Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC293937. Haley J. Fromholz, Judge.
Winston & Strawn, Devan D. Beck, Kristina M. Diaz, and Anthony Solana, Jr., for Defendants and Appellants.
Zakariaie & Zakariaie, Jack M. Zakariaie and Nilou A. Zakariaie for Plaintiffs and Respondents.
ASHMANN-GERST, JUDGE
Appellants Mohamad Siry and Siry Investment, L.P., challenge a trial court order and judgment compelling them to refinance certain real property pursuant to the terms of a settlement agreement entered into between appellants and respondents.
Respondents include Saeed Farkhondehpour (Farkhondehpour), an individual and trustee of the 1993 Farkhondehpour Family Trust; Morad Neman (Neman), an individual and trustee of The Neman Family Irrevocable Trust and the Yedidia Investments Defined Benefit Plan; 416 S. Wall Street Partnership, L.P.; the 241 E. 5th St. Partnership, L.P.; the 326 East Boyd Street Partnership, L.P.; the 300 S. Los Angeles St. Partnership, L.P.; the 350 South Los Angeles St. Partnership, L.P.; the 1135 S. L.A. Street, LLC; and 416 South Wall Street, Inc.
Because substantial evidence supports the judgment, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Litigation is commenced; the parties settle their dispute
Appellants and respondents are partners in the 241 E. 5th St. Partnership, L.P. (the partnership), a small California limited partnership, which owns a piece of commercial property located at 241 E. 5th Street in Los Angeles. A dispute arose, and on April 14, 2003, respondents filed a complaint against appellants, alleging causes of action for breach of contract, fraud, negligent misrepresentation, specific performance, quiet title, injunction, declaratory relief, and constructive trust. Appellants responded by filing a cross-complaint, alleging breach of contract and breach of fiduciary duty and seeking an accounting. Specifically, appellants disputed whether respondents “had properly accounted for the capital accounts in the 241 E. 5th St. Partnership, L.P.” Among other things, appellants claimed that “there appeared to be inappropriate distributions” to DTLA Construction and Maintenance (DTLA), an entity owned in part by Farkhondehpour.
After a host of procedural maneuverings, by September 2006, only the cause of action for an accounting was left, and that issue was set for trial. On September 5, 2006, the parties settled their dispute.
The parties executed a formal settlement agreement on September 21, 2006. At paragraph 2, the parties agreed “that accountants Carl Mandelblatt and Sam Varon . . . shall re-allocate 2002, 2003 and 2004 income and expenses of the [partnership] on the [p]artnership’s books and accounts as if DTLA . . . did not exist.” At paragraph 6, the parties agreed “that after making the adjustments agreed to in paragraph 2 above, [respondents] shall charge their [partnership] capital accounts for withdrawals sufficient to return their capital accounts to their proportionate partnership percentage as of December 31, 2006.” At paragraph 10, the parties agreed “that after the adjustments in paragraphs 2 and 6 above have been completed . . . [appellants] will use reasonable efforts to assist in the refinancing” of the property. At paragraphs 11 and 12, the parties agreed to provide the identified accountants with the partnership’s general ledger for all accounts for January 1, 2005, through August 31, 2006, as well as for all profit and expense accounts for the calendar years 2002, 2003, and 2004.
Pursuant to a stipulation of dismissal and the settlement agreement, the action was dismissed with prejudice. The trial court retained jurisdiction to enforce the settlement agreement as a judgment, pursuant to Code of Civil Procedure section 664.6.
Efforts to comply with the terms of the settlement agreement
The parties disagree regarding whether each complied with the terms of the settlement agreement. According to respondents, they repeatedly requested that appellants execute and provide the necessary documents required for the processing of a new loan. However, appellants ignored those requests and failed to use reasonable efforts to assist in the refinancing of the property.
Thus, respondents’ accountant, Mr. Mandelblatt, prepared an accounting, which was forwarded to appellants’ counsel. Respondents’ counsel asked that Mr. Varon provide comments to Mr. Mandelblatt’s accounting. Although Mr. Varon responded on February 21, 2007, he failed to comment or otherwise address the accuracy of the adjustments made by Mr. Mandelblatt.
Appellants provide a different rendition of what occurred. According to them, their accountant, Mr. Varon, contacted Mr. Mandelblatt in order to discuss and agree on the necessary adjustments to the partners’ capital accounts in order to proceed with the financing of the partnership’s property. Mr. Mandelblatt provided incomplete and curt responses to Mr. Varon’s inquiries. Then, on November 20, 2006, Mr. Varon sent a memorandum to Mr. Mandelblatt outlining his proposed adjustments to the partners’ capital accounts. Mr. Mandelblatt, however, never provided a substantive response to Mr. Varon’s proposal.
Respondents’ ex parte application to enforce settlement agreement
On February 28, 2007, respondents moved ex parte to enforce the settlement agreement. They asked the trial court to order appellants “to comply with paragraphs 10 and 16 of the [s]ettlement [a]greement by executing the documents necessary to be executed for re-financing. Specifically, [appellants] should be ordered to execute the Resolution and Credit Authorization and deliver same to [respondents’] counsel and to execute and deliver all such documents and instruments as may be necessary and appropriate for refinancing of the property.”
The trial court declined to hear the matter ex parte. Instead, it was set for hearing on March 21, 2007.
Appellants’ motion to enforce settlement agreement
Meanwhile, appellants filed a cross-motion to enforce the settlement agreement. They sought an order compelling respondents to produce a complete and detailed version of the partnership’s general ledger and adjustment of the partners’ capital accounts.
In so arguing, appellants asserted that the settlement agreement required Mr. Varon and Mr. Mandelblatt to “jointly make the adjustments to the partners’ capital accounts.” Moreover, appellants claimed that Mr. Varon could not engage in the analysis required because respondents refused to provide him with the information and documentation that he required in order to adjust the capital accounts.
Appellants’ motion was set for hearing on March 21, 2007.
Hearing on the parties’ motions to enforce settlement agreement
On March 21, 2007, the trial court heard both motions. The matter was taken under submission, and on March 22, 2007, it issued its order, granting respondents’ motion and denying appellants’ motion.
Regarding appellants’ request for a complete general ledger, “[appellants’] appear to concede that on March 13, 2007, [respondents] did provide what appears to be a complete general ledger of the [partnership] through December 31, 2006.” To the extent appellants were requesting ledgers beyond the years 2003 through 2005 and up to August 31, 2006, the trial court found that the ledgers for only those years specified in the settlement agreement (2003 through August 31, 2006) were necessary.
The trial court also rejected appellants’ assertion that respondents “unilaterally adjusted the partners’ capital accounts.” In so finding, the trial court noted that “[t]he stated purpose of the accounting and the adjustments appear[ed] to be to ‘allocate 2002, 2003 and 2004 income and expenses of the [partnership] on the [p]artnership’s books and accounts as if DTLA . . . did not exist’ and for ‘Farkhondehpour and Ne[]man [to] charge their [partnership] capital accounts for withdrawals sufficient to return their capital accounts to their proportionate partnership percentage as of December 31, 2006.’” Thus, the trial court found the purpose of Mr. Varon’s various inquiries of Mr. Mandelblatt unclear.
Furthermore, the trial court did not find support for appellants’ assertion that the adjustments, which paragraph 6 of the settlement agreement required, had to be made jointly.
Finally, the trial court ordered the parties to proceed with the refinancing of the property, as requested by respondents in their motion.
Judgment was entered, and this timely appeal ensued.
DISCUSSION
I. Standard of review
As the parties agree, the appropriate standard of review is substantial evidence. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)
II. Substantial evidence supports the trial court’s judgment
Substantial evidence supports the trial court’s judgment. The settlement agreement required appellants to assist respondents in the refinancing of the subject property. Appellants did not do so. Specifically, they did not execute and provide the necessary documents required for the processing of a new loan. This evidence adequately supports (1) the trial court order compelling appellants to comply with the terms of the settlement agreement by completing the requisite documents for the refinancing of the property, and (2) the judgment.
Respondents argue that because appellants only cite to their own evidence in their opening brief, they have waived their appeal on the grounds of the lack of substantial evidence. We elect to reach the merits of this appeal.
In attacking the trial court’s judgment, appellants claim that the settlement agreement required the parties’ respective accountants to make a joint adjustment to the capital accounts before appellants were obligated to assist respondents with the refinancing of the subject property. That did not occur. Instead, respondents wrongfully unilaterally adjusted the partners’ capital accounts. We cannot adopt appellants’ position.
As a preliminary matter, it is uncertain whether the settlement agreement required Mr. Varon and Mr. Mandelblatt “to agree on the accounting and corresponding adjustments to the partners’ capital accounts.” As set forth above, paragraph 2 of the settlement agreement simply requires the parties’ accountants to reallocate “2002, 2003 and 2004 income and expenses of the [partnership] . . . as if [DTLA] did not exist.” It does not mandate that the accountants agree and prepare a joint reallocation.
However, paragraph 6 of the settlement agreement provides that “after making the adjustments agreed to in paragraph 2 above,” (italics added) Farkhondehpour and Neman would charge their partnership capital accounts “for withdrawals sufficient to return their capital accounts to their proportionate partnership percentage as of December 31, 2006.” At best, this language is ambiguous as to whether Mr. Varon and Mr. Mandelblatt were required to reach some sort of agreement regarding the adjustments. While it could support appellants’ interpretation that the accountants had to agree to certain adjustments, it could also merely confirm the parties’ agreement that adjustments were required.
But, we need not resolve this issue. Even if the parties’ accountants were required to agree, appellants prevented the accountants from reaching any agreement. Quite obviously the parties had communication problems following execution of the settlement agreement. As a result, respondents asked their accountant, Mr. Mandelblatt, to prepare an accounting, and respondents forwarded that accounting to appellants for their (and their accountant’s) review. Appellants and their accountant never responded to or commented on respondents’ accounting. Thus, through no fault of respondents, it was impossible for the parties’ accountants to reach an agreement regarding the adjustments.
In explaining their actions and defending their position on appeal, appellants focus upon Mr. Varon’s efforts to obtain information from respondents, information which Mr. Varon claimed he needed to conduct an accounting and documents which respondents refused to turn over to him. They claim that Mr. Varon could not perform an accounting or otherwise comment upon Mr. Mandelblatt’s proposed accounting absent the requested information. As the trial court found, Mr. Varon was seeking information that was beyond the scope of the settlement agreement. For example, while the settlement agreement only contemplated reallocations pertaining to DTLA for the years 2002, 2003, and 2004, Mr. Varon requested information and documents pertaining to expenditures in 2005 and 2006. We will not allow appellants to rely upon their improper expansion of the settlement agreement to avoid compliance with its terms.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.