Opinion
A146778
04-25-2018
WILLIAM PARISI, as Conservator, etc., Plaintiff and Appellant, v. RONALD MAZZAFERRO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. PTR-05-286962)
Luciano and Anna Fiorani created the The Fiorani Living Trust (Trust) to provide for their adult developmentally disabled daughter. Respondent Ronald Mazzaferro was removed as trustee of the Trust by the probate court, and his mother, Edith Mazzaferri, was appointed as successor trustee. (See Mazzaferri v. Mazzaferro (Nov. 9, 2011, A131261) [nonpub. opn.].) William Parisi is the conservator for the Fioranis' daughter. Trust assets included a two-unit building on Filbert Street in San Francisco (the Property), as well as bank and investment accounts. (See Parisi v. Lotchk Corp. (June 10, 2013, A135121) [nonpub. opn.].)
For well over a decade, the parties to this matter have been embroiled in contentious litigation over control of Trust assets and other ancillary intrafamily disputes. Relevant to the dispute here is an April 2014 settlement agreement (Settlement) regarding two consolidated actions against Mazzaferro and others. Pursuant to the Settlement, Mazzaferro was to pay to the conservator the sum of $2.327 million, with periodic payments to be made over a three-year term. The Settlement obligations were to be secured by a deed of trust on the Property originally held by the Trust. The parties specifically requested that the trial court retain jurisdiction to enforce the Settlement pursuant to Code of Civil Procedure section 664.6.
See, e.g., Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1222 & fn. 3. Mazzaferro has been declared a vexatious litigant and sanctioned by both the trial court and this court. (See e.g. Mazzaferri v. Mazzaferro, supra, A131261.)
In her capacity as trustee, Mazzaferri had filed a complaint against Mazzaferro and others seeking to recover Trust assets, alleging breach of trust, breach of contract, breach of fiduciary duty, intentional and negligent misrepresentation, conversion, conspiracy, quiet title, return of trust property, imposition of a constructive trust, and declaratory relief (Super. Ct. S.F. City and County, No. CGC-10-500462). In his capacity as conservator, Parisi had later filed a petition against Mazzaferro and others for, inter alia, financial abuse of a dependent adult, fraud, and constructive fraud (Super. Ct. S.F. City and County, No. PTR-05-286962). The cases were consolidated and subsequently proceeded under the petition number.
Undesignated statutory references are to the Code of Civil Procedure.
Mazzaferro failed to make payments, execute a deed of trust, and cure the Property's tax delinquencies as required by the Settlement. Parisi and Mazzaferri moved to enforce the Settlement. In the motion, additional relief was sought to correct alleged "scrivener's errors" in the Settlement, appoint a receiver, and obtain injunctive relief. Parisi submitted a proposed form of judgment awarding the entire Settlement amount of $2.327 million. Mazzaferro opposed the motion, which was heard on December 11, 2014. On February 18, 2015, the court entered a formal order granting the motion in part, finding it undisputed that the parties had entered into the Settlement and certain Settlement obligations had not been met. Judgment was entered accordingly and served on the parties on the same date, with the Settlement attached and incorporated into the judgment (Judgment). The court declined to grant additional relief.
Counsel for Parisi identifies Mazzaferri as a party to this appeal. She is not. The notice of appeal in this matter was filed by Parisi alone.
As reflected in the December 11, 2014 hearing transcript and the court's December 10 tentative ruling, the court declined to impose a receiver, expunge a mechanics lien filed by Mazzaferro, or impose vexatious litigant sanctions, finding that each remedy had specific statutory and procedural prerequisites.
On July 22, 2015, Parisi and Mazzaferri moved, under section 473, subdivision (d) (section 473(d)), to "vacate void judgment" and asked the court to enter a new judgment enforcing the Settlement. They contended, inter alia, that the Judgment was "void" for failure to designate a prevailing party and failure to state a judgment amount. Mazzaferro opposed the motion. At hearing on August 27, 2015, the court found the motion "frivolous" and entered a written order on September 16, 2015, denying the motion. Parisi filed a notice of appeal from this order on November 9, 2015. We affirm.
DISCUSSION
This appeal is taken only from the September 16, 2015 order. "[A]n order denying a motion to vacate a judgment is generally not appealable; otherwise, an appellant would receive 'either two appeals from the same decision, or, if no timely appeal has been made, an unwarranted extension of time in which to bring the appeal.' [Citation.] . . . [¶] [A]n exception to this general rule applies when the underlying judgment is void. In such a case, the order denying the motion to vacate is itself void and appealable because it gives effect to a void judgment." (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 690-691; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 201, p. 278.) We therefore review the Judgment only to the extent it is alleged to be "void." A. Section 664.6
Parisi filed a notice of appeal from the Judgment in April 2015. He abandoned that appeal the following July.
Parisi's August 15, 2016 unopposed request for judicial notice was granted without a determination as to relevance. We now find the two documents proffered by Parisi to be irrelevant to the issues presented and do not consider them. "Although a court may judicially notice a variety of matters only relevant material may be noticed." (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
Section 664.6 provides that "[i]f 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." Section 664.6 was "enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit." (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360 [permits entry of judgment on a settlement agreement without new lawsuit].) A court ruling on a section 664.6 motion must determine whether the parties entered into a valid settlement agreement and the terms thereof. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) B. Section 473(d)
"The court may, upon motion of the injured party, or its own motion, . . . set aside any void judgment or order." (§ 473(d).) "[I]nclusion of the word "may" means that even if the trial court determines the order or judgment was void, it still retains discretion to set the order aside or allow it to stand." (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822.) Section 473(d) allows the court to set aside only void judgments. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496.) "Evaluating an order or judgment as void is a question of law we review de novo." (Nixon Peabody, at p. 822.)
A judgment is void when the court lacks jurisdiction in a fundamental sense. Lack of fundamental jurisdiction " 'means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) A judgment may also be void if the court grants relief it has no power to grant. (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854.) "Where, for instance, the court has no power to act 'except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites,' the court acts without jurisdiction in this broader sense." (Carlson v. Eassa, supra, 54 Cal.App.4th at p. 691.) A void judgment is a nullity. (Tearlach Resources Limited v. Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 779.)
The Judgment is not void. Parisi does not contend the court lacked fundamental jurisdiction over the parties or subject matter—Parisi himself invoked that jurisdiction in moving for enforcement of the Settlement under section 664.6.
Parisi complains that the court was required to render a money judgment, stating the amount in dollars and cents, and specifying to whom the judgment should be paid. (§ 577.5.) He contends that failure to do renders the Judgment void for uncertainty. Not so. He cites as authority 7 Witkin, California Procedure (5th ed. 2008) Judgment, section 42, page 580, and cases referenced therein (Shriver v. Superior Court (1920) 48 Cal.App. 576, 585; Seaboard Surety Corp. of America v. Superior Court (1931) 112 Cal.App. 248, 249). As Witkin notes, the requirement is that a judgment be "sufficiently certain to permit enforcement, and serious uncertainty may be reversible error." (7 Witkin, at p. 580.) Shriver involved a money judgment that failed to indicate from whom or to whom the judgment was to be paid. (Shriver, at p. 584.) In Seaboard Surety, a judgment after trial was entered against a single named defendant, and against unidentified "sureties" neither named in the pleading caption or identified in the judgment. Unsurprisingly, the court noted that "[t]here is no such thing as a binding judgment against a nameless person." (Seaboard Surety, at p. 249.)
There is no uncertainty in the Judgment. It determines that Mazzaferro is required to pay to Parisi the sum of $2.327 million in accordance with a specified schedule. If the court determines the parties entered into an enforceable settlement, it is required to " 'enter judgment pursuant to the terms of the settlement.' " (Hines v. Lukes, supra, 167 Cal.App.4th at pp. 1182-1183, quoting § 664.6.) The trial court did precisely that.
Parisi seems not to appreciate the irony in arguing below that the Settlement was sufficiently definite and certain to be enforceable, but that it became fatally uncertain once incorporated in the Judgment.
Parisi's real complaint is that the trial court failed to make an award finding the entire balance owed under the Settlement was immediately due as a consequence of Mazzaferro's material defaults. Parisi argues it is clear a trial court's authority to enforce a settlement agreement under section 664.6 is not limited to reciting the terms of the agreement in a judgment, but includes actual enforcement of the agreement using its equitable powers where necessary. (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1061-1062 [retained jurisdiction under § 664.6 is broader than what typically remains following entry of a judgment and includes the court's equitable authority].) However, Parisi does not contend the court lacked authority to grant the relief given, instead he insists he was entitled to greater relief than that provided. Perhaps so, but the fact the court declined to do so in no way renders the Judgment void, and errors of law in rendition of the judgment, if any, are not cognizable in this appeal. " 'A mere erroneous decision on a question of law, even though the error appears on the face of the record, does not make the judgment void, if the court had jurisdiction of the subject matter and of the person of the defendant.' " (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 844.)
In the trial court, Parisi asserted he was entitled to a monetary judgment against not only Mazzaferro, but also two corporate entities who had no payment obligations under the Settlement. --------
DISPOSITION
The September 16, 2015 order denying the motion to vacate the February 18, 2015 judgment entered in this matter is affirmed. The parties shall bear their own costs.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.