Opinion
B206783
7-8-2009
DAVID SIMON, Plaintiff and Appellant, v. MICHAEL HARTUNIAN et al., Defendants and Respondents.
Law Office of Christie Gaumer and Christie Gaumer for Plaintiff and Appellant. Law Offices of Wayne S. Marshall, Wayne S. Marshall; Galfin Passon & Greely and Adam M. Greely for Defendants and Respondents.
Not to be Published in the Official Reports
On May 3, 2004, appellant David Simon filed a second amended complaint naming, among others, respondents the Coldwell Banker Residential Brokerage Company and Teruko Dahn (collectively Coldwell), respondents Mike and Claire Hartunian and the Hartunian Family Trust (collectively Hartunian). Eight of the 16 causes of action named respondents Coldwell and Hartunian as defendants. Hartunian and Coldwell filed motions for summary judgment respectively on November 1 and 2, 2007. The trial court granted both motions on January 22, 2008, on the ground that appellants action was barred by res judicata as a result of the judgment entered in the Estate of Simon (B193611), which was affirmed by Division Five of this Court of Appeal on July 18, 2007, in a nonpublished opinion. We will refer to that appellate decision and opinion as Simon I. We agree with the trial court and therefore affirm.
THE APPEAL IS FROM THE JUDGMENT
Appellants notice of appeal, filed on March 21, 2008, states that the appeal is from "the minute order dated January 22, 2008 granting the motions for summary judgment . . . as well as from any and all other related appealable orders and/or rulings." We note that appellant has failed to include in the appendix a copy of the notice of appeal. "An order granting a motion for summary judgment is not an appealable order or judgment." (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1816; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 145, p. 220.)
Appellant has also omitted to include in the appendix the ruling of the trial court from which he purports to appeal.
We notified the parties on April 7, 2009, that we were considering whether to dismiss the appeal. In response to our notice, appellant moved to augment the record with a judgment that was entered on April 13, 2009. The motion is granted and the record is augmented with this judgment.
Respondent has not filed a letter brief on this issue. We are informed by appellants counsel that respondent did not oppose the entry of the judgment that was entered April 13, 2009.
Appellants notice of appeal was premature. "A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment." (Cal. Rules of Court, rule 8.104(e)(1).) Judgment in this case was rendered on January 22, 2009, when the court granted the motions for summary judgment. (7 Witkin, Cal. Procedure, supra, Judgment, § 46, p. 583.)
Appellants notice of appeal states that the appeal is from the minute orders granting summary judgment but no appeal can be taken from such orders. "[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) It is clear what appellant was trying to appeal from and respondent has not been misled or prejudiced. We treat the appeal as from the judgment entered on April 13, 2009.
FACTS
1. Introduction
Appellant is the son of Ernst and Helga Simon. Appellant contends that by virtue of a will executed by Helga in 1984 he is entitled to a single family residence located at 650 South Gretna Green (Gretna Green property) in Los Angeles. Helga died in October 1984. Ernst married Adelle Wisely sometime after Helgas death. Ernst and Adelle sold the Gretna Green property to Mr. and Mrs. Hartunian, who were represented in the sale by the Coldwell respondents, on July 1, 2003, for $750,000. While it is clear that appellant entertains multiple grievances against Adelle, respondents sole connection to appellants affairs is that they respectively bought, and were instrumental in the purchase, of the Gretna Green property.
Whenever possible, we use first name for the sake of brevity and clarity and intend no disrespect thereby.
In addition to the instant action, appellant has filed and prosecuted a civil action against Ernst and Adelle, three probate petitions and one legal malpractice action, all of which included appellants claims to the Gretna Green property, although they were not limited to this item of property. This is so despite the fact that the civil action against Ernst and Adelle and the first of the three probate petitions were comprehensively settled in 1998. In an appeal that arose from the second probate petition, Division Five of this Court of Appeal held that the 1998 settlement barred any and all attempts by appellant to litigate any aspect of Helgas estate or the disposition of property contained in Helgas estate. Although Division Fives opinion was filed on July 18, 2007, appellant continues in the instant appeal to pursue the Gretna Green property.
2. Background Facts
For a statement of the background facts, we turn to Simon I, which contains a thorough and lucid statement of the underlying facts. We do so under the authority of rule 8.1115(b)(1) of the California Rules of Court that permits citation and reliance on an unpublished opinion when the unpublished opinion "is relevant under the doctrines of law of the case, res judicata, or collateral estoppel." In this case, Simon I is relevant under the doctrine of res judicata. We have compared the facts as set forth in Simon I with the separate statements of undisputed material facts in the summary judgment motions filed by Coldwell and Hartunian and find there are no substantial differences, with the exception that the statement of the background facts in Simon I is more complete.
The first two legal proceedings initiated by appellant were a civil action against Ernst and Adelle and a petition wherein appellant sought to probate a 1983 will executed by Helga; both were commenced in 1998.
Appellant alleged in the civil action that Helgas 1983 holographic will left him 49 percent of Helgas community property assets; that he learned of this will only in March 1998; that Helgas estate contained valuable rare stamp and coin collections, stocks, a claim with a value of $500,000 against the German government, and nine real properties valued at $2 million; that Ernst had a tax preparation business where appellant worked as a tax preparer; that appellant managed his parents properties since 1981 and had not been compensated for his services. The civil action sought compensation for appellants services, a judgment allowing him to inherit under the 1983 will and an order enforcing "Ernsts alleged promise to convey his interest in the nine [parcels of] real properties to [appellant]." (Simon I, supra, B193611 [p. 4].)
The court in Simon I found it significant, as do we, that the complaint in the civil action went on to expressly allege that, in addition to the 1983 will, Helga executed other wills favorable to appellant and that the originals of these other wills were in Ernsts possession. The complaint went on to allege that Ernst and Adelle had intentionally destroyed the original of the 1983 will "`and possibly other original Wills" and that Ernst and Adelle had failed to distribute Helgas property in accordance with Helgas wishes. (Simon I, supra, B193611 [p. 4].)
The civil action and the first probate petition were settled on November 3, 1998. The settlement was placed on the record. Appellants counsel stated that "`the parties have entered into a global settlement agreement to resolve all issues." (Simon I, supra, B193611 [p. 4].) Under the settlement, appellant acquired three parcels of real property, certain personal property including all of Helgas jewelry, ownership of Ernsts tax preparation business and the right to any reparations paid by the German government. As is standard, the settlement agreement included a provision that the parties agreed not to sue each other except for breach of the settlement agreement and for causes of action arising from the future conduct of the parties. (Simon I, supra, B193611 [pp. 4-5].)
We find it unnecessary to set forth the colloquy on November 3, 1998, between the court and appellant during which the court carefully inquired whether appellant understood the terms of the settlement and whether he agreed with its terms. Needless to say, appellant repeatedly assured that court that he understood and accepted the terms of the settlement agreement.
In due course and in keeping with the settlement agreement the civil action was dismissed with prejudice and the first probate petition was withdrawn.
In June 2001 appellant discovered a holographic will that Helga had executed in June 1984. In November 2001 appellant filed the second petition seeking to probate this will. Appellant did not pursue this petition.
In May 2003, appellant sued lawyers Robert Eroen and Jill Rosenthal and the law firm of Eroen & Eroen for legal malpractice for their alleged failure to record a lis pendens in the civil action that was settled in 1998. We will refer to these lawyers collectively as the Eroen parties.
In October 2005 appellant filed a third petition in which he sought to probate the 1983 will with its 1984 codicil. The Eroen parties appeared in this third probate proceedings as objectors. They sought summary judgment on the ground that the 1998 settlement barred appellants action against them. It is this motion that led to the decision and opinion in Simon I.
3. The Instant Action
This action was filed in May 2004, i.e., after the legal malpractice action and before the third probate petition. The parties agreed to stay the instant action until the matter of the 1984 will, i.e., codicil, was resolved in probate court. This resolution came about in the trial court per Judge Aviva Bobb in July 2006 and, as we have already noted, it was this decision that was affirmed in Simon I in July 2007.
Appellant opposed the motions for summary judgment brought by respondents on the theory that Ernst "promised the [Gretna Green] property to David [appellant]," that Ernst intended to "follow Helgas will," that Ernst was suffering from "mental deficits," that Adelle "kidnapped Ernst from [the] hospital running from the warrant for her arrest," and that Adelle "used undue influence over Ernst." In other words, the nub of the matter, as far as appellant is concerned, is that Ernst intended to give him the Gretna Green property and promised to do so but Adelle prevented Ernst from doing so.
The sole connection between respondents and these allegations is the following cryptic statement in appellants response to respondents statements of undisputed material facts: "Propriety of sale already subject to prior motion for summary judgment showing issues of fact regarding Hartunians knowledge of these facts." This statement is identical in the oppositions to both motions. In both instances, there is no reference to any evidence that supports this statement. Nor, for that matter, does this evasive statement actually assert that Hartunian had knowledge of any facts and it certainly does not specify what facts Hartunian knew.
In appellants opening brief, appellant asserts, without citing any evidentiary support in the record, that Mr. Hartunian and the business for which he works, Metrocities Mortgage, "was involved" in the sales of various properties, including the Gretna Green property, from Helgas estate and that these properties "were sold below market, in secret confidential sales" and that Mr. Hartunian and respondent Dahn "admit that they know each other" and that Adelle "sold the houses in this secret improper way."
This is followed by the scurrilous assertion that Mr. Hartunian contacted Judge Bobb and that Judge Bobb "obtained a mortgage with Hartunian through Metrocities. . . . Hartunians conduct is very suspect. He cannot contact the judge who ruled in his favor and sell her a mortgage." (Fn. omitted.) We address this statement separately below.
DISCUSSION
1. Appellants Theory Is Foreclosed by the 1998 Settlement and the Dismissal of the Civil Action Against Ernst and Adelle
As we have shown, appellants theory is that Ernst promised him the Gretna Green property but Adelle prevented Ernst from following through on this promise. We call this a theory because that is all that it is; there is no evidence of any such promise and no evidence that Adelle prevented the promise from being carried out. Although, standing alone, this ends the matter, we demonstrate that appellants theory is devoid of any merit.
Taking this theory at full face value, it is obvious that it is foreclosed by the 1998 settlement of the civil action and by the dismissal with prejudice of that action. The civil action was against Ernst and Adelle. As far as Ernst was concerned, the civil action that was settled in 1998 sought, among other things, an order enforcing Ernsts alleged promise to convey his interest in nine parcels of real properties to appellant. Thus, the settlement and resulting dismissal resolved specifically appellants claims against Ernst, and not only appellants claims in connection with Helgas estate.
"A dismissal with prejudice is the modern name for a common law retraxit. [Citation.] Dismissal with prejudice under [Code of Civil Procedure] section 581 `has the same effect as a common law retraxit and bars any future action on the same subject matter." (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820.) Simon I explained this in detail at pages 7-12 of that slip opinion and we see no point in repeating that explanation here.
It is also true that the matter of the alleged 1984 will or codicil is, as a general matter, also foreclosed by the 1998 settlement and dismissal with prejudice. The record affirmatively establishes that appellant was aware in 1998 of other wills executed by Helga and that appellant believed that Ernst and Adelle had destroyed some of these wills. The settlement and dismissal of the 1998 civil action effectively resolved and extinguished any and all claims by appellant based on any of the wills executed by Helga, including the alleged 1984 will or codicil.
2. Respondents Have No Discernible Connection to Appellants Claims
As we have noted, appellant, without citing any evidence, appears to suggest that Hartunian knew that Ernst had promised the Gretna Green property to appellant and that, in some unspecified way, Adelle prevented Ernst from carrying out this promise.
We find this entire line of argument frivolous. We begin with the significant circumstance that appellant does not cite to any evidence that supports this argument. Standing alone, this is enough to put the matter to rest. But there is more. The matter of Ernsts alleged promises to appellant is concluded by the 1998 settlement and dismissal. And, barring some additional facts not apparent in the record, the mere fact that Hartunian knew of Ernsts alleged apparently oral promise at some unstated time in the past surely does not invalidate an otherwise valid sale of the Gretna Green property to Hartunian.
Such an oral promise would in all probability not be enforceable even by appellant, assuming it was made.
So much for Hartunian. When it comes to the Coldwell respondents, the single "fact," if it is a fact, on which appellant relies is that Mr. "Hartunian and [Coldwell respondent] Dahn admit that they know each other." As with most of appellants other assertions of fact, there is no citation to the record to support this. But that is really of no moment because it is obvious the Coldwells legal liability to appellant cannot be predicated on the "fact" that Mr. Hartunian knew Dahn. In sum, appellant cannot even state the vague, ambiguous and insubstantial case against Coldwell that he attempts to state against Hartunian.
3. Appellants Contentions Are Without Merit
Appellant propounds a number of arguments, none of which have any merit.
Appellant contends that the settlement agreement "is subject to rescission based on Adelles continuing undue influence, among other things. Indeed, [appellant] should prevail on those claims subject only to prove-up of damages because default has been entered against Ernst and Adelle." There is no citation to the record.
It is not explained why the 1998 settlement agreement can or should be rescinded for Adelles "undue influence," nor is it explained when that "undue influence" occurred or what acts constituted that "undue influence." While the settlement agreement is "subject to rescission," there is nothing to show it has ever been rescinded. It nowhere appears where, in what action, and when "default has been entered against Ernst and Adelle" and what relationship that default, assuming it occurred, has with the instant motions for summary judgment. Two words sum up this "argument": irresponsible and unprofessional.
Appellant contends that the trial court "found that Hartunian could assert Ernsts supposed rights in the settlement agreement as res judicata (actually collateral estoppel)." Ernsts rights under the settlement agreement and the resulting dismissal are actual and not supposed. The trial court did not find that Hartunian can assert Ernsts rights; the trial court found that the claims upon which this action is predicated have been resolved and concluded by the res judicata effect of the dismissal with prejudice of the 1998 civil action against Ernst and Adelle.
Appellant contends that the trial court is "tantamount" to a finding that Hartunian is a bona fide purchaser. The fact of the matter is that appellant has not produced a single item of evidence that suggests, even by implication, that Hartunian is anything other than a bona fide purchaser. As noted, the vague suggestion that Hartunian knew of some promise, made at an undisclosed time and in an undisclosed manner, that Ernst would convey the Gretna Green property to appellant, does not even frame a discernible legal issue; a promise made by A to B, which is not indicated to be enforceable as between A and B surely does not bind C.
While appellant captions an argument stating that the opinion and decision in Simon I does not bar the instant action, appellant fails to follow this caption with an argument on this subject. Instead, appellant states that because the instant action is against Ernst, it is not covered by Simon I. This of course is blatantly incorrect, as (1) the 1998 civil action was also against Ernst (and Adelle), and (2) this instant action is not only against Ernst.
The gist of the matter is that all of appellants claims against Ernst and Adelle asserted in the 1998 civil action are precluded by the doctrine of res judicata, and the instant action attempts no more than to relitigate those claims.
4. Appellants Statement About Judge Bobb Is Censurable
We find offensive and entirely improper the remark that Judge Bobb "obtained a mortgage with Hartunian through Metrocities." At every level, this remark is censurable. Most importantly, it assaults the integrity of a judicial officer of this state with a poorly veiled charge of corruption. This is intolerable. It also attacks the personal integrity of Mr. Hartunian. To say that it is irrelevant, obnoxious and without a shred of factual support is to belabor the obvious. It is, however, in keeping with the complete lack of responsibility and professionalism that is exhibited by appellants counsel.
This appeal is so marginal that we notified the parties that we were considering the imposition of sanctions for taking and prosecuting a frivolous appeal. Respondents have chosen to remain silent on the issue. This is a show of restraint that we find commendable; unfortunately, such restraint is more the exception than the rule. All things considered, we conclude that we will not impose sanctions. This does not mean that we think that any of the points raised by appellant has even a semblance of merit.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur:
BIGELOW, J.
BAUER, J.