Ebensteiner Co., Inc. v. Chadmar Group
Decision Date | 11 October 2006 |
Docket Number | No. B184525.,B184525. |
Citation | 143 Cal.App.4th 1174,49 Cal.Rptr.3d 825 |
Court | California Court of Appeals Court of Appeals |
Parties | The EBENSTEINER COMPANY, INC., Plaintiff and Appellant, v. The CHADMAR GROUP, Defendant and Respondent. |
Law Offices of Barry K. Rothman and Barry K. Rothman, Los Angeles, for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, and Randal J.A. Ivor-Smith, Los Angeles, for Defendant and Respondent.
Plaintiff, The Ebensteiner Company, Inc., has appealed from the demurrer dismissal of its second amended complaint. The second amended complaint alleged causes of action for constructive fraud, conspiracy to defraud, and fiduciary duty breach against defendant, the Chadmar Group. While the appeal was pending, the parties entered into a settlement agreement. We conclude the settlement agreement, which explicitly requires the present appeal be dismissed, has rendered moot the issue of whether the demurrer dismissal should have been entered. We therefore order dismissal of the present appeal.
While the appeal was pending, the parties participated in a mediation before Retired Justice Edward J. Wallin which resulted in a written stipulation for settlement which explicitly refers to Code of Civil Procedure1 section 664.6. The stipulated settlement agreement was executed by plaintiff and defendant as well as two other defendants, Charles Chastain and James Waldorf. All parties were represented by counsel. The stipulated settlement provides in part: Paragraph 8(c) refers to a lien "filed" by Vintage Communities, Inc. in a Ventura County lawsuit.
On May 16, 2006, defendant filed with us a motion to dismiss or in the alternative to stay on the ground the present appeal had been rendered moot by the executed stipulated settlement. Plaintiff, which was represented by a new attorney, opposed the dismissal motion on ground the settlement agreement negotiated before Retired Justice Wallin is invalid due to mistake and the undue influence of plaintiff's former attorneys over June Ebensteiner. Mrs. Ebensteiner signed the settlement agreement as plaintiff's president. Plaintiff also argued that the settlement was ineffective because the lien provisions of the settlement agreement (referenced in paragraphs 4, 6, and 8(c) of the agreement) created a condition precedent which had not occurred.
On June 5, 2006, we assigned the trial judge, the Honorable Stanley M. Weisberg, to act as a referee to conduct an evidentiary hearing to determine whether the written settlement agreement is enforceable. It is common when there are factual issues which relate to the jurisdiction of an appellate court to assign a referee to decide those matters. (People v. Chapman (1971) 5 Cal.3d 218, 224-225, 95 Cal.Rptr. 533, 485 P.2d 1149 [ ]; Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1008-1009, 75 Cal.Rptr.2d 621 [ ].) After conducting the evidentiary hearing, the referee found the agreement was enforceable and recommended that the judgment be entered pursuant to section 664.6. The referee further found: plaintiff's claims concerning mistake and undue pressure were baseless; Mrs. Ebensteiner's testimony lacked credibility; her testimony was contradicted by her own declaration and one of her own witnesses; and Mrs. Ebensteiner understood the terms of the settlement and freely consented to its terms.
Following the filing of the referee's report, the parties filed supplemental briefs on the dismissal motion. Without citation to any authority, plaintiff argues the appeal should not be dismissed because: the settlement sum of $250,000 has not been paid nor tendered; the Vintage Communities, Inc. lien is still outstanding and has not been satisfied; and no standard form or release has been drafted, circulated, or submitted for signature. Defendant contends the appeal must be dismissed because the settlement agreement is valid and enforceable as confirmed by the referee's report. In support of its contention, defendant relies on Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 24, 133 Cal.Rptr.2d 1, Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227, 123 Cal.Rptr.2d 735, and Rancho Solano Master Assn. v. Amos & Andrews, Inc. (2002) 97 Cal.App.4th 681, 688, 119 Cal.Rptr.2d 100.
Generally, courts decide only "actual controversies" which will result in a judgment that offers relief to the parties. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566, 101 Cal.Rptr.2d 86.) Thus, appellate courts as a rule will not render opinions on moot questions: (Paul v. Milk Depots, Inc., supra, 62 Cal.2d at pp. 132, 134, 41 Cal.Rptr. 468, 396 P.2d 924; accord Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126, 278 Cal.Rptr. 346, 805 P.2d 300; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005, 78 Cal.Rptr.2d 272; Wax v. Infante (1983) 145 Cal.App.3d 1029, 1031, 194 Cal.Rptr. 14.) The policy behind this rule is that courts decide justiciable controversies and will normally not render advisory opinions. (Giles v. Horn, supra, 100 Cal.App.4th at pp. 226-227, 123 Cal. Rptr.2d 735; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10, 244 Cal.Rptr. 581; Wilson v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 452-453, 246 P.2d 688; see also Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal. App.4th 1175, 1183, 34 Cal.Rptr.3d 258; Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1259, 15 Cal.Rptr.3d 344.)
One such event occurring for which a reviewing court will dismiss an appeal is when the underlying claim is settled or compromised. (See General Petroleum Corp. v. Beilby (1931) 213 Cal. 601, 603-605, 2 P.2d 797; Armstrong v. Sacramento Valley R. Co. (1919) 179 Cal. 648, 650-651, 178 P. 516; Muccianti v. Willow Creek Care Center, supra, 108 Cal.App.4th at p. 24, 133 Cal.Rptr.2d 1; Rancho Solano Master Assn. v. Amos & Andrews, Inc., supra, 97 Cal.App.4th. at p. 688, 119 Cal. Rptr.2d 100; County of Fresno v. Shelton, supra, 66 Cal.App.4th at p. 1005, 78 Cal. Rptr.2d 272; 9 Witkin, California Procedure (4th ed. 1997) Appeal, § 644, p. 673; see also Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8, 31 Cal.Rptr.2d 776, 875 P.2d 1279 [ ]; Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4, 27 Cal.Rptr.2d 165, 866 P.2d 92 [ ]; Landberg v. Landberg (1972) 24 Cal.App.3d 742, 746-747, 101 Cal. Rptr. 335 [ ].)
Our Supreme Court in Armstrong v. Sacramento Valley R. Co., supra, 179 Cal. 648 at pages 650-651, 178 P. 516 explained that dismissal of an appeal is the appropriate disposition for a suit that is compromised or settled. This is because the law favors and encourages compromises and settlements of controversies made in or out of court. (Ibid.) The Supreme Court has explained that...
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