Opinion
B189235
4-23-2007
CV PROPERTIES, INC., Plaintiff and Appellant, v. BAHRAM HOJABRI, Defendant and Respondent. ROBERT ABDALLA, Plaintiff and Respondent, v. BAHRAM HOJABRI, Defendant and Appellant.
Schuler & Brown, Daniel E. Hoffman and Sam D. Ekizian for Defendant and Appellant Bahram Hojabri. Mesisca, Riley & Kreitenberg, Dennis P. Riley and Rena E. Kreitenberg for Plaintiff and Respondent Robert Abdalla. Law Offices of Larry E. Wasserman for Plaintiff and Appellant CV Properties, Inc.
NOT TO BE PUBLISHED
SUMMARY
This case involves lawsuits brought by the buyer and the sellers broker in connection with an agreement for the purchase and sale of residential property. The broker settled its lawsuit, stipulating with the seller before trial to the terms of a judgment to be entered in the brokers favor. At the conclusion of a jury trial on the buyers claims for breach of contract, specific performance and fraud, the jury returned a special verdict in the buyers favor containing several inconsistencies. Before the jury was discharged, the parties agreed in open court on terms to be included in a judgment and waived certain irregularities in the special verdict form. The buyer was directed to prepare a judgment. The seller filed objections to the proposed judgment prepared by the buyer. After a hearing, the trial court entered the judgment. The judgment included the terms to which the broker and seller had previously stipulated.
The seller and the broker filed appeals. We conclude that:
(1) The judgment in favor of the buyer was not a stipulated or consent judgment, because there was no meeting of the minds between the parties as to the terms of the judgment. Because the parties did not agree, the trial court erred in entering a judgment which awarded the buyer both specific performance and damages, and the judgment therefore must be reversed. On remand, the buyer may elect specific performance, in which event a new judgment should be entered accordingly. If the buyer does not elect the remedy of specific performance, the court must conduct a new trial on damages.
(2) The broker may not appeal because the broker consented to the judgment and expressly waived its right to appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Bahram Hojabri entered into a written agreement to sell a residential property to Robert Abdalla for $470,000. Abdalla deposited $25,000 into an escrow account. Hojabri eventually refused to proceed with the sale and to authorize the return of Abdallas deposit.
Abdalla sued Hojabri for breach of contract, fraud and specific performance. He sought general and punitive damages, specific performance and attorney fees and costs. Hojabris listing broker, CV Properties, Inc., also sued Hojabri, alleging he breached his agreement to sell the property and it was entitled to damages of $37,600 for the commission due under its listing agreement with Hojabri. The two lawsuits were consolidated. Shortly before trial, CV Properties and Hojabri stipulated to the entry of a judgment in favor of CV Properties in the amount of $37,600 in the event Abdalla prevailed in his lawsuit against Hojabri. A jury trial eventually ensued on Abdallas claims and on a cross-complaint Hojabri filed against Abdalla.
Hojabri asserted a claim against Abdalla for breach of contract, but the claim was rejected by the jury, which found Hojabri did not perform and was not excused from performing material terms of the contract.
The jury was instructed that, to recover damages for breach of the contract, Abdalla was required to prove, inter alia, the difference between the fair market value of the property on the date of the breach and the contract price. With respect to Abdallas fraud claim, the jury was instructed that, assuming fraud was proved, Abdalla could recover, inter alia, the difference between the agreed contract price and the fair market value of the property at the time of trial.
The jury returned a special verdict as follows:
• On the contract claim, the jury found Abdalla and Hojabri entered into a contract; Abdalla performed all or substantially all the contract required him to do; all the conditions required for Hojabris performance occurred; Hojabri failed to perform; and Abdalla was harmed by Hojabris failure. Abdallas damages were found to be:
"Lost Rents: $ -0
Benefit of Bargain: $ 470,000.
Return of Deposit: $ 25,000."
• The jury found the purchase and sale agreement should be specifically enforced.
• On Abdallas fraud claim for inducement to enter into the purchase and sale agreement and intentional misrepresentation, the jury found Hojabri represented that he would sell the property for $470,000, but found the representation was not false and therefore did not answer the further questions on the other elements of a fraud claim. Similarly, on Abdallas fraud claim for false promise, the jury found Hojabri promised Abdalla he would sell the property for $470,000, but also found that when Hojabri made the promise, he intended to perform it.
• The verdict form then instructed the jury to proceed to section E of the form, entitled "Fraud Damages / Malice, Oppression, or Fraud." Question No. 1 of section E asked: "What is the total amount of all damage that was suffered by Robert Abdalla as a result of the actions of Bahram Hojabri upon which you base your findings of liability for Fraudulent Misrepresentation and/or False Promise?" The jury answered: "$527,500." The next question was: "Do you find with clear and convincing evidence in your findings on Intentional Misrepresentation and False Promise that Bahram Hojabri acted with malice, oppression or fraud?" The jury answered "yes."
The verdict was read and all the jurors affirmed it was their verdict. When the court asked if either counsel wished to have the jury polled, Abdallas counsel sought a sidebar, and stated there were "some internal inconsistencies that we need to fix now before we let the jury go." The trial court then saw counsel in chambers. Afterward, outside the presence of the jury, the court stated: "I believe through the good efforts of both counsel, and, of course the clients, that a stipulation is in order. Ill ask counsel for the defense to state the terms of the stipulation." The record thereafter is as follows:
"[HOJABRIS COUNSEL]: Its not really a stipulation. We are agreeing to the, not agreeing but the jury has found in favor of [Abdalla] on breach of contract in the amount of $470,000. Theyve also found that the $25,000 should be returned to [Abdalla] thats currently in escrow. [¶] And the jury, and the court has indicated it would be [ruling] in favor of [Abdalla] regarding specific performance. [¶] There is a stipulation between counsel that there would be no punitive damages and also that [Hojabri] would be waiving any irregularities in the jury verdict form as to the breach of contract and specific performance.
"THE COURT: All right. Is that acceptable with [Abdalla] counsel?
"[ABDALLAS COUNSEL]: Your Honor, just so I can be clear. That the verdict form allows for $470,000 in damages, the $25,000 is a deposit thats being returned, that there will be specific performance on the courts order. That we are waiving any rights to further questioning the jury regarding punitive damage and to proceed on the claim for punitive damages at this time.
"THE COURT: All right. Swear the parties."
Abdalla and Hojabri were sworn by the clerk.
"THE COURT: All right. To [Abdalla], you heard what counsel has stated; is that acceptable to you?
"MR. ABDALLA: What he said, yes.
"THE COURT: What everybody said.
"MR. ABDALLA: Yes.
"THE COURT: The two attorneys.
"MR. ABDALLA: Yes.
"THE COURT: Thats acceptable to you; youve had enough time to discuss it with your counsel?
"MR. ABDALLA: I did, Your Honor.
"THE COURT: You wish the court to accept that stipulation?
"MR. ABDALLA: Yes.
"THE COURT: Counsel joins?
"[ABDALLAS COUNSEL]: Yes, Your Honor.
"THE COURT: And to [Hojabri], you heard what the court has said and what your attorney has said. Are you willing to go along with those terms and conditions?
"MR. HOJABRI: Yes, Your Honor.
"THE COURT: Do you believe youve had enough time to discuss it with your attorney?
"MR. HOJABRI: Yes.
"THE COURT: You want the court to accept the stipulation?
"MR. HOJABRI: Yes.
"[HOJABRIS COUNSEL]: Your Honor, I dont know if it would be proper to call it a stipulation.
"THE COURT: What do you want to call it then?
"[HOJABRIS COUNSEL]: Were accepting the judgment of the court.
"THE COURT: Accepting the judgment of the court. [¶] I amend my comments accepting the judgment of the court and the jury. Would you be willing to do that, sir?
"[ABDALLAS COUNSEL]: And, Your Honor, just so were clear, waiving irregularity in the breach of contract and specific performance.
"THE COURT: Yes. You understand that all?
"MR. HOJABRI: Yes.
"THE COURT: And youre agreeing to it?
"MR. HOJABRI: Yes.
"THE COURT: Counsel join?
"[HOJABRIS COUNSEL]: Yes, Your Honor.
"THE COURT: So ordered. Now then, what do you want me to tell the jury?
"[ABDALLAS COUNSEL]: Bring them back in and thank them for their service and enter the
"THE COURT: Ill ask counsel for [Abdalla] to prepare the appropriate judgment.
"[ABDALLAS COUNSEL]: I will do that, Your Honor."
Two days later, counsel appeared before the court "concerning the matter of the verdict and the judgment to be entered" in the matter. Counsel for Abdalla took the position, based on the parties agreement on the record, that the verdict form should be changed to read:
"We, the jury, . . . find in favor of Robert Abdalla and award him monies in the amount of $470,000, return of $25,000, and specific performance of the property that is the subject of this action."
In response to a question from the court, Abdallas counsel stated the $470,000 was "additional compensation for not having had the property for the time frame that was identified."
Counsel for Hojabri "completely disagree[d] with [Abdallas counsels] rendition of what happened in this matter." He asserted that (1) he had stated in the colloquy two days earlier that there was no stipulation; and (2) Abdalla was not entitled to both contract damages and specific performance, as that would constitute double recovery. He objected to any change in the verdict form, and stated he thought the parties could move forward with posttrial motions and/or appellate review. The court asked counsel his position as to why the parties "put on the record that they agreed to do the things they agreed to do," and counsel responded he did not think it was an agreement or a stipulation. The court stated:
"You havent answered my specific question. [¶] The parties were sworn. The parties agreed to various things on the record. Whether it was a stipulation or not really doesnt concern me. They agreed that the order be what the order was. And the order was that the plaintiff receive back his $25,000 deposit, that he get $470,000 in damages, and he gets specific performance. [¶] That was the agreement provided that [Abdalla] also agreed not to pursue a claim for punitive damages. [¶] That was all put forth on the record. Each counsel was asked whether they approved of that, and each client also under oath indicated they approved of that. [¶] . . . [¶] All right. So now the only thing the court is going to do is, we will enforce the orders that were made in open court where counsel agreed to the orders. Parties agreed to the orders under oath. I dont think that it would be appropriate at this point to change what was agreed to on the record."
The court indicated that the verdict form would remain unchanged and its minute order would reflect the parties agreement. The court then observed that there could be only one judgment, and counsel for Abdalla agreed to incorporate the judgment to which CV Properties and Hojabri had stipulated into the judgment he was preparing. The court concluded by stating "its also noted that on the record that the parties and counsel for both sides did agree that this be the judgment in the matter."
No minute order appears in the record.
Counsel for Abdalla prepared a proposed judgment, which was later entered without change. The judgment does not refer to any stipulation or agreement between Abdalla and Hojabri. It recites that the jury returned a verdict in favor of Abdalla, and that "by reason of said verdict," Abdalla and CV Properties were entitled to judgment. The judgment decreed that:
• Abdalla recover from Hojabri $470,000, plus costs and attorney fees, with interest from the date of entry of judgment.
• The purchase and sale agreement and related escrow instructions for the purchase of the property be performed according to their terms, except that (a) the selling price of $470,000 would be offset by any amounts up to $470,000 at Abdallas discretion, and any amounts used to offset the purchase price would be considered partial satisfaction of the money judgment; (b) any terms for payment of broker commissions were struck and the escrow holder was ordered not to pay any such commissions; (c) escrow was to disburse to Abdalla $25,000 representing the deposit currently held by the escrow company; and (d) the clerk was to execute and notarize the grant deed transferring title to Abdalla.
• According to a stipulation between CV Properties and Hojabri, "which Stipulation was placed on the Courts record on November 16, 2005," judgment was entered in favor of CV Properties in the amount of $37,600, with each side to bear its or his own attorney fees and costs.
Hojabri filed objections, and a hearing was held on December 13, 2005, at which both Hojabri and CV Properties objected to the proposed judgment. The parties respective positions were these:
• Hojabri asserted (1) Abdalla was required to elect either specific performance or monetary damages; (2) the monetary damages of $470,000 were against the law, because Abdalla was entitled only to recovery of his $25,000 deposit plus the difference between the agreed sale price and the value of the property at the time of the breach; and (3) the only stipulation was that no punitive damages would be sought and that Hojabri would waive any irregularities in the jury verdict form as to the breach of contract and specific performance. Hojabri contended his counsel specifically stated on the record that there was no stipulation to the judgment; his right to attack the jurys verdict was never waived; and double recovery and excessive damages are against the law and different from "irregularities in the jury verdict form."
• CV Properties objected to the proposed judgment because it ordered specific performance, but changed the purchase and sale contract to remove the brokers commission. If Abdalla obtained specific performance, CV Properties wanted "to be paid out of that in accordance with the terms of the contract." CV Properties asserted that Abdalla would "take this offset and wipe out any monetary payment through the escrow and then there will be no money paid for the broker."
• Abdallas counsel asserted Hojabri agreed to the judgment, and Abdalla had waived over $500,000 in fraud damages and waived punitive damages, "For what? Nothing? For a grasp of air? Absolutely not." When the court asked Abdallas counsel why Abdalla was entitled to both damages and the property, counsel replied, "Because thats what the case law provides for, thats what the jury awarded, thats what they agreed to on the record." As to the contention that a double recovery would be illegal, Abdallas counsel replied: "Then thats something for them to come back at a later time after judgment is entered and say, listen, its illegal somehow. We agreed to it, but its illegal somehow. [¶] Right now were entering a judgment. And were not going to rewrite this judgment that was agreed to."
The trial court concluded, "All right. Im going to sign the judgment. Well see what happens at the Court of Appeal." Judgment was entered on the same day. CV Properties filed a motion to vacate the judgment under Code of Civil Procedure section 663. Hojabri filed motions for a new trial, for judgment notwithstanding the verdict, and to vacate the judgment. All motions were denied.
CV Properties and Hojabri filed timely appeals, and Hojabri filed a petition for a writ of supersedeas. This court issued an order staying enforcement of the judgment pending disposition of Hojabris appeal.
Abdallas request for judicial notice of the complaint in a lawsuit filed against Hojabri by an attorney who formerly represented Hojabri is denied as irrelevant to the issues on appeal. Abdallas further request, at oral argument, for judicial notice of the contents of a malpractice action filed by Hojabri against counsel who represented him at the trial of this case is likewise denied. The allegation that his lawyer failed to obtain his informed consent "before stipulating to the verdict" does not constitute an admission as to which judicial notice is proper, particularly in light of other allegations in the complaint making it clear the stipulation was "alleged" rather than admitted.
DISCUSSION
I. Hojabris Appeal.
Hojabri contends the judgment should be reversed and the case remanded for a new trial. He argues, as he did below, that Abdalla was awarded a double recovery contrary to California law; Hojabri did not agree to the erroneous judgment; and the damages awarded were excessive and against the law. He also argues misleading jury instructions and a faulty verdict form materially prejudiced him. As will appear, we agree in part. Our conclusions are these:
• The agreement the parties made after the jury rendered its special verdict was not, as Abdalla argues, a" stipulated judgment" or a "consent judgment" that Hojabri cannot appeal. While we would not condone reneging on a settlement agreement entered in open court, defense counsels statements rejecting the term "stipulation," and stating he was "not agreeing" but rather, in effect, acknowledging the jurys findings, suggest rather clearly that the sine qua non of a consent judgment — namely, a meeting of the minds of the parties — did not occur.
• The parties expressly agreed on only two points. Abdallas counsel expressly waived "any rights to further questioning the jury regarding punitive damage and to proceed on the claim for punitive damages at this time." Hojabris counsel expressly waived "any irregularities in the jury verdict form as to the breach of contract and specific performance." Abdallas waiver of punitive damages was of no substance in view of the jurys express finding that, when Hojabri promised to sell the property for $470,000, he intended to perform the promise. And Hojabris waiver of "irregularities" is equally meaningless in the absence of any indication of the meaning of the term "irregularities in the jury verdict form."
• Under California law, a plaintiff may not be awarded both specific performance and damages, to the extent such an award would constitute a double recovery. (Rogers v. Davis (1994) 28 Cal.App.4th 1215, 1220.) Thus, in the absence of an agreement between the parties, Abdalla must choose his remedy: specific performance or contract damages. If he chooses damages, a new trial is necessary, because the jurys verdict on contract damages was not supported by any evidence presented at trial.
We turn now to a more detailed explanation of our conclusions, addressing first the "stipulated judgment" and then turning to the double recovery issue.
A. The "stipulated judgment."
Abdalla argues the judgment was a stipulated or consent judgment to which Hojabri agreed, and is therefore not appealable. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400 (Norgart).) We cannot agree.
California law, while not defining the term "consent judgment," understands the phrase to refer "to a judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally . . . ." (Norgart, supra, 21 Cal.4th at p. 400.) "In a stipulated judgment, or consent decree, litigants voluntarily terminate a lawsuit by assenting to specified terms, which the court agrees to enforce as a judgment." (California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 663 (California State Auto. Assn.).) The rule that a party may not appeal a consent judgment applies to "cases in which the parties intended a full and final settlement of their dispute . . . ." (Norgart, supra, 21 Cal.4th at p. 401.)
In this case, the parties, apparently to avoid either reinstruction of the jury and further deliberations or a mistrial, purported to "[accept] the judgment of the court" and waived "any rights . . . to proceed on the claim for punitive damages" and "any irregularities in the jury verdict form as to the breach of contract and specific performance." In doing so, however, they obviously came to no meeting of the minds as to what either party meant by the statements made on the record before the trial court. The only points on which it is clear the parties "agreed" are the waivers of punitive damages and irregularities in the jury verdict form. Neither point is helpful in determining whether the parties "intended a full and final settlement" because neither has any substance. Abdalla could not have obtained punitive damages in any event because the jury found no false representation. And no one can say with assurance what is meant by "irregularities in the jury verdict form" on breach of contract and specific performance. No other agreement is discernible from the colloquy, in which both parties were sworn and acknowledged their agreement with "[w]hat everybody said." The defense acknowledged the jurys findings and, after suggesting it would be improper to call it a stipulation, stated "Were accepting the judgment of the court." We cannot view these statements as evincing an intent "to settle their dispute fully and finally . . . ." (Norgart, supra, 21 Cal.4th at p. 401.)
Abdalla insists Hojabri agreed to the damages award in exchange for obtaining "protection from a large fraud award" and from punitive damages. We can discern no basis for this claim. However confused the jury may have been when it assessed fraud damages and found Hojabri acted with "malice, oppression or fraud," it clearly found that, when Hojabri promised to sell the property for $470,000, he intended to perform the promise. Absent a false promise or misrepresentation, no fraud can be found, no matter what the jury may have thought of the oppressiveness of Hojabris subsequent conduct in refusing to perform his promise. Nor could any punitive damages be awarded. (Crogan v. Metz (1956) 47 Cal.2d 398, 405 [punitive damages may not be awarded in an action based on a breach of contract even though the defendants breach was willful or fraudulent].) Consequently, Abdallas assertion in his brief that Hojabri "faced close to a $1,000,000.00 judgment and the possibility of a punitive damage phase because the jury found [he] had acted with malice, oppression and fraud" is not consonant with any reasonable view of the facts. Similarly, Abdallas repeated assertions that the jury verdict was for a total damage award of $997,500 and that Hojabri knew "there was a significant risk of exposure to a nearly one million dollar damage award against him," as well as punitive damages, are unfounded as a matter of law. Abdalla could never recover both fraud damages of $527,500 and contract damages of $470,000, because he was not harmed twice. Indeed, Abdallas own counsel, in closing argument, pointed this out to the jury.
In sum, while the parties were sworn, and the trial court apparently believed they were agreeing to the terms of the judgment, the transcript of the colloquy among the court, counsel and the parties on its face simply belies the meeting of the minds that is necessary to any agreement. Moreover, if the parties intended to enter into a final settlement or a consent judgment not subject to appeal, as Abdalla now contends, they could easily have so stated on the record. In fact, however, nowhere in the colloquy preceding the judgment was the word "settlement," final or otherwise, uttered by anyone. Similarly, nowhere in the colloquy does anyone state that the right to appeal the judgment is being waived. In short, we find no support for the proposition that the parties in this case entered into a nonappealable consent judgment or otherwise agreed on the record before the trial court to a final settlement of their dispute.
B. The double recovery issue.
Under California law, a plaintiff can request alternate remedies — specific performance or damages — in a complaint, "but may not be awarded both to the extent such an award would constitute a double recovery, e.g., a plaintiff/purchaser of real property cannot receive both the property itself by a specific performance decree and also damages measured by payments he or she made towards the purchase price." (Rogers v. Davis, supra, 28 Cal.App.4th at p. 1220.) In this case, the judgment entered by the trial court does exactly that: it awards Abdalla both specific performance and, in addition, $ 470,000 — the same amount the jury found to be the "benefit of bargain" damages on Abdallas contract claim. This is plainly a double recovery: Abdalla receives Hojabris house, and he does not have to pay for it because he also receives the contract price in damages. California law does not permit this kind of recovery. (Ibid.)
In concluding the judgment provides an improper double recovery, we are not suggesting that Abdalla and Hojabri could not have agreed, in a proper settlement or consent judgment, to terms under which Abdalla would obtain both specific performance and damages in any amount agreeable to the parties. As we have seen, however, the parties did not so agree, and the judgment effectively incorporated an erroneous rule of law, requiring Hojabri to sell his house to Abdalla at the contract price and, in addition, to pay Abdalla the contract price in damages, with the result that Abdalla obtains Hojabris house for nothing.
Accordingly, the judgment awarding both remedies must be reversed, and Abdalla must choose his remedy. The proper measure of damages for breach of an agreement to sell real property is "the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach . . . ." (Civ. Code, § 3306.) The agreed price was $ 470,000, but Abdalla has identified no evidence establishing the value of the property at the time of the breach. Consequently, if Abdalla elects damages rather than specific performance, a new trial is necessary, because the jurys verdict on contract damages was unsupported by any evidence adduced at trial.
Civil Code section 3306 provides, in its entirety: "The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach, the expenses properly incurred in preparing to enter upon the land, consequential damages according to proof, and interest."
II. CV Properties Appeal.
CV Properties moved to vacate the judgment under section 663 of the Code of Civil Procedure. Section 663 permits the trial court to set aside a judgment that was based on the courts decision, if there was an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts" that entitles the party to a different judgment. The trial court did not err in denying CV Properties motion to vacate the judgment.
Code of Civil Procedure section 663 states in full: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
Unlike the circumstances as between Abdalla and Hojabri, CV Properties and Hojabri entered into a true stipulated or consent judgment, expressly stipulating to the terms of the judgment to be entered in favor of CV Properties. On November 16, 2005, CV Properties, Hojabri and their counsel appeared in court. Counsel for CV Properties stated as follows:
"Plaintiff CV Properties and defendant Bahram Hojabri have entered into a settlement on the following terms: If the verdict comes in for the plaintiff Mr. Abdalla, then a judgment may be entered in favor of CV Properties, Inc. in the amount of $37,600. [¶] If the verdict from this jury comes in for defendant Bahram Hojabri, a judgment will be entered in favor of CV Properties, Inc. in the amount of $10,000. [¶] Each side will bear their own fees and costs. I will be able to submit a judgment. Ill submit to the court basically two judgments under each of those alternatives which can be signed upon rendition of the verdict in this case. [¶] My client will make himself available as a witness upon prior days notice to either side. [¶] And each side will be waiving right to trial, right to appeal, right to make a motion for new trial. And that would not only apply to the case between them, but also the judgment will be rendered based on the verdict and would not make any difference as to whether either side appealed or made a motion for new trial." (Emphasis added.)
Later, counsel added "one other term to this, that the 37,600 applies if theres a verdict for the plaintiff or if theres a settlement of the case before a verdict." He also requested the court to "reserve jurisdiction to enforce the settlement under [Code of Civil Procedure section] 664.6," a request the court granted. Both parties were sworn and agreed to the terms stated by counsel for CV Properties. The president of CV Properties was expressly warned by the court and acknowledged his understanding that "theres no turning back."
In short, the record clearly demonstrates CV Properties and Hojabri entered into a stipulated or consent judgment which may not be appealed, that is, a "judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally . . . ." (Norgart, supra, 21 Cal.4th at p. 400.) The parties "voluntarily terminate[d] [their] lawsuit by assenting to specified terms . . . ." (California State Auto. Assn., supra, 50 Cal.3d at p. 663.) They expressly waived the right to appeal. CV Properties was necessarily aware that Abdalla sought specific performance in his lawsuit, but made no effort to reserve the rights it now claims it should have in connection with specific performance of the contract between Abdalla and Hojabri. Accordingly, the rule that a party may not appeal a consent judgment applies, as CV Properties and Hojabri "intended a full and final settlement of their dispute . . . ." (Norgart, supra, 21 Cal.4th at p. 401; see also Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 13-14 [motion to vacate a judgment under Code of Civ. Proc., § 663 is not available against a stipulated judgment; "section 663, by its own terms, applies only to a decision of the court based upon facts," and a stipulated judgment does not rest upon facts established by evidence].)
CV Properties insists the trial court had no authority "to rewrite the contract or escrow instructions" in granting specific performance, effectively "wip[ing] out CV Properties, Inc.s ability to be paid from the proceeds of the sale contrary to the contract . . . ." The short answer to this claim is that, as we have seen, CV Properties cannot appeal from the judgment to which it consented. Even if CV Properties could appeal, none of the cases CV Properties cites support its claim that the trial court had no power to enter the decree it entered. The performance required by a decree of specific performance "`need not be identical with that promised in the contract "and " `may be granted on such terms and conditions as justice requires. " (Rogers v. Davis, supra, 28 Cal.App.4th at pp. 1221-1222, citation omitted.)
DISPOSITION
The judgment is affirmed as to CV Properties. The judgment in favor of Abdalla and against Hojabri is reversed and the cause is remanded to the trial court with directions to vacate the judgment and issue an order requiring Abdalla to elect between the remedies of specific performance and contract damages. If Abdalla elects specific performance, the court is directed to enter a new judgment accordingly, and if Abdalla elects contract damages, the trial court is directed to conduct a new trial on the issue of damages only. All parties are to bear their own costs.
We concur:
RUBIN, Acting P. J.
FLIER, J.