California Court of Appeal Mar 11, 2016 No. D069090Unpublished
Filed 3/11/16 Meida v. Maida CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ELIAN MEIDA, D069090
Plaintiff and Appellant,
v. (Super. Ct. No. CIVVS1101947)
MUNEM MAIDA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino County, John
M. Pacheco, Judge. Affirmed.
Frank P. Cuykendall for Plaintiff and Appellant.
Carroll Gilbert & Bachor and Guy J. Gilbert for Defendants and Respondents.
During trial of their respective claims, the parties in this property and business
dispute stated, in open court, that they had reached a global settlement. The settlement
involved two elements: an agreement that, following an appraisal process, plaintiff and
appellant Elian Meida would sell his interest in jointly held assets to defendants and
respondents Munem Maida and Fadi Ballat (collectively defendants), and an agreement
that, although the amount was undisclosed at the time the settlement was reached, they
would pay Meida $800,000 in unpaid dividends from the disputed businesses. Following
the parties' agreement on the record to the terms of the settlement agreement, the trial
court retained jurisdiction under Code of Civil Procedure1 section 664.6.2
Meida failed to timely obtain an appraisal, as required by the global settlement
agreement. Maida and Ballat did retain an appraiser who did provide an appraisal within
the four-month period required under the settlement agreement. Maida and Ballat made
two motions to enforce the settlement agreement. The first motion was limited to a
request that Meida be compelled to transfer his interest in the assets at the price
determined by Maida and Ballat's appraiser. The trial court denied the motion without
prejudice because defendants' motion had not accounted for their obligation to pay Meida
for the unpaid dividends. Defendants' second motion was granted because Maida and
Ballat agreed to pay Meida the $800,000 in unpaid dividends he asserted was an element,
albeit previously undisclosed, of the global settlement agreement.
1 All further statutory references are to the Code of Civil Procedure.
2 Section 664.6 provides: "If 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." 2
We affirm the trial court's order enforcing the settlement agreement. Because the
trial court's order denying the first motion was made without prejudice, Maida and Ballat
could properly make a second motion which cured the defect identified by the trial court.
Meida's own statement to the effect defendants agreed to pay him $800,000 in unpaid
dividends was sufficient evidence that the parties' agreement was definite and
enforceable. Contrary to Meida's argument on appeal, further agreement as to the amount
to be paid as dividends was not a condition of the appraisal process to which the parties'
agreed.
FACTUAL AND PROCEDURAL BACKGROUND
The parties jointly owned undeveloped parcels of land and by way of interests in
limited liability corporations, two gasoline stations, each of which included a
convenience store and car wash. The undeveloped land and gasoline stations were
located in Apple Valley, California.
Meida initiated the litigation by filing a complaint against Maida and Ballat in
which he alleged a breach of fiduciary duty, among other causes of action, growing out of
the failure of Maida and Ballat to pay him dividends earned by the gas stations after
January 2010. The gas stations were operated by Maida and Ballat. Maida filed a cross-
complaint against Meida in which he alleged Meida had failed to pay of his portion of
mortgage obligations and development costs associated with plans to improve the
undeveloped parcels.
3
Trial commenced on January 28, 2013. During a break on the first day of trial of
their claims, the parties met privately, without counsel. Following their meeting, counsel
advised the trial court the parties had reached a settlement of their claims. Counsel set
forth the terms of the settlement on the record:
1) The two businesses and the land the parties owned would be subject to an
appraisal; Meida would appoint one appraiser, and Maida and Ballat would appoint a
second appraiser. The parties agreed the appraisals would be completed within four
months. The parties would then be bound by an average of the two appraisals.
2) Maida would have the right to purchase Meida's interest in the businesses, at
the appraised value, within 60 days of the appraisal; in addition, a third party, Maida
Maida, (aka Mark Maida), would have the right to purchase from Meida a 16.5 percent
interest in one of the undeveloped parcels at its appraised value. If Maida Maida made
the purchase, Meida's interest in the parcel would be reduced to 33 percent. If, after 60
days, Maida did not buy Meida's interests in the businesses and subject parcels, Meida
would buy defendants' interests in all the assets at the appraised values.
3) Meida's counsel stated that with respect to the three years' of dividends: "there's
been an agreement reached between the parties that those amounts would be paid, the
specific terms of which would be undisclosed in the settlement agreement, which is why
we asked the court to maintain jurisdiction over this case."
4
Following counsel's recitation of the agreement on the record, Meida stated he
agreed to the terms as described by counsel. The trial court then expressly retained
jurisdiction under Code of Civil Procedure section 664.6.
Within four months, Maida and Ballat obtained the contemplated appraisal and
gave Meida notice of it; Meida did not provide Maida and Ballat with an appraisal within
the four-month period required under the terms of the settlement. Shortly thereafter,
Maida and Ballat moved to enforce the asset transfer provisions of the settlement and
compel Meida to sell his interests for the amounts set forth in their appraisal. Meida
opposed the motion because he argued that it did not include any provision with respect
to payment to him of the agreed dividends. As part of his opposition, Meida submitted a
declaration, which in pertinent part stated: "During our settlement discussions on January
28, 2013, I told each Defendant that I would be satisfied with $800,000 to resolve the
case regarding unpaid dividends. Defendants promised that they would satisfy my
expectations and told me not to worry[.] I understood their assurances that they would
satisfy my expectations and told me not to worry. . . . I understood their assurances that
they would satisfy my expectations. . . . [¶] I made it clear to each Defendant that I was
only willing to entertain a global settlement upon payment of the dividends that I had not
received for over three years along the lines of my expectations of $800,000. Each
Defendant assured me that they would pay me the dividends if I would agree to sell my
interests and portions of interest in land we jointly owned. Thus, I agreed to the global
settlement."
5
The trial court denied the motion to enforce the settlement and stated:
"Defendants' motion fails to address adequately the dividends issue. A review of the
record demonstrates that the issue of the payment of dividends was a material term of the
settlement and was not a minor or separable issue. With its motion, defendant did not
present any evidence regarding the dividends payment or discuss this terms of the
settlement agreement."
On February 19, 2014, Maida and Ballat filed a second motion to enforce the
settlement. The second motion addressed the dividends issue. In declarations they
submitted in support of their motion, Maida and Ballat stated that they had agreed to pay
Meida $800,000 in dividends and that they were ready, willing and able to pay Meida
that amount plus the approximate $900,000 appraised value of Meida's interest in the
jointly held assets.
The trial court granted Maida and Ballat's second motion and ordered that Meida
transfer his interests upon payment of $1.7 million. Meida failed to comply with the trial
court's order, and the trial court appointed a receiver who effected the transfer. Meida
filed a timely notice of appeal.3
3 We note that at the time of oral argument, the parties represented to the court that Meida has taken proceeds of the transfer executed by the receiver. Because we affirm, we have not asked the parties to brief the question of whether receiving benefits of the challenged judgment results in waiver of Meida's right to appeal. (See Lee v. Brown (1976) 18 Cal.3d 110, 114.) 6
DISCUSSION
I
"In ruling on a motion to enter judgment [under section 664.6] the trial court acts
as the trier of fact, determining whether the parties entered into a valid and binding
settlement. [Citation.] Trial judges may consider oral testimony or may determine the
motion upon declarations alone. [Citation.] When the same judge hears the settlement
and the motion to enter judgment on the settlement, he or she may consult his memory.
[Citation.] The standard of review on appeal is whether substantial evidence exists to
support the trial court's ruling. [Citation.]" (Terry v. Conlan (2005) 131 Cal.App.4th
1445, 1454; see Fiore v. Alvord (1985) 182 Cal.App.3d 561, 563.)
II
In his first argument on appeal, Meida claims that, because the trial court had
denied Maida's first motion to enforce the settlement, Maida could not make a new
motion to enforce the settlement without meeting the requirements of section 1008,
which, among other matters, requires that a motion for reconsideration be supported by
new facts or circumstances. We reject this argument for two reasons.
The trial court's order denying the first motion to enforce the settlement was
expressly made "without prejudice." As Maida and Ballat point out, an order denying
relief "without prejudice" permits the initially unsuccessful litigant to renew his or her
request for relief at a later time when, for whatever reason, the grounds for denying relief
no longer exist. (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th
7
1007, 1015; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2014) ¶ 9:340.)
Moreover, even were new facts or circumstances necessary to support Maida and
Ballat's second motion, the record shows that such facts and circumstances did arise after
the time of the first motion. At the time they made the first motion, Maida and Ballat did
not have any written concession from Meida with respect to the amount Meida would be
paid in dividends. Meida's response to the first motion, in which he stated that he
expected $800,000 in dividends, and Maida and Ballat's agreement with him and stated
willingness to pay that amount, were new material facts or circumstances that would
support a motion for reconsideration. (See Film Packages v. Brandywine Film
elaborated on declarations and evidence submitted in support of earlier unsuccessful
motion sufficiently different to support second motion].)
III
In his second argument on appeal, Meida contends the settlement agreement was
not enforceable because it was not definite with respect to the amount Maida and Ballat
would be paid on his dividend claim. The record conclusively refutes this contention.
"A settlement is enforceable so long as it is 'sufficiently certain to make the
precise act which is to be done clearly ascertainable.' " (Provost v. Regents of University
of California (2011) 201 Cal.App.4th 1289, 1301.) The statement Meida made on the
record in opposing the first motion—to the effect he expected $800,000—and Maida and
8
Ballat's statements to the effect they had agreed to pay him that amount, are sufficient to
show the existence of an enforceable agreement. By way of Meida's statement and
Maida and Ballat's agreement, there was ample evidence of a meeting of the minds with
respect to a definite amount: $800,000.
IV
In his final argument, Meida contends no valid appraisal could be made by either
party until the parties had agreed to the amount of dividends. This argument is predicated
on Meida's erroneous contention the parties had not in fact agreed that he would be paid
$800,000 as compensation for the unpaid dividends. However, the settlement as
represented to the trial court, at the time it was accepted by the parties and the trial court,
expressly provided that the parties had reached an agreement on the dividends issue but
did not wish to disclose its terms. This fact was corroborated in the declaration Meida
submitted in opposition to the first motion to enforce the judgment and by Maida's and
Ballat's declarations in support of their second motion, which showed that the parties
agreed Meida would be paid $800,000 in unpaid dividends. Thus, there was no need for
any further agreement with respect to the unpaid dividends, and Meida was free to ask
that his appraiser consider the dividend payment in making his appraisal of the business.
Meida's final argument is also based on his faulty contention that the $800,000 in
dividends represented otherwise unreported income and, as such, would have some
material bearing on an appraiser's valuation of the businesses. As Maida and Ballat's
appraiser noted, her appraisal was based on her evaluation of the reported and recorded
9
income of the businesses. Because of the highly regulated and taxed nature of the
businesses, she doubted there was any unreported income; moreover, she believed that
even if the dividends paid to Maida represented in whole or in part unreported income, as
Meida asserts, a reasonable purchaser would discount it substantially because of its
inherent uncertainty and durability.
In sum, there was no basis upon which to require a further agreement as to the
amount of the dividends to be paid to Meida before enforcing the settlement agreement.
DISPOSITION
The trial court's entry of judgment enforcing the settlement agreement is affirmed.
Maida and Ballat to recover their costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
10
AI Brief
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Holding. The court affirmed the trial court's order enforcing a global settlement agreement, finding that the parties had reached a definite and enforceable agreement regarding asset appraisal and a specific $800,000 dividend payment.
Issues
Whether a second motion to enforce a settlement agreement is permissible after an initial motion was denied without prejudice.
Whether the settlement agreement was sufficiently definite and enforceable regarding the dividend payment amount.
Whether the dividend payment was a condition precedent to the appraisal process.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Because the trial court's order denying the first motion was made without prejudice, Maida and Ballat could properly make a second motion which cured the defect identified by the trial court.”
“A settlement is enforceable so long as it is 'sufficiently certain to make the precise act which is to be done clearly ascertainable.'”
“By way of Meida's statement and Maida and Ballat's agreement, there was ample evidence of a meeting of the minds with respect to a definite amount: $800,000.”