Landberg v. Landberg

• Decision Date: 05 April 1972
• Citation: 24 Cal.App.3d 742,101 Cal.Rptr. 335
• Court: California Court of Appeals Court of Appeals
• Parties: Edward LANDBERG, Plaintiff, Cross-Defendant and Respondent, v. Roslyn R. LANDBERG, Defendant, Cross-Complainant and Appellant. Civ. 27190.

Page 335

101 Cal.Rptr. 335

24 Cal.App.3d 742

Edward LANDBERG, Plaintiff, Cross-Defendant and Respondent, v. Roslyn R. LANDBERG, Defendant, Cross-Complainant and Appellant.

Civ. 27190.

Court of Appeal, First District, Division 1, California.

April 5, 1972.

As Modified on Denial of Rehearing May 4, 1972.

Hearing Denied May 31, 1972.

Kurt W. Melchior, Severson, Werson, Berke & Melchior, San Francisco, for appellant.

David L. Cunningham, Cunningham, Wolf & Churchill, San Francisco, for respondent.

MOLINARI, Presiding Justice.

This is an appeal from an order in a divorce action denying defendant and cross-complainant (hereinafter 'defendant') Roslyn Landberg's motion for an order declaring that she had exercised her right to buy plaintiff and cross-defendant (hereinafter 'plaintiff') Edward Landberg's stock in two corporations pursuant to the provisions of an agreement entered into between them, and between them and said corporations.

Plaintiff has not filed a respondent's brief. Therefore, pursuant to rule 17(b) of the California Rules of Court, we accept as true the statement of facts in defendant's opening appellant's brief. Defendant has not requested oral argument. Accordingly, under rule 17(b), the case is deemed submitted to us for decision on the record and on defendant's opening brief. ¹

Motion For Reversal

During the pendency of this appeal defendant made a motion for a reversal of the order appealed from upon the ground that plaintiff had stipulated to such a reversal on the basis that the litigation between the parties had been settled. The motion is predicated on a letter addressed to defendant's counsel by plaintiff's then counsel and bearing plaintiff's approval. The contents of said letter are set forth in the margin. ² Following the filing of said motion and argument thereon, we directed the respective parties to show cause why the appeal should not be dismissed on the ground that it has become moot for the reason that the differences respecting the subject matter of this appeal had been adjusted during the pendency of the appeal. In his declaration in response to said order to show cause plaintiff does not deny the execution of the letter hereinabove referred to but asserts that it was only a conditional offer of possible settlement. Defendant in her declaration in response to said order to show cause, while asserting that a tentative settlement was reached between the parties, concedes that a final settlement was never formalized. Defendant asserts, moreover, 'that in the ultimate analysis it will require an order of Court' to establish that a final settlement was reached.

An appeal may be dismissed as moot because the litigation between the parties has been settled. (General Petroleum Corp. v. Beilby, 213 Cal. 601, 604, 2 P.2d 797; 6 Witkin, Cal.Procedure (2d ed.) § 463, p. 4419.) Moreover, this court has the power to entertain a motion for reversal in a proper case. (Estate of Davis, 8 Cal.2d 11, 12, 63 P.2d 827; Barton v. Maal, 12 Cal.App.2d 353, 354, 55 P.2d 529; Melancon v. Walt Disney Productions, 127 Cal.App.2d 213, 214--215, 273 P.2d 560.) Here the motion for reversal is predicated upon the alleged settlement. We conclude that such motion may not be granted, nor may this appeal be dismissed as moot, since we cannot say as a matter of law that the case has been settled. The language of the letter, when considered with the declarations, leaves the matter in the posture where the question whether a final settlement has been reached is a matter depending on the determination of factual issues to be resolved by a fact finding tribunal.

Statement of the Case

On August 22, 1967, an interlocutory decree of divorce was granted to defendant from plaintiff on the ground of plaintiff's extreme cruelty. In said decree the court approved a property settlement agreement (hereinafter the 'Agreement') entered into between the parties. The decree provided that plaintiff and defendant were to perform the Agreement according to its terms, and jurisdiction was retained by the court for the purpose of enforcing the Agreement as required. A final judgment of divorce was entered by the court on May 24, 1968, decreeing, in part, that the parties were to comply with the terms of the Agreement as provided in the interlocutory decree.

Pursuant to the court's continuing jurisdiction reserved by the court, defendant thereafter filed a motion for an order establishing that she had exercised her rights under the Agreement to buy all the stock in Berkeley Cinema Guild, Inc. and in Rosed, Inc. held by plaintiff and defendant and requesting the court to compel specific performance of those provisions of the Agreement calling for the redemption or purchase of plaintiff's stock in the two corporations. After a hearing the motion was denied and this appeal by defendant ensued.

The Facts and Contentions

Pursuant to the Agreement plaintiff received 60 percent of the stock of each of the two corporations as his separate property and defendant received 40 percent of said stock as her separate property. Paragraph 10 of the Agreement provides for the procedure to be followed in the event either spouse should wish to sell or purchase stock from the other without having reached an agreement as to the terms and price thereof. In pertinent part paragraph 10 contains the following provisions: '. . . (c) At any time either spouse may give to the other spouse . . . written notice that on or after the fifteenth subsequent calendar day, but prior to the twentieth subsequent calendar day, the party giving notice will state a price per share of the shares of each corporation, at which such shares shall be bought or sold. . . . ( ) (d) Within thirty (30) days after the price per share is thus stated, the other spouse shall give written notice of his or her election to buy the first spouse's shares, or to sell his or her shares to the first spouse, at the price per share stated in the notice under part (c) hereof. . . . ( ) (e) If the 'other spouse' shall have failed to make an election as hereinabove provided, the first spouse may elect to buy the 'other spouse's' shares, or to sell his or her shares to the other spouse, at the price per share stated under part 'c' hereof, . . .'

On August 17, 1968, plaintiff submitted to defendant an 'offer to purchase or sell' as follows:

'Pursuant to the Notice of Intention previously given, the undersigned, EDWARD LANDBERG, hereby offers to purchase the entire interest of ROSLYN LANDBERG in both Berkeley Cinema Guild, Inc. and Rosed, Inc. (40%), or sell his own interest in said corporations (60%) at a price of Forty-Five Thousand Dollars ($45,000.00) for 40% Or Sixty-Seven Thousand Five Hundred Dollars ($67,500.00) for 60% With terms as provided in the 'Agreement' among Roslyn Landberg, Edward Landberg and the said corporations executed in triplicate on April 10, 1967, and with the following additional conditions:

'1. The buying stockholder shall have a credit against the initial required down payment (twenty percent (20%) of the purchase price) equal in amount to one-half ( 1/2) of the debts (approximately $11,000.00) now owing by Edward and Roslyn Landberg to said corporations.

'2. The net proceeds derived by Rosed, Inc. from litigation against Howard Davis and Associates, whether by judgment, settlement or otherwise, are to be divided between Edward and Roslyn Landberg in the same proportion as said persons' present interest in the two corporations bear one to the other (60%--40%). If for any reason Rosed, Inc. fails to agree to the division of said proceeds, the purchasing shareholder shall be individually liable to pay the selling shareholder his or her proportionate share of the said proceeds.

'3. The film notes written by Edward Landberg, Jackson Burgess and Pauline Kael, and copyrighted by Berkeley Cinema Guild, Inc. through December 31, 1968, may be forever used by both buyer and seller in publicizing film showings at any theatres owned or controlled by either party.'

On September 11, 1968, defendant responded to the plaintiff as follows:

'In response to your letter of August 17, 1968, I advise you as follows:

'1. Condition (1) does not meet the provisions of Article 10 of the Agreement, which establishes a 'price per share' and payment of the 'price per share.' I have permitted the 'price per share' to be stated as a price in gross, but I have permitted no deviations from the payment provisions of the April 10, 1967, Agreement. The debts owed by Edward Landberg and Roslyn Landberg to the corporations are, according to accounting advice, charges made against Edward Landberg and Roslyn Landberg for payments of taxes and other obligations for the account of the prime lease on the Cinema Theatre property. Thus these obligations are 60% Your liability and 40% Mine, under Articles 18 and 24 of said Agreement. You are invited to confirm this through the corporations' accountant, Mr. Barron.

'Thus I will accept your proviso #1 with the modification that the credit be 60% If you sell, and 40% If I sell.

'2. Condition (2) is acceptable.

'3. Condition (3) does not properly relate to any right to make an offer to purchase or sell under the April 10, 1967, Agreement. I cannot interpret its scope or meaning as written, and since there is no authority for imposing such a condition, I disregard it. The subject matter thereof seems in any event fully covered by Articles 6.a., 6.d., 6.e. and 10.i. of said Agreement.

'Subject to the foregoing advices and to the conditions which follow, I hereby elect to BUY your shares of and interest in Berkeley Cinema Guild, Inc. and Rosed, Inc., pursuant to Article 10.d. of the Agreement of April 10, 1967. . . .' ³

In response to defendant's letter plaintiff replied that he did not feel that her acceptance was valid because defendant had refused to accept the three additional conditions set forth in his offer. To this communication defendant...