Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara A. Meiers, Judge, Los Angeles County Super. Ct. No. BP079401
Law Offices of Thomas B. McCullough, Jr., Lauriann Wright and Thomas B. McCullough, Jr., for Objectors and Appellants.
Law Offices of Larry D. Lewellyn and Larry D. Lewellyn for Petitioner and Respondent.
MANELLA, J.
INTRODUCTION
Appellants Taguhi Kazazian and Sona Assadourian appeal from the probate court’s judgment of November 17, 2005, entered after a settlement was stated on the record. The judgment was not entered upon the settlement, but was based upon the probate court’s findings that were the subject of the settlement. The judgment was entered on the condition that appellants would file a notice of appeal solely to preserve their time to appeal, but would withdraw it once the settlement terms were fully performed if a subsequent court proceeding terminated in appellants’ favor. The settlement agreement has been performed, and appellants have obtained a subsequent order in their favor, but have not withdrawn the appeal. We issued an order to show cause why the appeal should not be dismissed as taken from a conditional, nonfinal judgment. Appellants contend the judgment was final, and in the alternative, ask this court to rescind the settlement agreement. We deny appellants’ request; we conclude the judgment was conditional, not final or appealable, and we dismiss the appeal.
BACKGROUND
In March 2003, three months after Martin Pogosian disappeared, appellant Kazazian filed a petition in probate, asking to be appointed conservator of Pogosian’s estate. The petition named appellants -- Pogosian’s sisters -- as the only living relatives. A few months later, respondent Victoria Calderon filed a competing petition to be appointed temporary conservator of the estate. Respondent had been acting on behalf of Pogosian since his disappearance, under a power of attorney executed by Pogosian October 10, 2002. On October 31, 2003, the probate court granted respondent’s petition, and ordered her to file an accounting of Pogosian’s businesses and other interests, and her activities on behalf of them.
Respondent and her daughter had lived with Pogosian and relied upon him for their support.
Appellants objected to respondent’s accounting. After trial, the probate court granted respondent’s petition for letters of conservatorship, sustained appellants’ objections to respondent’s accounting, and set a hearing on the accounting. Prior to the hearing, respondent filed an amended accounting and several supplements to the amended accounting, and the matter was referred to mediation. The probate court denied respondent’s petition for approval of a settlement reached in mediation, because Assadourian had not been a party to the mediation. When respondent filed a final accounting, appellants again objected, and the matter went to trial October 24, 2005, in Judge Meiers’s court, Department 12.
In her intended decision and proposed statement of decision, Judge Meiers approved respondent’s account “in toto” from January 24, 2003 to March 5, 2005. The court awarded attorney fees to respondent’s counsel, compensation to respondent, and reimbursement from the estate for sums advanced from respondent’s own funds, less sums used to pay her own taxes. In its statement of decision, the court found the objectors had produced no independent evidence to contradict the items in the accounting, and found no evidence respondent had abused her position for her own benefit.
On November 17, 2005, at the hearing in which Judge Meiers heard and rejected objections to the proposed statement of decision, the parties entered into a settlement agreement, which the court stated on the record, and to which counsel stipulated. The parties agreed that appellants would file a petition for declaratory relief to test the effect of the power of attorney under which Pogosian left respondent in charge of his affairs, including its effectiveness as a testamentary instrument. Upon a judicial declaration in appellants’ favor -- that respondent had no right, title or interest in the estate -- respondent would resign as conservator, and appellants would withdraw all pending petitions to remove her, as well as all petitions to transfer or discover assets. Such a declaratory relief ruling would be dispositive in the instant action, there would be no appeal from the judgment, and each party would “release any and all claims, personal and individual, known and unknown, against” the other. The settlement would then be enforceable under Code of Civil Procedure section 664.6. In addition, the parties waived any right to appeal from the declaratory relief judgment, regardless of the outcome.
Code of Civil Procedure section 664.6 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 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.”
The discussion then turned to the court’s tentative ruling in the trial the parties had just completed. The parties agreed they did not wish to delay payment of the conservator’s attorney fees for the several months the performance of the settlement terms would take. The court was of the opinion that fees could not be awarded separately from the approval of the account, and that the judgment the court had tentatively announced would have to be entered immediately, or the attorneys would not otherwise be paid until after a ruling on the declaratory relief petition. Accordingly, the court stated its intent to enter the judgment the following day. The parties and the court were hopeful the declaratory relief action would be completed within the 60-day period in which appellants were required to file a notice of appeal from the judgment in the instant action. Appellants’ counsel stated: “If worse comes to worse, I’ll just file my notice of appeal within 60 days and then withdraw it.” The court retained jurisdiction, and scheduled a status review hearing for March 3, 2006. Judge Meiers explained: “And on [March 3, 2006], if the court has heard nothing, the court will -- this department will divest itself of continuing jurisdiction on the settlement agreement. That’s without appearance, if the court records reflect resolution of the issues in accordance with the agreement. If not, counsel better appear. I’m figuring by then, it’s all going to be taken care of.”
The record on appeal contains no order of March 3, 2006, and the superior court docket does not indicate there was an order or hearing on that date. Nor does the record indicate whether the trial court ever terminated jurisdiction over the judgment and settlement, or whether either of the parties filed a motion pursuant to Code of Civil Procedure section 664.5 to have judgment entered pursuant to the terms of the settlement. We assume they did not do so, as they do not claim such a judgment was ever entered.
Judgment was entered the following day, November 17, 2005. The trial court adopted its tentative decision and proposed statement of decision as its ruling and final statement of decision. As contemplated by the settlement, appellant Kazazian filed a petition for declaratory relief December 2, 2005, and appellants filed their notice of appeal January 12, 2006.
Trial on the declaratory relief petition was held in April 2006, in Department 9 before Judge Stoever (retired). The court’s subsequent order, entered July 31, 2006, recited that the petition for declaratory relief had been filed pursuant to the settlement agreement stated on the record in Department 12. The court declared that the power of attorney was not a testamentary document, and was not intended to pass any rights or interests to respondent. Pursuant to the parties’ agreement, respondent resigned as conservator, and the court appointed appellants as co-conservators.
At respondent’s request, we have taken judicial notice of the petition and judgment in the declaratory relief proceeding. We granted appellants’ request for judicial notice of an order entered February 27, 2006, suspending respondent’s powers as conservator for failure to inform the court she had been charged with 13 felony counts on or about June 15, 2005. The record contains no further probate court orders until the July 31, 2006 order granting declaratory relief. The superior court docket shows an order appointing conservator entered May 24, 2006, but the order is not in the record on appeal. As respondent resigned July 31, 2006, we assume she was reappointed May 24, 2006. Respondent submitted for judicial notice a copy of a minute order showing that all 13 felony counts were dismissed April 26, 2007.
DISCUSSION
Appellants failed to mention the settlement agreement in their opening brief, which is devoted to challenging the trial court’s findings to support the judgment entered November 17, 2005. Appellants contend the court assessed respondent’s conduct under an erroneous standard and failed to hold respondent to her burden of proof, to appellants’ prejudice. Appellants seek reversal of the judgment and remand for retrial.
Respondent contends that appellants’ waiver of their right to appeal should be enforced. She cites McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480 (McConnell), to illustrate the enforcement of such a waiver by a court of appeal. In McConnell, however, judgment was entered on the parties’ settlement agreement, and the appeal was taken from an order after judgment. (See id. at pp. 485-486, 490-491.) The judgment included the appellant’s waiver of the right to appeal from such orders, and the court of appeal enforced the waiver by affirming the order and imposing sanctions for a frivolous appeal. (Id. at pp. 491-492.)
Here, the settlement agreement was reached prior to entry of judgment, and judgment was entered, not on the settlement, but on the trial court’s findings after the trial which the settlement agreement was designed to resolve. Appellants have appealed from that judgment, not from an order after judgment. Were we to affirm the judgment, we would not be enforcing the settlement agreement, as the two provide different terms, and it is the settlement agreement, not the judgment, that contains the waiver of appellants’ right to appeal. Thus, affirming the judgment would undermine the settlement agreement -- the opposite of the effect respondent seeks.
Alternatively, respondent contends the appeal should be dismissed, because the settlement agreement rendered the appeal moot. Ordinarily, when parties to an appeal settle or compromise the underlying claim, the appeal becomes moot, and should be dismissed. (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1176.) However, the facts of this case are unusual -- the parties entered into the settlement before judgment was entered and before the appeal was taken, but the judgment entered was not upon the settlement agreement. An appeal becomes moot through acts subsequent to the entry of judgment -- and generally not contemplated at the time judgment was entered -- which causes the appeal to be without practical effect. (See Minor v. Lapp (1963) 220 Cal.App.2d 582, 583.) The subsequent acts in this case -- the performance of the terms of the settlement -- were foreseen and intended to determine whether the judgment would be effective as entered, or whether the parties would be entitled to different relief based upon the settlement. Thus, we construe the judgment as a conditional one, dependent upon future events fully contemplated by the parties.
“‘A judgment must be given a construction that will support it if this may be done within reason and the accepted rules of construction.’ [Citations.]” (People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 77.) “Where an ambiguity exists, the court may examine the entire record to determine the judgment’s scope and effect. [Citations.] The court may also ‘“refer to the circumstances surrounding the making of the order or judgment, [and] to the condition of the cause in which it was entered.”’ [Citations.] Subsequent actions by the [rendering] judge may be considered as bearing upon the judgment’s intended meaning and effect. [Citation.]” (Id. at p. 76.)
A controversy may be settled in two stages by means of a conditional judgment; however, “[t]he judgment is usually interlocutory, so that the court renders a final judgment after the conditions are performed or the time for performance has elapsed.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 23, p. 558.) In general, if the judgment is conditional, it is not appealable. (Hayes v. Pierce (1937) 18 Cal.App.2d 531, 533.) The appellate court has no jurisdiction to review orders or judgments that are not appealable. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Thus, it is our duty to inquire into the finality of the judgment from which appeal has been taken. (Degnan v. Morrow (1969) 2 Cal.App.3d 358, 362.) If the judgment is neither final nor appealable, we must dismiss the appeal on our own motion. (Collins v. Corse (1936) 8 Cal.2d 123, 124.) Because the parties did not raise the issue of appealability in their briefs, we invited further briefing on the issue, and ordered appellants to show cause why the appeal should not be dismissed.
Appellants contend the judgment is final and appealable, because it includes orders made appealable by the Probate Code. The right to appeal probate orders is governed by Probate Code section 1300, which includes such interim orders as settling the conservator’s account, approving the conservator’s acts, and directing or allowing payment of costs, compensation or expenses of the conservator or an attorney. (Prob. Code, § 1300, subds. (b)-(f).) The judgment entered November 17, 2005 contains such orders, as the probate court approved respondent’s account, awarded attorney fees to respondent’s counsel, approved compensation for respondent, as well as reimbursement from the estate for sums advanced by respondent, found respondent had not abused her position and refused to remove her. However, such probate orders are not appealable when they are not yet final, due to conditions placed on them by the trial court. (See Estate of Jarman (1958) 160 Cal.App.2d 435, 435-437 [probate court’s attorney fee order conditioned upon executors’ waiver of appeal].)
The California Supreme Court has “articulated the following standard to determine whether an adjudication is final and appealable: ‘It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’ [Citations.]” (Griset v. Fair Political Practices Com., supra,25 Cal.4th at p. 696, quoting Lyons v. Goss (1942) 19 Cal.2d 659, 670.) In other words, a conditional judgment may be final and appealable if it is self-executing and no further judicial act is required, such as where only payment or the ministerial act of entering a dismissal is contemplated. (Taper v. City of Long Beach (1982) 129 Cal.App.3d 590, 605.) Far from being self-executing or requiring no further judicial act, the judgment entered November 17, 2005, contemplated a separate trial before another judge, respondent’s resignation as conservator if appellants prevailed, Judge Meiers’s termination of her jurisdiction, and if necessary, a motion for judgment pursuant to Code of Civil Procedure section 664.6.
Appellants contend the judgment was not conditional because the trial court “obviously” intended the November 17, 2005 judgment to be “the last word on the subject,” as evidenced by Judge Meiers’s statement, “You’re going to have to put the horse back in the barn if the ruling is such that you want to appeal it.” We discern no such intent from the judge’s words, particularly as appellants’ expressed concern was to preserve the right to appeal the judgment, should the settlement terms not be performed. The court and the parties contemplated that, except for the attorney fees awarded, the terms of the judgment would be superseded by the terms of the settlement agreement after further judicial proceedings to be initiated by appellants. Further, Judge Meiers expressly retained continuing jurisdiction over the settlement agreement.
Appellants contend Judge Meiers’s retention of jurisdiction was self-terminating, and terminated automatically March 3, 2006, the date the court set for a status review. Judge Meiers did not state jurisdiction would terminate automatically on that day. She said, “[O]n [March 3, 2006], if the court has heard nothing, the court will -- this department will divest itself of continuing jurisdiction on the settlement agreement . . . without appearance, if the court records reflect resolution of the issues in accordance with the agreement. If not, counsel better appear. I’m figuring by then, it’s all going to be taken care of.” (Italics added.) The record shows no status hearing on that date, and no minute order indicating what, if anything, Judge Meiers did regarding her continuing jurisdiction. Further, all was not “taken care of” by March 3, 2006. The trial in the declaratory relief action was held in April 2006, and judgment granting declaratory relief was not entered until July 2006. So far as the record before us reflects, Judge Meiers retains jurisdiction to this day.
Respondent contends the settlement terms have now been performed, and appellants do not dispute this in their briefs. Appellant Kazazian’s petition for declaratory relief, filed December 2, 2005, recited that the parties entered into a settlement agreement November 16, 2005. Attached to the petition was a copy of the reporter’s transcript of the hearing of that date, reflecting the settlement agreement. The petition recited certain terms of the agreement, including respondent’s promise to resign as conservator in the event of an adverse ruling, and the parties’ mutual promise to “release all claims known and unknown against [one another] as of November 16, 2005.” Judge Stoever’s order after trial states the petition for declaratory relief was filed pursuant to the settlement agreement. He declared the power of attorney invalid, noted that respondent had resigned pursuant to the parties’ stipulation, and appointed appellants as co-conservators.
In oral argument, appellants asserted for the first time that the settlement agreement was not fully performed because the declaratory relief action was not tried within 60 days, suggesting the 60-day period represented a failed condition precedent to the formation of the contract. We need not consider contentions asserted for the first time in oral argument. (Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 472.) Moreover, appellants’ trial counsel made clear that the 60 days related to the perfection of appellants’ appeal, when he told the court: “If worse comes to worse, I’ll just file my notice of appeal within 60 days and then withdraw it.”
Appellants do not dispute that a settlement agreement was entered on the record; nor do they dispute that they agreed to it. Instead, they ask this court to void the agreement due to respondent’s alleged fraudulent concealment, because respondent did not inform them or the court prior to entering into the settlement that she had been charged with 13 felony counts, which appellants contend involved conservatorship assets. Appellants argue that they would not have entered into the settlement had they known of the charges.
To grant appellants’ request would require an evidentiary hearing. “In all cases where trial by jury is not a matter of right . . ., the reviewing court may make factual determinations . . . based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. . . .” (Code Civ. Proc., § 909.) “‘The legislation . . . which gives appellate courts evidence-taking and fact-finding powers . . . does not convert the appellate courts into triers of fact. . . .’” (Hyman v. Haun (1961) 191 Cal.App.2d 891, 898; see also Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1257; Cal. Const., art. VI, § 11.) Not only are we disinclined to conduct a trial on appellants’ rescission request, but we note that an action to set aside a settlement agreement is one in equity (Bank of America v. Greenbach (1950) 98 Cal.App.2d 220, 227), and a party seeking equity must come into court with “‘clean hands.’” (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 446.) Appellants failed to mention the settlement agreement in their opening brief, although they did not deny that it has been fully performed, and they did not challenge its validity until their reply brief.
At oral argument, appellants’ counsel argued for the first time that the concealment of the criminal charges rendered the agreement void, not simply voidable. We need not consider this contention. (See Archdale v. American Internat. Specialty Lines Ins. Co. supra, 154 Cal.App.4th at p. 472.) Moreover, fraud in the inducement renders a contract voidable, not void. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 420.)
Further, appellants admit the charges against respondent had been filed in June 2005, and that Kazazian filed a petition in January 2006, to have respondent removed as conservator due to the criminal charges. The assertion that appellants would not have entered into the settlement had they known of the charges is hardly plausible in light of their going forward in April 2006 on the petition for declaratory relief pursuant to the settlement agreement, with full knowledge of the charges.
We conclude the judgment entered November 17, 2005 remains conditional. Thus, it is not a final judgment subject to appeal, and we must dismiss the appeal.
Respondent requested sanctions in her brief, but in a footnote, indicated she intended to file a motion for sanctions. As no such motion was filed, appellants have not had sufficient notice to permit consideration of the issue here. (See Cal. Rules of Court, rule 8.276(e).) Thus, the issue is best addressed in any motion brought by respondent in the trial court pursuant to Code of Civil Procedure section 664.6.
DISPOSITION
The appeal is dismissed. Respondent shall have her costs.
We concur: EPSTEIN, P. J., SUZUKAWA, J.