Secord v. Massingham & Associates Mgt., Inc. CA6

Filed 12/24/13 Secord v. Massingham & Associates Mgt., Inc. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JONATHAN SECORD, H038290 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CV172115)

v.

MASSINGHAM & ASSOCIATES MANAGEMENT, INC.,

Defendant and Appellant.

Defendant Massingham & Associates Management, Inc. (Massingham) brings this appeal to challenge an order enforcing a settlement agreement with plaintiff Jonathan Secord. Even disregarding the procedural defects in Massingham's appeal, we find the settlement issue it raises to be moot. Accordingly, we will dismiss the appeal. Background According to Massingham, "[t]he principal facts relevant to this appeal are not in dispute." On the contrary, they are very much in dispute. Nevertheless, because the issues between the parties are of only academic significance, the factual discrepancies are not material to the outcome of the appeal. In January 2010, plaintiff Secord, a homeowner and member of the Siena at Montecito Vista HOA (Siena), unsuccessfully ran for election to the Siena board of directors. Secord brought suit to invalidate the election, naming both Siena and

Massingham, Siena's management company. Siena cross-complained against Massingham and two other corporations. Secord obtained a temporary restraining order and was thereafter elected to the board. He then sought to recover his legal fees and court costs. Secord and his attorney attended an afternoon settlement hearing on October 26, 2011, presided over by temporary judge Phil Young. Also present were Siena's counsel, John Downing, who informed the court that for purposes of the settlement he represented all the defendants, including Massingham. The parties announced that they had agreed on settlement terms, which called for specified payments to Secord from all defendants. Massingham was to pay $5,500, mutual releases would be drafted, and should enforcement of the agreement be necessary, attorney fees would be payable to the prevailing party. Downing offered to draft the written agreement, and he confirmed that he represented all of the defendants. When the Hon. Patricia M. Lucas appeared, she recited her understanding that the parties intended this agreement to be enforceable, and she obtained from Downing a date for dismissal with prejudice of all claims in the action. What was not revealed at the settlement hearing was a private agreement between Downing and Massingham's counsel, Jeffrey Cereghino, in which Massingham agreed to contribute $5,500 in exchange for Siena's consent to a one-year extension of Massingham's management contract. Downing did not believe he needed to make this agreement part of the record, because Secord was not part of the negotiations between the two cross-defendants, Massingham and Siena. When a draft of the written settlement agreement was circulated, Massingham added a new term extending its management contract.1 Secord opposed the new