Opinion
B222402
08-04-2011
MANUFACTURERS WAREHOUSE et al., Plaintiffs and Respondents, v. RICHARD BATISTELLI, Defendant and Appellant.
Jeffer Mangels Butler & Mitchell, Neil C. Erickson and Paul A. Kroeger for Plaintiff and Respondent. Robert L. Kern and Darla P. Gretzner for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC097910)
APPEAL from an order of the Superior Court of Los Angeles County, Linda K. Lefkowitz, Judge. Affirmed.
Jeffer Mangels Butler & Mitchell, Neil C. Erickson and Paul A. Kroeger for Plaintiff and Respondent.
Robert L. Kern and Darla P. Gretzner for Defendant and Appellant.
This is an appeal from an order enforcing a Code of Civil Procedure section 664.6 settlement agreement. We find no error and affirm the order of the trial court.
FACTUAL AND PROCEDURAL SUMMARY
The underlying dispute is one of several that developed between members of the Batistelli family. Attilio and Carmen Batistelli, husband and wife, were the settlors of several family trusts, only some of which are involved in this lawsuit. They had five children: Joseph A. Batistelli, Leo A. Batistelli, Richard W. Batistelli, Christina D. Zager and John M. Batistelli. Of these, only the first four are involved in the present litigation. Christina Zager is the wife of Gary Zager, who is the sole owner of Manufacturers Warehouse, the respondent on this appeal. Chris Zager, the son of Christina and Gary, is President of Manufacturers Warehouse. Richard Batistelli is the appellant.
For simplicity, we use only the first name rather than the full name of persons who share surnames.
The Batistelli Family Shelter Bypass Trust (Bypass Trust or Trust) is one of the entities created by the settlors. The settlors were the original trustees. After Attilio's death, the children, other than John, became co-trustees. (The full trust instrument of this trust is not part of the record on appeal, but its pertinent provisions are sufficiently described, and are undisputed, to enable our discussion here.) The trust divided assets and entitlements into several "shares," each designated for Carmen or designated children. In February 2006, at a time when Carmen was ill and in need of medical and related support, the four co-trustees entered into an agreement with respect to the Bypass Trust.
That agreement acknowledged: that Carmen is the income beneficiary of the trust and the co-trustees were residuary beneficiaries (par. 1); that Share B of the Trust will be invested in commercial property at 707 Pine Street in Santa Monica (par. 5); that principal and income accounts will be maintained for each of Shares A and B (par. 6); and that the co-trustees are confident that the investments referred to in the agreement (relating to the Pine Street property and a property in Riverside) do not jeopardize their responsibility to meet Carmen's income needs then and in the future and in the unlikely event she should need access to the income or principal of the trust, that need can be satisfied by equal withdrawals from Shares A and B (pars. 7 and 8).
Most important for purposes of this appeal, the agreement provided that upon Carmen's death the Trust assets shall be distributed, first, in accordance with the provisions of the trust, and second, by allocating assets of Share A evenly between Joseph and Leo, and Share B evenly between Richard and Christina (or their respective issue if they are deceased). (Par. 9.)
The investment in the Santa Monica property, referred to in the amendment to the Bypass Trust, was accomplished by the creation of a limited partnership which would own that property. Exhibit A to the agreement sets out the partnership shares: Manufacturers Warehouse, the respondent on this appeal and the general partner of the partnership, held a 1 percent interest. The other 99 percent was distributed as follows: 54 percent to the Bypass Trust, 20 percent to Richard and Dawn Pion, 4 percent to Christopher Zager (the son of Christina and Gary), and 21 percent to Christina and Gary.
Paragraph 10(i) of the partnership agreement provided that upon Carmen's death "the Limited Partner interest in the Partnership owned by the Bypass Trust shall be automatically distributed, in equal shares, to Richard Batistelli and Christina Zager (such Transfer shall be referred to as the 'Automatic Transfer'). As a result of the Automatic Transfer, the Bypass Trust will cease to be a Limited Partner of the Partnership and will have no further interest in the Partnership. Richard Batistelli shall thereupon be admitted as a Limited Partner, with a Participation Percentage of 28 [percent], and the Participation Percentage of Christina Zager shall be increased by 26 [percent]."
Disputes arose with respect to the family trusts, eventually leading to a lawsuit by Joseph. He brought a petition to "interpret and/or reform" terms of one of the Bypass Trusts, together with a petition to declare that doing so would not invoke operation of a no contest provision in the trust. The trial court ruled that specific provisions of the proposed petition would not violate the no contest provision, but others would. An appeal was filed from that decision. The appeal eventually was dismissed in light of a settlement reached under the auspices of this court's mediation program. That settlement is central to the present appeal.
We take judicial notice of the appellate record in that probate case, Joseph Batistelli v. Christina A. Zager, B209391.
The parties to the appeal were the co-trustees of the Bypass Trust, and the trust itself. Gary Zager was brought into the settlement discussions so that a comprehensive agreement could be reached. The agreement which, in the main, was handwritten, provides:
IT IS HEREBY STIPULATED, BY AND BETWEEN THE PARTIES, THAT this matter is settled pursuant to the following terms and conditions:
The parties agree to resolved [sic] the appeal on the above numbered case, and their disputes in the case of Manufacturers Warehouse et al. v. Batistelli, and related cross-actions, LASC Case No. SC097910 as follows:
Trusts [sic: Trust's] interest in
1. Real Property (commonly known as 707 Pine St., Santa Monica) and limited partnership interest to be sold by the trustees to the remaining General [and] Limited partners for the sum of $300,000. All parties to cooperate in the execution of all documents necessary to complete the transaction. Sale proceeds to be allocated to "Share B" of the trust. "Share B" to be responsible for any capital gain taxes from the sale, but this shall be offset by any trust capital losses.
2. The parties agree to retain an institutional trustee following completion of the Real Prop. transaction in #1 above and after a Request for Dismissal with prejudice has been filed on both actions.
3. Any refunds from the IRS related to "Share A" tax payments are to be credited "Share A."
4. All trustees [and] their children, for themselves and any minor issue, shall execute a Waiver of Accounting related to all trusts, including the Dynasty trust.
5. The parties agree that "Share A" is for the benefit of Joseph [and] Leo Batistelli; and "Share B" is for the benefit of Christina Zager and Richard Batistelli upon the death of Carmen Batistelli; and reaffirm the "Agreement of the Co-Trustees" dated 2-14-04, and 2-5-06.
6. The Trustees agree that this agreement resolves all issues and disputes for past acts between the 4 trustees, including claims related to exemption [and] 1031 equalization.
7. This agreement may be introduced into evidence under Evid. Code [section] 1123.
8. Richard Batistelli agrees that no later than upon the death of Carmen Batistelli, Richard will repay the trust for any loans made to him by the trust.
9. "Share C" assets of the Batistelli Family Shelter Bypass Trust will be used before "Share A" or "Share B" assets for the care and support of Carmen Batistelli in the unlikely event that this Trust's assets need to be used for her care.
10. The parties acknowledge that the amount of assets in "Share A" [and] "Share B" are not equal. Upon the death of Carmen Batistelli, the division of trust assets will include "Share A" to Joseph and Leo, and "Share B" to Christina and Richard. The distribution of "Share A" and "Share B" will occur after division of the other trust assets pursuant to the trust.
11. The trustees agree that from the date of this agreement, and going forward, all loans from or assets from the Dynasty trust used to provide care, support, or maintenance for Carmen Batistelli, shall be accounted for, and the Dynasty trust will be repaid in full out of the proceeds of the Survivor trust, and if those assets are not sufficient, from the Bypass trust, in accordance with Paragraph 9 above. All trustees consent to said loans or assets being used, in a
reasonable amount, to provide care, support, or maintenance for Carmen Batistelli.
[final page a printed form with handwritten changes where indicated in italics]
2. The Trustees and signatories below agrees [sic] to accept said sum as payment in full of all (his/her/their) claims, known or unknown, arising from the events described in the complaint with the knowledge that (he/she/they) will be barred from proceeding against the Defendant(s) in the future regardless of what might happen.
3. Each party will bear its own court costs and attorney fees.
4. Parties shall execute a long form mutual releases [sic] of all claims and dismiss all claims, counter claims, and cross complaints as against all parties.
5. This settlement may be enforced pursuant to California Code of Civil Procedure section 664.6 in the Superior Court of Los Angeles County. (If parties to pending litigation stipulate, in writing, for settlement of the case, or part thereof, the Court, upon motion, may enter judgment pursuant to the terms of the settlement.)"
The settlement agreement was signed by each of the four co-trustees, as such and as individuals, as well as by Christina's attorney and by the attorney for the Batistelli brothers. The agreement is not dated but apparently was made during the course of the mediation, on December 2, 2008.
On December 15, 2008, the Batistelli brothers delivered signed conveyances of their interests to the partnership, as required by the settlement agreement. On January 14, 2009, respondent's counsel wrote counsel for the Batistellis stating that they were about to record the grant deeds conveying interests to the partnership. The next day Carmen Batistelli died. Hearing no objection from the Batistellis, the deeds were recorded on January 22, 2009.
Two complications then arose. The first was the problem respondent encountered in obtaining the financing to pay the $300,000 purchase price. The real estate market had become depressed and the lending institution (First Federal Bank of California) ceased making commercial loans, causing Gary to search for another lender in order to raise the money required to buy out the Bypass Trust interest in the partnership. The other problem was that, in order to complete the loan, documentation about the selling partners was required and was complicated by the existence of a recorded lien against Richard for unpaid child support.
Since the funds for the Pine Street property were to go into the Share B account established by the Bypass Trust, for the benefit of Richard and Christina, their shares were, respectively 28 percent and 26 percent, so that the $300,000 was to be divided proportionally, resulting in an amount due Richard of $155,550. The remaining amount, $145,450, due Christina, Gary's wife, apparently was to be handled by a check to her; no issue is raised with respect to payment. A cashier's check for the amount due Richard was mailed to his counsel on September 2, 2009, along with final documents required to complete the settlement. The check was not negotiated nor were the documents executed.
Upon the alleged failure of the Batistelli brothers to make the capital contribution to the limited partnership called for under the partnership agreement, Manufacturers Warehouse, in April 2008, sued for specific performance, breach of contract and declaratory relief. The complaint was amended in June 2008 by a first amended complaint. The Batistellis filed a cross-complaint for damages and a declaration that the partnership agreement was invalid or unenforceable, and for breach of fiduciary obligations, in October 2008. Efforts to join this action with the probate proceeding, as related cases, were rejected by the trial court. The complaint and cross-action were answered and became at issue.
When it was evident that the final documents necessary to complete this aspect of the settlement agreement would not be completed by the Batistellis, Manufacturers Warehouse, as general partner of the Pine Street partnership, brought a motion to enforce, with supporting declarations. The notice of motion was filed in October, 2009. It was opposed with opposing declarations the following month. The motion was heard and granted, with modification, in December 2009.
The court ordered that the $300,000 sale proceeds for the partnership interest in Manufacturers Warehouse be placed in Share B of the Bypass Trust, further disposition to be made by the probate court or by an institutional successor trustee, as provided in the settlement agreement. The court rejected an argument that it should allocate these proceeds directly to Christina and Richard since Carmen had died, triggering the automatic transfer provision of the Bypass Trust, and the resulting termination of the Trust's interest in the partnership. The court reasoned that, while the Trust may no longer have an interest in these proceeds in its own right, there was no showing that the Trust had been dissolved, and the allocation to Share B was in keeping with the express terms of the settlement agreement.
This appeal followed.
DISCUSSION
A
Richard's first argument is that the mediated settlement agreement does not supersede the 2006 amendment to the Bypass Trust. As a result, he contends, he is not bound by the provision in the settlement that effectively awards him $155,500 for his share of the Pine Street property. He argues that the amendment provided for an allocation of shares in the partnership upon Carmen's death, and that "[t]he purported settlement agreement was executed in order to benefit the decedent and when she died the purpose for such agreement ended."
There is no support for that position. Carmen was ill and in need of medical and related assistance when the amendment was agreed to in 2006, and presumably that was still true when the settlement agreement was made. The amendment includes provisions specifically recognizing the need to provide for Carmen's needs. But there is nothing in it, nor any evidence cited in the record, to support the conclusion that the focus of the agreement was to assure that Carmen's needs were met. Instead, it is plain from the face of that agreement as well as its context in the trust probate proceedings, that it was aimed at an overarching settlement of the family disputes concerning the Trust and the Pine Street property. Carmen's illness and medical condition were well known; if it were intended that the provision for buying out the interests of Christina and Richard in the limited partnership was intended to be contingent on anything, that intention could have been and doubtless would have been expressed. It was not.
It is true that the settlement agreement did not modify the automatic transfer provision of the 2006 amendment. That is the reason the trial judge granted the motion to enforce the settlement as she did: by providing that the proceeds from the buyout would be placed in the Share B trust, which was for the benefit of Christina and Richard, to be dealt with in a probate proceeding or by an institutional successor trustee, rather than being paid directly to them.
Richard also argues that the trial court ruling "improperly intruded into the trust disputes involving the family as individuals (over which it had no jurisdiction). . . ." Far from intruding into trust disputes, the order specifically honors probate jurisdiction by providing for distribution of the sale proceeds by a probate proceeding or by an institutional successor trustee, as specifically provided in the trust amendment.
B
Richard argues, next, that Manufacturers Warehouse breached the "purported" settlement agreement by recording the Batistelli deeds, furnished pursuant to the settlement agreement, and "then waiting months more to make only a partial offer of payment." And, he claims, even that was unenforceable by Manufacturers Warehouse because it was not a party to the settlement.
The argument is not supported by the record. The signed conveyances were delivered on December 15, 2008 and on January 14, 2009, Manufacturers Warehouse thought financing was imminent with First Federal Bank of California, with which arrangements already had been made, and the Batistellis were informed that the deeds would be recorded. After a week went by without objection, the deeds were recorded. No specific objection was raised until the Batistellis filed opposition to the motion to enforce, on December 4, 2009. In the interim there had been four hearings on the motion to enforce, and no objection to the recording was raised by the Batistellis at any of them. Also in the meantime, the real estate market changed for the worse, and a problem was presented because of a recorded lien against Richard for unpaid child support. Chris, the president of Manufacturers Warehouse, took the position in a July 21, 2009 letter, that Carmen's death triggered the automatic transfer provision of the trust amendment, so that a direct payment to Richard of his share of the $300,000 sales price was in order. A cashier's check was sent to him in that amount ($155,550) which, as we have seen, was not negotiated.
There is no "time is of the essence" provision in the settlement agreement, and in its absence courts imply a condition that payment be made within a reasonable time. That fact does not end the inquiry about interest. Civil Code section 1657, upon which Richard relies provides that generally the time for performance where no time is specified in the agreement, is a reasonable time, but "[i]f the act is in its nature capable of being done instantly—as, for example, if it consists in the payment of money only—it must be performed immediately upon the thing to be done being exactly ascertained." Here, the Batistellis were informed and were aware that payment required the arrangement of financing. And this was delayed by problems experienced by the prospective lender (which eventually had to back out) and complications arising from the recorded lien against Richard. Under the circumstances, Richard is not entitled to disaffirm the settlement due to late payment, nor is he entitled to interest for the period before payment was tendered to him by the cashier's check, which he declined to negotiate.
Nor is there merit in the argument that Manufacturers Warehouse lacks standing to enforce the settlement agreement. The agreement was signed by Gary, the sole owner of the entity, on behalf of the entity. And, as respondent points out, it was ratified by the tender of payment by Manufacturers Warehouse to Richard of the share of the sale proceeds to which he was entitled.
Richard also argues the $155,550 tender to him was improper because it was only a partial payment. But it was full payment of his share of the $300,000, and he lacks standing to argue that it failed to compensate Christina, who makes no such argument. In any event, the court order directed that the entire $300,000 be paid into Share B of the Bypass Trust, which will be for the benefit of Richard and Christina.
It is claimed that Richard's share of the Pine Street property is worth more than $400,000. Richard does so claim, but his claim is based on his hearsay statement that he was so "advised" (by inference, from an appraisal from the "funding company"). But, more fundamentally, the $300,000 sum was arrived at in settlement negotiations, and the claim here appears to be based on buyer's remorse, rather than on any legal justification.
C
Finally, Richard argues that the settlement agreement is "not divisible" but is, instead, an integrated document. Review of the settlement agreement, set out earlier in this opinion, makes it plain that this is not so. First, there is no integration clause in the agreement. Second, the agreement deals with matters quite apart from the Pine Street investment and the buyout of the Bypass Trust's interest in that limited partnership.
DISPOSITION
The judgment is affirmed. Respondent Manufacturers Warehouse shall have its costs from appellant Richard Batistelli.
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.