Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. LC069548 Michael B. Harwin, Judge.
Law Offices of Mark Rabinovich, Mark Rabinovich for Defendant and Appellant Marina Ossit.
Beitchman & Zekian, David P. Beitchman for Plaintiff and Respondent Armen Margaryan.
ZELON, J.
Defendants Marina Ossit, Garii Bagdasarov, Omega Transportation, Omega Trans, Inc., and Mikhail Zadoyen, appeal judgment entered on a settlement agreement entered into with plaintiff Armen Margaryan. Defendants contend the judgment entered did not reflect the agreement of the parties. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2003, pursuant to an oral contract, plaintiff invested $150,000 with defendants in exchange for a 50 percent interest in defendants’ business, Omega Transportation. Omega Transportation operated a fleet of minivans which used a sophisticated satellite tracking system to dispatch its vans to medical offices through the Los Angeles area. Pursuant to the agreement, plaintiff would be entitled to a 50 percent share of the receivables, and would have an “amount of control commensurate with his ownership interest in the company.”
The parties variously designate the pre-incorporation entity as “Omega Transit” or “Omega Transportation.” For clarity, we refer to it as “Omega Transportation.”
In January 2004, the parties incorporated Omega Trans, Inc. (OTI), and the parties transferred all business operations of Omega Transportation to OTI. Plaintiff holds 50 percent of the stock of OTI. Shortly thereafter, plaintiff discovered that defendants continued to operate Omega Transportation as a separate entity from OTI as a means of concealing profits from plaintiff. Plaintiff alleged that defendants demanded plaintiff contribute additional sums as a condition to receiving any profits; concealed from plaintiff the true financial condition of Omega Transportation, while depleting its cash accounts for their personal use; failed to make full and accurate disclosure of the value of the interests in the corporation; maintained Omega Transportation and OTI as two separate entities; and failed to remit profits to plaintiff.
On October 6, 2004, plaintiff filed his complaint, seeking damages and equitable relief. Defendants cross-claimed for damages, contending plaintiff had wrongfully withdrawn funds from the business for his personal use.
On September 6, 2005, on the date set for trial, the parties settled the matter, and orally entered the terms of the settlement into the record. Defendants agreed to make a cash payment of $17,500 to plaintiff, and to assign to plaintiff $250,000 of accounts receivable from Omega Transportation/OTI’s total receivables of $998,000. The parties agreed they would meet after the hearing to discuss the manner in which the assignment would take place, and in good faith would draft any documents necessary to further the assignment. In addition, they agreed that after the final payment, plaintiff would turn over all of the stock certificates and corporate books and records. The parties agreed to set March 16, 2006 for an OSC re dismissal, and agreed they would file a notice of entry and a stipulated judgment in the amount of $267,500. The cross-complaint would be dismissed, and the settlement would resolve all claims in the case.
On March 22, 2006, plaintiff moved for entry of judgment, contending that defendants had failed to fulfill the essential terms of the settlement, alleging that since the agreement was placed on the record on September 6, 2005, defendants had refused to turn over the receivable files. Plaintiff’s motion disclosed the following:
On September 16, 2005, plaintiff forwarded the first of what would be many drafts of a Notice of Settlement and Stipulation and Order for Deferred Entry of Judgment (Stipulation). On November 4, 2005, defendants returned to plaintiff a revised Stipulation. On November 11, 2005, defendants, without the prior agreement of plaintiff or his counsel, delivered to plaintiff’s counsel five sealed boxes of accounts receivable files, a list of receivables worth $251,278.31, another draft of the revised Stipulation, and $17,500.00. By letter dated November 11, 2005, plaintiff confirmed a telephone conversation wherein defendant advised that delivery of the five boxes constituted a good faith effort to begin performance of the settlement terms; the files were not in complete satisfaction of the $250,000 amount; and the files constituted only a portion of the total $998,000 worth of OTI accounts receivable that defendant had agreed plaintiff could select from. Defendant confirmed that plaintiff had the right to review, examine and choose among the files in his possession. During December 2005, the parties exchanged two more drafts of the Stipulation.
The list of receivables were accompanied by a signed assignment from defendants which stated, “by executing this Assignment, I hereby confirm and acknowledge that the client files (attached hereto and incorporated by reference herein) are hereby forever assigned, transferred, and conferred upon ARMEN MARGARYAN (hereafter “Assignee”), pursuant to the Stipulation reached. . . . [¶] Without limitation of the foregoing, it is expressly acknowledge[d] that the Assignee has the full ownership of said files, as well as any and all rights to collect any amounts receivable thereunder.”
Defendants’ opposition to plaintiff’s motion to enforce the settlement contended that they had complied with all of the settlement terms, namely, the cash payment of $17,500 and the assignment of $250,000 worth of receivables. They contended that they never agreed to permit plaintiff to review their entire list of receivables and choose from that list; rather, they agreed to meet and discuss the manner in which the assignment would take place. Defendants contended the files contained proprietary and private patient information. Defendant Marina Ossit’s declaration stated that she never agreed to allow plaintiff to browse through her company’s entire files, and believed she had fully complied with her obligations under the settlement. Alternatively, she proposed that plaintiff submit a list of criteria to use in selecting receivable files, and that if defendants had a sufficient number of files meeting those criteria, defendants would submit them to plaintiff.
The record discloses that on January 11, 2006, the parties entered into a Stipulation and Order for Deferred Entry of Judgment, which provided that the parties would meet and select $250,000 of receivables from the list of $998,000 receivables. Further, it provided that “Defendants and each of them agree that in the event defendants fail to pay [$17,500], judgment can be entered in the sum of [$267,500],” but that any judgment entered would not exceed $250,000. That stipulation specifically provided that “[b]oth Plaintiff and Defendants agree to choose a date wherein all parties, and their respective counsel, will meet to mutually agree upon the files that shall constitute Plaintiff’s [$250,000] of assignable accounts receivable. Defendants and Plaintiff also agree to meet at a mutually agreeable time and place and review all files that constitute [the] $998,000 [of] receivables and choose those files that Plaintiff is entitled [to] for $250,000 [worth of] receivables.” With respect to costs, the Stipulation provided that defendants would be liable for “any and all costs incurred by Plaintiff in enforcing and securing judgment . . . including attorneys’ fees. . . .”
On May 19, 2006, the parties stipulated to a post-settlement order whereby a referee would review and equitably assign $250,000 of accounts receivable. The court ordered the referee to provide a statement of decision, which statement was to include the outstanding balance due; the referee’s statement would be subject to final court approval. Pursuant to an amended stipulation entered June 21, 2006, the parties agreed that Richard Kolostian, Judge retired, would serve as referee.
The parties conferred with Judge Kolostian by conference call on September 6, 2006. Judge Kolostian’s statement of decision dated September 29, 2006, found that by letter dated August 17, 2006, plaintiff had requested seven categories of documents from defendants; further, at the hearing where the parties settled the matter, defendants showed plaintiff a list of $998,000 worth of receivables, and plaintiff relied upon that list in entering into the settlement. Judge Kolostian believed that plaintiff’s request for documentation was necessary to determine the status of the accounts receivable and monies defendants had received on the accounts; once the information was received, an accounting would be possible.
However, Judge Kolostian concluded that “[t]here is no accounting and there never will be an accounting without court intervention. . . . [¶] The problem begins with a vague settlement agreement on how to assign the account[s] receivable[] to plaintiff. Frankly this settlement . . . depended upon people of good will. Good will is certainly lacking.” Judge Kolostian further found that defendants’ counsel had changed; the list of receivables presented to plaintiff at the time of settlement had vanished; of the documents produced by defendants, except for the bank statements, all were computer generated and had no backup. Given the lack of backup information, Judge Kolostian concluded he was unable to provide an accounting.
On December 29, 2006, Judge Kolostian submitted his final report in which he stated that he had requested numerous documents from defendant, but had not received them. On December 6, 2006, Judge Kolostian received a box containing seven files, several of which were “already closed.” Judge Kolostian reported that “[s]ince the in-court settlement on September 6, 2005, the Defendants have not done anything to resolve this case, they only created delay. . . . The Defendants may have cherry picked the files and collected the easy ones, or collected money in the name of the original Corporation and not declared the money, or opened new bank accounts under different names. . . . A forensic Accountant would have to be hired to determine what has happened to these accounts.” Judge Kolostian resigned as referee.
In opposition to the motion for entry of judgment on the settlement, defendants contended that the agreement did not provide for the situation where they had not completed the meet-and-select requirement or were unable to work out their differences. Defendants also disputed the costs requested by plaintiff because costs were not provided for in the agreement.
At the hearing to enforce the settlement held January 3, 2007, defendants advised the court that, contrary to Judge Kolostian’s report, they had turned over documents to plaintiff. On January 22, 2007, defendants objected to plaintiff’s proposed order entering judgment pursuant to the Stipulation as being contrary to the parties’ agreement, and attached to their objection a copy of the Stipulation signed by both parties in counterpart.
On January 31, 2007, the court entered judgment in favor of plaintiff in the sum of $250,000, plus costs of suit in the amount of $9,330.
DISCUSSION
Defendants contend the judgment does not comply with the terms of the settlement because the settlement agreement, which was vague from the outset, does not contain terms sufficiently certain to permit enforcement; specifically, the parties did not agree that if they were unable to agree upon the assignment of the receivables, defendants would submit to entry of a $250,000 judgment against them. Defendants also contend the agreement did not permit the award of costs.
THE TERMS OF THE PARTIES’ SETTLEMENT ARE SUFFICIENTLY CERTAIN TO PERMIT ENFORCEMENT.
Section 664.6 provides a summary procedure to enforce settlements either entered into orally in open court or entered into in writing by the parties. (Weddington Productions, Inc. v. Flick (Weddington Productions) (1998) 60 Cal.App.4th 793, 810.) In determining whether such agreements constitute a “binding mutual accord as to the material terms,” the trial court sits as a trier of fact and may resolve disputes concerning the terms and binding nature of the agreement. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.) Where the trial court does not make express findings of fact, we infer such findings in favor of the judgment if they are supported by substantial evidence. (Alpha Mechanical, Heating, and Air Conditioning, Inc. v. Travelers Casualty and Surety Co. of America (2005) 133 Cal.App.4th 1319, 1338.)
A contract is sufficiently certain if the parties’ outward manifestations show that the parties agreed upon the “same thing in the same sense.” (Civ. Code, § 1580.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Weddington Productions, supra, 60 Cal.App.4th at p. 811.)
Here, the parties agreed in open court to an immediate cash payment of $17,500, an assignment of $250,000 worth of receivables from OTI to plaintiff, and entry of a stipulated judgment in the amount of $267,500 in the event of a breach by defendants. These terms are certain. However, the method of assignment of the receivables was left to the good faith determination of the parties subsequent to the hearing. Defendants argue that because the agreement did not define what the parties were to discuss concerning the manner of assignment, and this open term is no minor matter, the agreement is unenforceable. (See Weddington Productions, supra, 60 Cal.App.4th at p. 813.)
We disagree. The agreement to assign $250,000 worth of receivables is not too vague to enforce. Although the parties left to future agreement the specific files to be assigned out of the $998,000, this indecisiveness does not, as defendants contend, render the terms of the agreement uncertain. (Hylton Flour Mills v. Bowen (1933) 128 Cal.App. 711, 714 [election of buyer to select quantity or brand of flour].) “There are occasions in which ‘minor matters’ are left for future agreement. When this occurs, it does not necessarily mean that the entire contract is unenforceable. . . . ‘Obviously, the question is one of degree; the question is whether the indefinite promise is so essential to the bargain that inability to enforce that promise strictly . . . makes it also unfair to enforce the remainder of the agreement.’ [Citation].” (Weddington Productions, supra, 60 Cal.App.4th at p. 813.) Where the parties are unable to agree upon the matters left open to future agreement in an otherwise enforceable contract, “each party will be forced to accept a reasonable determination of the unsettled point,” and “the court may determine the matters within [this] test of reasonableness, . . in accordance with the general purposes of the contract.” (City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 433.)
Further, because the fact of the assignment of $250,000 of receivables to plaintiff was agreed upon, the failure to specify a “method” of assignment is not fatal to the contract. An assignment consists of conferring one’s legal rights to another. (Restatement 2d, Contracts, § 317 “[a]n assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.”].) The fact that the parties agreed to leave the precise files to be the subject of assignment to the future agreement of the parties therefore does not render the agreement unenforceable. On that basis, Terry v. Conlan (2005) 131 Cal.App.4th 1445, upon which defendants rely, is distinguishable. In Terry v. Conlan, the parties left open a material term; although they agreed there would be independent management of the ranch at issue, they did not agree on the means of achieving that goal, specifically, whether there would be an independent trustee or a manager, and what specific duties and the extent of power that person would have. (Id. at p. 1459.)
Given that the Stipulation is sufficiently certain to enforce, the facts establish defendants’ breach. Defendants failed to act in good faith in presenting plaintiff with receivable files for plaintiff’s review. After delays in producing files, defendants produced a “list” of receivables; after much prodding, they produced seven files, three of which were closed. To date, plaintiff has not been able to inspect OTI’s purported $998,000 worth of receivables or to make a selection among them in satisfaction of the agreed amount. The agreement, both the oral and written version, contain a remedy for breach: entry of the stipulated judgment and award of costs, including attorneys’ fees, as provided in the written stipulation. Here, the trial court properly enforced the agreement by entering judgment in the amount of $250,000, the unsatisfied portion of the settlement.
Defendants contend there is no signed stipulation. They are estopped from making this contention because in connection with their opposition to plaintiff’s proposed order, defendants incorporated, referred to, and relied on the signed copy of the Stipulation attached to their opposition. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
DISPOSITION
The judgment is affirmed. Respondent is to recover his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.