Sedaghat v. Tarzana Health and Rehabilitation Center CA2/2

Filed 6/14/23 Sedaghat v. Tarzana Health and Rehabilitation Center CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
S. DAVID SEDAGHAT, B309406
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC700483)
v.
TARZANA HEALTH AND
REHABILITATION CENTER et
al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael P. Linfield, Judge. Reversed.
S. David Sedaghat, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller,
Suzanne L. Schmidt and Matthew S. Pascale for Defendants and
Respondents.
Plaintiff and appellant S. David Sedaghat (David)1 appeals
from the trial court order dismissing the case with prejudice after
the trial court granted the motion of defendants and respondents
Tarzana Health and Rehabilitation Center and Savaseniorcare
Administrative Services, LLC (collectively respondents), to
enforce the settlement agreement pursuant to Code of Civil
Procedure section 664.6.2
In order to avail oneself of the summary procedures in
section 664.6 for enforcement of a settlement agreement, it is
required (among other things not relevant here) that the
settlement agreement must be signed by all parties to the
settlement. Since we find the prerequisites of section 664.6 were
not satisfied, and no waiver of that requirement was established,
we reverse the order and reinstate the action.
FACTUAL BACKGROUND
Nasser Sedaghat passed away while a resident at
respondents’ skilled nursing facility. David in propria persona
filed a form complaint in April 2018, claiming that Tarzana
Health and Rehabilitation Center and Kamran Kamrava, M.D.,
negligently caused his father’s death.
In July 2018, David retained Attorney Steward Levin, who
filed a first amended complaint, alleging respondents neglected
Nasser Sedaghat’s needs, resulting in personal injuries from
1 We refer to S. David Sedaghat by “David” to avoid
confusion with the other plaintiffs, who share the same last
name. No disrespect is intended.
2 Unattributed statutory references are to the Code of Civil
Procedure.
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multiple falls and bedsores. David, as successor-in-interest to
Nasser Sedaghat, pleaded claims for elder abuse, medical
malpractice, and negligence. Nasser Sedaghat’s three sons,
David, Michael Sedaghat, and Allen Sedaghat (collectively,
plaintiffs), brought a wrongful death claim.3
Dr. Kamrava was dismissed from the action after making
successful demurrers to and motions to strike the claims against
him in the first and then second amended complaint.
After a full-day mediation a settlement was reached.
Respondents drafted the settlement agreement that plaintiffs
signed in March 2020. David signed the agreement in his
capacity as an individual and as successor-in-interest for Nasser
Sedaghat. Respondents did not sign the agreement. Plaintiffs
filed a notice of settlement of the entire case on March 16, 2020.
In April 2020 David discharged Attorney Levin and notified
opposing counsel that the settlement agreement was “hereby
retracted as null.” Levin filed a motion to be relieved as counsel,
citing the breakdown in his relationship with David, who opposed
by arguing that Levin had coerced him into the settlement. The
trial court granted Levin’s leave to withdraw, finding no
prejudice to David.
In July 2020, respondents filed a motion to enforce the
settlement, which was joined by plaintiffs Michael and Allen
Sedaghat. David opposed, arguing the settlement was the result
of coercion and economic duress, respondents were submitting
falsified or altered documents, and he had not signed the
agreement.
3 Neither Michael Sedaghat nor Allen Sedaghat are parties
to this appeal.
3
David filed several motions and ex parte applications to
prevent the enforcement of the settlement, all of which were
denied. David also filed a motion to disqualify Attorney Levin
from representing his brothers, Michael and Allen Sedaghat,
arguing that a conflict of interest existed between him and his
brothers. This motion was also denied.
On October 16, 2020, the trial court granted respondents’
motion to enforce the settlement, finding that each plaintiff had
signed the settlement agreement, and that respondents had not
signed the settlement agreement. Having found the parties had
entered into a valid settlement agreement, the trial court granted
the motion pursuant to section 664.6 and dismissed the case with
prejudice.
Thereafter David filed three more motions: one to vacate
the October 16, 2020 dismissal, a second to vacate the order
granting the motion to enforce the settlement, and a third to
compel the terms of the settlement. Each was denied.
David filed a timely notice of appeal on November 30, 2020.
CONTENTION ON APPEAL
David identified six grounds to challenge the dismissal of
his case: the denial of his motion to disqualify Attorney Levin, the
finding the settlement agreement was valid, the refusal to
suspend proceedings, the failure to conduct an evidentiary
hearing on undue influence by Levin, and the denial of David’s
two motions to vacate the dismissal. Respondents argue David
forfeited these challenges because he failed to comply with
appellate rules and did not present argument and authority on
each point.
4
Appellate courts may, and ordinarily do, “disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.” (City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) Additionally, no
error warrants reversal unless the appellant can show injury
from the error. (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729,
740.)
The opening brief is unclear and contains many conclusory
arguments lacking legal authority or reasoning. We exercise our
discretion and consider only David’s challenge that the
settlement agreement was improvidently enforced as it was not
signed by respondents as David cited the legal authority of
section 664.6 and offered reasoning by which he reached his
conclusion that the dismissal should be reversed.4 Therefore, we
will consider the merits of David’s claim, as lack of clarity in the
4 The court granted the motion under section 664.6 and
dismissed the action. The dismissal was not an appealable
judgment because the minute order was not signed by the court.
(See Powell v. County of Orange (2011) 197 Cal.App.4th 1573,
1577 [an unsigned minute order of dismissal is not effective as a
judgment].) The record does not show that a formal judgment was
entered. Absent a formal entry of judgment, an appellate court
may amend an order to include a judgment if the effect of the
order is to finally determine the rights of the parties in the
action. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th
688, 698–700.) We conclude that the effect of the order here was
to finally determine the rights of the parties in this action by
enforcing the settlement agreement and dismissing the action.
Although we reverse, the order can readily be amended to include
an appealable judgment so as to expedite appellate review.
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opening brief does not prevent or unduly complicate our appellate
review of the dismissal. We decline to consider David’s other
issues because they are not supported by pertinent legal
authority and reasoning. Any arguments not discussed in this
opinion are deemed forfeited.
Respondents argue that David forfeited the issue of
dismissal by failing to raise it in opposition to their motion to
enforce the settlement. “[P]arties are not permitted to ‘“adopt a
new and different theory on appeal. To permit [them] to do so
would not only be unfair to the trial court, but manifestly unjust
to the opposing litigant.”’” (Mattco Forge, Inc. v. Arthur Young &
Co. (1997) 52 Cal.App.4th 820, 847.)
Though David did not raise the issue in opposition to the
motion to enforce the settlement, he raised it later when he
sought to vacate the order granting the motion to enforce the
settlement. Respondents then had the opportunity to address his
argument at the trial court and indeed did so by claiming David
waived their signatures to the agreement. The trial court noted
David’s argument about the lack of signatures in its minute order
on David’s motion, but granted the motion. Therefore, David’s
theory that the settlement agreement cannot be enforced is not a
new and different theory that is “manifestly unjust” to consider
on appeal.
DISCUSSION
I. Standard of review
A trial court may grant a motion requesting entry of
judgment premised on a settlement agreement in pending
litigation if the litigants “stipulate, in a writing signed by the
parties outside of the presence of the court . . . for settlement of
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the case, or part thereof, . . . pursuant to the terms of the
settlement.” (§ 664.6.) Before judgment can be entered under
section 664.6, two key prerequisites must be satisfied.
(Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
797 (Weddington).) First, there must be a settlement contract
including a meeting between the minds of the parties. “Second,
there must be a ‘writing signed by the parties’ that contains the
material terms.” (Ibid.)
“The trial court’s factual findings on a motion to enforce a
settlement pursuant to section 664.6 ‘are subject to limited
appellate review and will not be disturbed if supported by
substantial evidence.’” (Osumi v. Sutton (2007) 151 Cal.App.4th
1355, 1360.) We review the trial court’s legal conclusions de novo.
(Weddington, supra, 60 Cal.App.4th at p. 815.)
II. There is no evidence the “signed by the parties”
condition under section 664.6 was waived
Waiver is “the intentional relinquishment or abandonment
of a known right.” (Bickel v. City of Piedmont (1997) 16 Cal.4th
1040, 1048, superseded by statute on another ground as noted in
DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.)
Waiver “‘always rests upon intent.’” (City of Ukiah v. Fones
(1966) 64 Cal.2d 104, 107.) The intention may be expressed in the
party’s words or implied from conduct that is “‘so inconsistent
with an intent to enforce the right as to induce a reasonable
belief that such right has been relinquished.’” (Savaglio v. Wal-
Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 598.)
Respondents have not identified evidence in the record
establishing David showed an intent to relinquish or abandon the
purported right to an agreement “signed by the parties” provided
under section 664.6. At oral argument, respondents claimed
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Vanessa Drake, an attorney for respondents, in her declaration
filed in support of respondents’ motion to enforce the settlement
agreement stated that a waiver occurred. Rather, Drake stated
that correspondence confirming the waiver was attached to her
declaration. The referenced correspondence being an e-mail from
respondents’ counsel, Matthew Pascal, to Levin, David’s former
counsel.
The e-mail states: “To alleviate your clients’ concern that
defendants do not sign the actual agreement, I informed you that
the client will certainly not only make payment but will do so by
wire transfer.” There is nothing in the e-mail showing that David
agreed to waive any right under section 664.6 to a signed
agreement.
This e-mail appears to be an effort to reassure David about
an unsigned agreement. It is not evidence that David expressly or
impliedly intended to relinquish a known right, and, as a result,
it is not evidence that David waived the “signed by the parties”
requirement in section 664.6.
III. Section 664.6 requires the signature of all parties to
a settlement agreement
The procedures in section 664.6 cannot be used to enforce a
written settlement agreement unless it is signed by all of the
parties, not merely the parties against whom the agreement is
sought to be enforced. (Harris v. Rudin, Richman & Appel (1999)
74 Cal.App.4th 299, 304–306.) Due to its summary nature, strict
compliance with section 664.6’s requirements is necessary to
invoke the court’s authority to enforce a settlement agreement.
(Sully-Miller Contracting Co. v. Gledson/Cashman Construction,
Inc. (2002) 103 Cal.App.4th 30, 37.) Consequently, if a party
seeks to enforce a written agreement under section 664.6, the
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party must strictly comply with the section’s signature
requirement. (Sully-Miller, at p. 37.)5
In conclusion, we find no substantial evidence that the
written agreement at issue here was signed by the parties, as
required before the court can exercise its power to enforce the
settlement agreement through the summary procedure of section
664.6. As such, we find the motion to enforce the settlement
agreement should have been denied.
DISPOSITION
We reverse the order of dismissal and direct the superior
court to reinstate the action. We also reverse the order granting
the motion to enforce the settlement and direct the superior court
to enter a new order denying that motion.
Appellant is awarded his costs of appeal.
________________________
CHAVEZ, Acting P. J.
We concur:
________________________ ________________________
HOFFSTADT, J. KWAN, J.*
5 We do not address whether under different facts a party
might be able to waive the signing by another party to the
settlement, as we have determined there was no evidence of such
waiver here.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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