all parties and their counsel
present, the court announced that the parties had reached a settlement. The
court then asked counsel for the parties to recite the terms of the agreement
for the record. Counsel for the Sakhais began: “The parties have agreed
upon a complete settlement of all claims between and among them, including
all of the cases consolidated before this Court.” He further stated that the
Sakhais agreed to “pay a total settlement amount to the plaintiffs in the
amount of $750,000,” including a payment of $400,000 “by a group of
insurance carriers that will be described separately by the representative,
who is here today.” He explained that the $400,000 was payable 15 days
from February 5, 2018, “on the condition that on [that date] we have a signed
settlement agreement and a complete policy release” signed by the Sakhais.
Counsel for the Balakhanes interjected: “Your honor, we have an open-court
settlement. We don’t need anything in writing. . . . [W]e are in open court.
This is under 664.6.” Counsel for the Sakhais agreed that “this is fully
enforceable under” section 664.6.4 He then explained the additional terms
4
Section 664.6 (a) 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
3
that the Sakhais would pay the remaining $350,000 within 60 days after the
insurance companies’ payment, secured by real property, as well as
provisions for liquidated damages and attorney fees triggered by any breach
of the agreement.
Counsel for respondents Nationwide and Northfield was also present at
the February 2, 2018 hearing. She informed the court that “[i]ncluded as
part of the settlement agreement” was the provision that the insurance
companies’ contribution was contingent upon the Sakhais signing a full
policyholders’ release releasing respondents “of all obligations under the
policies and all possible present and future extra-contractual liabilities in
connection with the claims involved in this complaint.” The court confirmed
with all parties personally that they had heard and agreed to these terms “as
relayed by both the attorneys as well as the individual from the insurance
company.” Counsel for respondents also stated that she accepted the terms
on behalf of Nationwide and Northfield. The court accepted the settlement
agreement and stated that it “will retain jurisdiction under 664.6 to settle the
matter.” The minute order from the hearing also states that the settlement
was made in accordance with section 664.6.
II. Enforcement of Settlement
On February 7, 2018, the Balakhanes filed an ex parte application to
enforce the settlement agreement pursuant to section 664.6, including
recovery of liquidated damages and attorney fees and costs. They argued
that the parties had agreed to the settlement on the record and that the court
retained jurisdiction to enforce the settlement pursuant to section 664.6, but
the Sakhais had breached the agreement by failing to execute the insurance
policy release.
The Sakhais filed an opposition to the ex parte on February 8, 2018,
reiterating in their brief that the parties had entered into an oral settlement
on the record. They argued that the Balakhanes’ request for ex parte relief
was improper and unwarranted, as they were awaiting receipt of a draft
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.”
4
policy release from respondents and the agreement did not require a signed
release by a date certain as the Balakhanes claimed. The trial court set a
hearing date and indicated it would treat the Balakhanes’ ex parte papers as
a motion to enforce the settlement agreement.
On February 28, 2018, Nationwide and Northfield filed a joint notice of
special appearance, including a memorandum of points and authorities
regarding the Balakhane’s motion to enforce the settlement agreement.
Respondents noted that they had agreed to indemnify the Sakhais in the
amount of $400,000 in settlement of the action on the condition that the
Sakhais execute a policyholders’ release related to the claims at issue. They
argued that the court could enforce the agreement under section 664.6,
including the requirement that the Sakhais release respondents from
liability.
The Sakhais retained new counsel on February 28, 2018. They filed an
ex parte application seeking a continuance of the hearing and permission to
file a supplemental opposition. In the application, the Sakhais argued that
the settlement agreement was unconscionable for several reasons, but did not
assert that the settlement was improper because the insurers were not
parties or that the court did not have jurisdiction. They did not object to
respondents’ appearance in their ex parte application or elsewhere. The
court denied the ex parte application.
At the March 5, 2018 hearing on the motion to enforce the settlement,
counsel for both Nationwide and Northfield appeared, with no objection by
the Sakhais. Counsel for the Sakhais argued that the parties contemplated
preparing a written settlement agreement following the oral agreement on
February 2, but that counsel for the Balakhanes refused to consider it. The
court indicated that it was ruling on “step one” regarding the insurance
release, and the parties could then discuss “step two” and bring any issues
before the court regarding interpreting the settlement agreement. Counsel
for Nationwide stated that she wanted to confirm that the policyholders’
release was in effect, and the court responded that the release would be in
force “when the money is paid.”
At the conclusion of the March 5, 2018 hearing, the court adopted its
written tentative ruling as the final order. In its ruling, the court found that
5
the settlement was entered on February 2, 2018 “in open court, and pursuant
to CCP § 664.6,” and included the following terms as relevant here: (1) the
Sakhais were “to execute a Full Policy Release relieving their insurance
company of liability by noon on February 5, 2018”; (2) the Sakhais were to
pay a total settlement amount to the Balakhanes of $750,000, with the first
$400,000 to be paid within 15 days of February 5, “on the condition that the
insurance release was fully executed by that date”; (3) the remaining
$350,000 was to be paid 60 days after the first 15 day deadline; and (4)
liquidated damages, attorney fees and costs would be imposed in the event of
breach of the agreement. Although the Sakhais had not yet executed the
insurance release or issued payment, the court found that the deadline for
execution of the insurance release was not absolute and the Sakhais’
payment obligations “flow from the date of the execution of the full policy
release.” As such, the court concluded that the Sakhais had not breached the
agreement. However, the court granted the motion in part, to “enforce that
part of the agreement granting the carrier a full policy release on the
condition that [respondents] forward the agreed upon proceeds forthwith to
[the Balakhanes]. Once accomplished, the time will commence by which
Defendant Sakhai shall be required to submit his portion of the settlement
proceeds.”
Nationwide subsequently paid its contribution pursuant to the
settlement agreement. Accordingly, on March 14, 2018, the court entered the
following order: “Pursuant to the terms of the oral settlement agreement set
forth before this Court on February 2, 2018 by and between [the Balakhanes]
on the one hand, and [the Sakhais] on the other hand, through their
respective counsel, and the agreement having been orally agreed to by the
parties, and further, that Nationwide . . . has tendered its agreed upon
proceeds to [the Balakhanes] in accordance with the terms of the . . .
settlement agreement,” the court ordered that “Nationwide . . . is granted a
full policy release, releasing Nationwide . . . of all obligations under its
policies and all possible present and future extra-contractual liabilities in
connection with the claims involved in this complaint.” On March 29, 2018,
counsel for Nationwide filed notice of entry of the March 14, 2018 order.
6
Northfield paid its portion of the settlement in late March or early
April, 2018.5 On April 13, 2018, the court set an order to show cause (OSC)
regarding dismissal of the case for June 18, 2018.
In June 2018, the Sakhais filed a motion for enforcement of the
settlement agreement pursuant to section 664.6. They also filed an ex parte
application to shorten time to hear the motion, giving notice of the
application to the Balakhanes and to counsel for the insurers. The court set
the hearing on the Sakhais’ motion for August 3, 2018.
In their motion to enforce the settlement, the Sakhais argued that
“[the] parties agreed to the terms [of the settlement agreement] on the record
in open court . . . and therefore the settlement is enforceable by way of motion
pursuant to [section] 664.6.” They claimed that the Balakhanes materially
breached the settlement agreement by filing a motion in May 2018 seeking a
determination that they were the prevailing parties. The Sakhais’ motion
also argued that “[p]ursuant to the terms of the February 2, 2018 settlement
agreement made orally before this court, the court agreed to retain
jurisdiction over the parties” pursuant to section 664.6.
Also in June, 2018, the Balakhanes filed another ex parte application
for a motion to declare the settlement agreement breached and enter
judgment against the Sakhais. They argued that the Sakhais had not paid
the $350,000 owed under the settlement agreement.
On August 3, 2018, the court held a hearing on its OSC regarding
dismissal, the Sakhais’ motion to enforce settlement, and the Balakhanes’
motion to declare the agreement breached. In its written order issued after
the hearing, the court noted that it was undisputed that respondent insurers
had made their payments under the settlement agreement, but that the
Sakhais had not made the remaining payment. The court rejected the
argument that the Balakhanes had breached the settlement agreement,
noting that they were “entitled to bring a motion under CCP § 664.6 to
enforce the Agreement.” The court ordered the Sakhais to “make the
remaining payment of $350,000 forthwith or face the consequences of having
the liquidated damages clause go into effect.” The court also stated that any
5 The record contains a proposed order granting Northfield a policy
release, but there is no indication that it was filed or granted.
7
party could bring an appropriate motion for attorney fees or other costs
incurred in seeking enforcement of the settlement agreement and “once that’s
decided, the matter will be concluded.” The Sakhais paid the $350,000 the
same day.
III. Motion for Attorney Fees and First Appeal
The Balakhanes filed a motion for attorney fees and costs incurred from
their motion practice to enforce the settlement agreement on August 16,
2018. In their opposition, the Sakhais again argued that the court agreed to
retain jurisdiction over the parties pursuant to section 664.6 to enforce the
settlement agreement, that the Sakhais had paid the full amount owed, and
that the Balakhanes had breached the agreement. The court denied the
motion for attorney fees and costs on November 5, 2018.
The Balakhanes appealed from the trial court’s denial of their motion
for attorney fees and costs. In our prior unpublished opinion, Balakhane v.
Sakhai (Aug. 27, 2020, No. B294837) (nonpub. opn.), we affirmed the trial
court’s denial of attorney fees. We also noted that in their respondents’ brief
on appeal, the Sakhais argued that the settlement agreement was void for
noncompliance with section 664.6. We refused to consider this claim, as the
Sakhais had not raised it below and had not appealed from the judgment.6
IV. Motion to Vacate
On February 27, 2020, the Sakhais filed a motion to “vacate void orders
of March 5, 2018, March 14, 2018, March 29, 2018 releasing non parties”
Nationwide and Northfield. Citing section 473, subdivision (d) (473(d)), the
Sakhais contended they could move at any time to set aside a void judgment
or order. They argued that respondents were not parties to the lawsuit and
the court thus had “no jurisdictional basis” to order a release of their
liabilities in connection with the claims at issue. They also argued that the
court lacked jurisdiction to enter the order granting the policy release
because no party had requested that the court retain jurisdiction under
section 664.6 to enforce the settlement agreement.
Respondents opposed. Nationwide argued that the judgment tracked
the settlement and was therefore valid under section 664.6, that the court
6
The Sakhais filed a notice of appeal, but then defaulted and their
appeal was dismissed.
8
had subject matter jurisdiction over the settlement agreement, including the
policy release, and that Nationwide performed under the settlement
agreement. Nationwide also argued that the Sakhais could not challenge the
merits of a final judgment two years after entry under the guise of section
473(d). Northfield filed a “notice of special appearance to file joinder” in
Nationwide’s opposition. In addition to joining the opposition, Northfield
sought to strike the Sakhais’ motion to vacate, claiming that the Sakhais
failed to give Northfield timely notice of the motion.
The hearing was held June 26, 2020. Counsel for Nationwide and
Northfield made special appearances on behalf of the insurers. In response to
a query from the court regarding the basis of the motion, counsel for the
Sakhais confirmed that the motion was brought under section 473(d) in an
effort to vacate the challenged order as void. He also challenged the court’s
ability to enforce the settlement agreement because respondents did not
personally consent and no party requested that the court retain jurisdiction
under section 664.6.
The court denied the Sakhais’ motion. The court rejected their
argument that the judgment was void, finding that the transcript of the
agreement entered on the record on February 2, 2018 established “that the
Court’s jurisdiction to enforce the settlement agreement was properly
preserved.” The court noted that counsel for both parties “expressly agreed
that this open-court settlement was being brought pursuant to, and was ‘fully
enforceable’ under,” section 664.6. The court further cited the personal
acknowledgment by the parties on the record on February 2, 2018 that they
had heard, understood, and agreed to the terms of the agreement, which
included the payments and the insurance policy release, followed by the
court’s express retention of jurisdiction under section 664.6.
The Sakhais timely appealed from the court’s order denying their
motion to void prior orders. In their notice of appeal, the Sakhais also stated
they were appealing from the court’s March 5, 14, and 29, 2018 orders, based
on the claim that those orders “stem[med] from void 02/02/18 proceedings
involving nonparties.”
9
DISCUSSION
The Sakhais contend the trial court erred in denying their motion to
vacate as void the 2018 orders releasing respondents from liability pursuant
to the settlement agreement. We conclude the trial court’s orders were not
void and therefore the court did not err in denying the Sakhais’ request to
vacate them.
I. Legal Standards
Under section 473(d), a trial court “‘may . . . set aside any void
judgment or order.’” “By its plain terms, this provision grants a trial court
the discretion to set aside a judgment or order, but only if that judgment or
order is ‘void.’” (People v. North River Insurance Co. (2020) 48 Cal.App.5th
226, 232 (North River), citing Nixon Peabody LLP v. Superior Court (2014)
230 Cal.App.4th 818, 822.)
A judgment is “void” only when the court entering that judgment
“lack[ed] jurisdiction in [a] fundamental sense” due to the “‘entire absence of
power to hear or determine the case’” resulting from the “‘absence of
authority over the subject matter or the parties.’” (People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, quoting Abelleira v.
District Court of Appeal (1941) 17 Cal.2d 280, 287, 288.) As our Supreme
Court has explained, “jurisdictional errors can be of two types[:] A court can
lack fundamental authority over the subject matter, question presented, or
party, making its judgment void, or it can merely act in excess of its
jurisdiction or defined power, rendering the judgment voidable.” (In re
Marriage of Goddard (2004) 33 Cal.4th 49, 56.) “Only void judgments and
orders may be set aside under section 473, subdivision (d); voidable
judgments and orders may not.” (North River, supra, 48 Cal.App.5th at p
234; see also Vitatech Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 807;
Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441 [“A trial
court has no statutory power under section 473, subdivision (d) to set aside a
judgment that is not void.”].)
“Voidness is a legal question we review de novo; the discretionary
decision whether to set aside a void judgment or order is, as one would
anticipate, reviewed solely for an abuse of that discretion.” (North River,
10
supra, 48 Cal.App.5th at p. 232; see also Nixon Peabody LLP v. Superior
Court, supra, 230 Cal.App.4th at p. 822.)
II. Analysis
The Sakhais argue that the court’s orders granting the Nationwide
policy release7 were void because the court lacked subject matter jurisdiction
over the settlement and personal jurisdiction over respondents as nonparties.
We disagree on both counts.
We find that the trial court had fundamental jurisdiction over the
subject matter of the settlement agreement. The Sakhais’ challenge focuses
on the second part of section 664.6, which provides: “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.” They
contend the court did not properly retain jurisdiction under section 664.6
because the parties did not affirmatively request that it do so during the
February 2, 2018 hearing.
As an initial matter, the issue of the court’s ability to retain jurisdiction
under section 664.6 is properly raised only if the matter has been dismissed
pursuant to settlement. In order to maintain subject matter jurisdiction over
the action following dismissal, the court must affirmatively retain
jurisdiction to enforce the settlement pursuant to section 664.6. (See Hagan
Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1010-1011 [court
lacked jurisdiction where parties did not request that the court retain
jurisdiction prior to dismissal of the case]; Wackeen v. Malis (2002) 97
Cal.App.4th 429, 433 [“requests for retention of jurisdiction must be made
prior to a dismissal of the suit”]; Basinger v. Rogers & Wells (1990) 220
Cal.App.3d 16, 23 [“[Plaintiffs] could have filed their motion under section
664.6 . . . before their dismissals were filed. Having waited to bring their
7
We note that apart from the March 5, 2018 order enforcing the policy
release portion of the agreement, there is no indication in the record before us
that the court issued a separate order granting a policy release to Northfield,
as it did for Nationwide. Northfield contends that no such order was
necessary to effectuate the release, as it was one of the terms of the
agreement. In any event, our reasoning regarding the court’s jurisdiction
would apply to a Northfield policy release as well.
11
motion until after their actions were dismissed, [Plaintiffs] must now contend
with the policies favoring finality of judgments and termination of litigation”
pursuant to section 473.]; Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d
200, 206 [“Because the old action was no longer pending at the time the court
sought to enter the judgment reviewed here, the court was without subject
matter jurisdiction.”].)
Here, the court had not dismissed the case when it entered the
challenged orders regarding the insurance policy release in March 2018. In
April 2018, after Nationwide and Northfield made payments required under
the settlement agreement, the court issued an OSC regarding dismissal of
the action, but continued the hearing to August 2018. At the August 3
hearing, the court did not dismiss the action, but indicated that the matter
would be concluded after deciding any motion by the Balakhanes for attorney
fees. As such, the court retained original subject matter jurisdiction over the
litigation at the time it granted the Nationwide policy release and issued the
related orders enforcing the settlement agreement. Therefore, retained
jurisdiction under 664.6 is not at issue.
In addition, we agree with respondents that the parties properly
requested that the court retain jurisdiction to enforce the settlement
pursuant to section 664.6. While reciting the terms of the settlement into the
record, counsel for both parties confirmed their intention that the agreement
was to be enforced pursuant to section 664.6. The parties then personally
agreed on the record that they had heard, understood, and agreed to those
terms. The trial court expressly stated it would retain jurisdiction under
section 664.6, without objection. The record thus demonstrates compliance
with the formal requirements for the retention of jurisdiction under section
664.6. (See Wackeen v. Malis, supra, 97 Cal.App.4th at p. 440 [“a request
that jurisdiction be retained until the settlement has been fully performed
must be made either in a writing signed by the parties themselves, or orally
before the court by the parties themselves”].)
We also reject the Sakhais’ assertion that the trial court lacked
personal jurisdiction over respondents. It is undisputed that respondents
were not parties to this litigation. Nevertheless, the record demonstrates
that both Northfield and Nationwide submitted to the jurisdiction of the
12
court. A court acquires personal jurisdiction over a party that makes a
general appearance in an action, even if no summons is served on that party.
(§ 410.50, subd. (a).) “A party may make a general appearance in an action
by “‘various acts which, under all of the circumstances, are deemed to confer
jurisdiction of the person. [Citation.] What is determinative is whether [that
party] takes a part in the particular action which in some manner recognizes
the authority of the court to proceed.” [Citation.]’” (Serrano v. Stefan Merli
Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1028–1029 (Serrano).)
“A party whose participation in an action is limited to challenging the
court’s personal jurisdiction does not make a general appearance. Other
forms of participation, however, such as seeking affirmative relief or opposing
a motion on the merits, ordinarily constitute a general appearance.”
(Serrano, supra, 162 Cal.App.4th at p. 1029, citing Dial 800 v. Fesbinder
(2004) 118 Cal.App.4th 32, 52–54; Alioto Fish Co. v. Alioto (1994) 27
Cal.App.4th 1669, 1688–1689.) “Even a nonparty that is not named in the
pleadings makes a general appearance and submits to the court’s personal
jurisdiction by participating in the proceedings in such a manner.” (Serrano,
supra, 162 Cal.App.4th at p. 1029, citing People v. Ciancio (2003) 109
Cal.App.4th 175, 192–193.)
Here, respondents did not challenge the trial court’s personal
jurisdiction over them for the purposes of enforcing the settlement
agreement. In fact, they agreed through their counsel to the terms of the
settlement, including the court’s retention of jurisdiction under section 664.6
to enforce those terms, and then complied by making the promised payments.
Further, although they claimed to be specially appearing, they filed briefs on
the merits regarding the Balakhanes’ motion to enforce the settlement
agreement. Respondents also requested affirmative relief when they asked
the court to enforce the settlement agreement, including an order
effectuating the policy release as provided in the settlement. Through these
acts, we conclude that respondents made a general appearance in the action
and were therefore subject to the court’s personal jurisdiction for the purpose
of enforcing the settlement agreement.
The Sakhais contend that respondents were not subject to the court’s
jurisdiction because they only specially appeared in response to the ex parte
13
application filed in February 2018 by the Balakhanes seeking to enforce the
settlement. They argue that an ex parte appearance is insufficient to
establish personal jurisdiction. The record does not support the assertion
that respondents appeared specially or only in connection with ex parte
proceedings. Although the Balakhanes initially sought to enforce the
settlement through an ex parte application, the court deemed the application
a motion after the Sakhais objected that ex parte relief was improper.
Moreover, respondents appeared before the trial court on February 2, 2018
and agreed through counsel to be bound by the settlement agreement, they
filed supporting papers to the Balakhanes’ ex parte application (deemed by
the trial court as moving papers) to enforce the settlement, and they
appeared at the March 5, 2018 hearing on that motion, all without any
objection by the Sakhais. (See, e.g., Tokio Marine & Fire Ins. Corp. v.
Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 122, fn.4 (Tokio)
[Noting that “[a]ppearing only specially to contest jurisdiction . . . precludes
opposition on the merits”].) Each time, respondents asserted that the court
could enforce the settlement agreement. It is also undisputed that
respondents made all payments under the agreement. As such, the record
clearly demonstrates that they were willing participants to the settlement
agreement and to the court’s jurisdiction to enforce it.
The Sakhais’ reliance on Tokio, supra, 75 Cal.App.4th 110 is
inapposite. There, the parties to the litigation (a general contractor and a
roofing contractor) and their respective insurers entered into a stipulated
judgment. The stipulation did not provide that the general contractor's
insurer, a non-party to the litigation, had submitted to jurisdiction, would be
added as a party, or agreed to be named as a judgment debtor. (Id. at p. 114.)
After the roofing contractor received a favorable judgment at trial against the
general contractor, it filed a motion to “correct” the judgment to add the
general contractor’s insurer as an additional judgment debtor. The trial court
granted the motion. (Id. at p. 115.) The Court of Appeal reversed, finding
there was no basis to add the insurer as a judgment debtor on the grounds of
“clerical error” under section 473(d). (Id. at pp. 117-118.) The court noted
that the stipulated agreement “contains neither an express submission to
jurisdiction by the [insurer], . . . nor an express agreement to be named as
14
judgment debtor[ ] in the action between the general contractor and the
roofing contractor.” (Id. at p.119.) The court also summarily rejected the
roofing contractor’s argument that the trial court properly added the insurer
as a judgment debtor pursuant to section 664.6, stating that the insurer was
“not [a party] to the litigation; section 664.6 therefore does not apply.” (Ibid.;
see also Fazzi v. Peters (1968) 68 Cal.2d 590, 591-592, 594 [judgment void
where the plaintiff sued a partnership but not the individual partners, but
then obtained a default judgment against the individuals].)
In contrast, here, the insurers repeatedly indicated their agreement to
submit to the trial court’s jurisdiction. The parties agreed on the record to
the terms of the settlement, including that the insurers’ payments were
conditioned on a full policy release by the Sakhais. Once the insurers
submitted the payment, the court was well within its authority to enforce the
terms of the settlement and grant the policy release. The Sakhais have cited
no case that precludes the court’s ability to enforce a settlement agreement
under these circumstances.
The Sakhais also contend that the settlement did not comply with
section 664.6 because respondents did not personally consent to the
agreement and the trial court altered the terms of the agreement by issuing
the policy release. These challenges to the settlement agreement are
untimely and forfeited. They do not render the judgment void, and the
Sakhais failed to raise a challenge to any purported voidable jurisdictional
errors either before the trial court or within the time to appeal from those
orders in 2018. Indeed, the Sakhais sought to enforce the settlement
agreement and did not raise any objection to respondents’ appearances or the
court’s authority under section 664.6 until they filed their respondents’ brief
in the prior appeal and their motion to vacate in the trial court (long after the
settlement funds had all been paid). Under these circumstances, the Sakhais
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. [“a court’s act in excess of its jurisdiction is valid until set aside,
and a party may be precluded from setting it aside, due to waiver, estoppel or
the passage of time.”]; Avalos v. Perez (2011) 196 Cal.App.4th 773, 776 [“As a
general rule, a claim of error will be deemed to have been forfeited when a
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party fails to bring the error to the trial court’s attention by timely motion or
objection.”].)8
DISPOSITION
The order denying the Sakhais’ motion to vacate the court’s March 5,
14, and 29, 2018 orders is affirmed. Respondents are awarded their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
8 At oral argument, counsel for the Sakhais claimed for the first time
that respondents were barred from relief pursuant to section 583.210. “We do
not consider arguments that are raised for the first time at oral argument.”
(Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184
Cal.App.4th 1539, 1554, fn. 9; see also, e.g., Palp, Inc. v. Williamsburg
National Ins. Co. (2011) 200 Cal.App.4th 282, 291, fn. 2.)
16