Filed 6/26/14 Shaheen Dublin v. Haroutoonian CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


SHAHEEN DUBLIN, LLC,
         Plaintiff and Respondent,
                                                                     A138839
v.
ROBERT HAROUTOONIAN,                                                 (Alameda County
                                                                     Super. Ct. No. VG10509664)
         Defendant and Appellant.


                            I. INTRODUCTION AND BACKGROUND1
         In April 2010, plaintiff Shaheen Dublin, LLC sued defendant Robert Haroutoonian
for breach of a commercial lease. The lease refers to the landlord as “Dublin/Shaheen,
LLC,” instead of using plaintiff’s correct name (Shaheen Dublin, LLC).
         On February 13, 2013, plaintiff moved under Code of Civil Procedure2 section
664.6 for entry of judgment pursuant to a settlement reflected in a written stipulation
signed by the parties in July 2011. The stipulation uses, in different locations, the names
Shaheen Dublin, LLC and Dublin/Shaheen, LLC. The trial court concluded the
stipulation was a writing, signed by plaintiff and Haroutoonian, “for settlement of the
case,” pursuant to which the court could enter judgment in plaintiff’s favor under section
664.6. The court granted plaintiff’s motion and entered judgment for plaintiff and against
Haroutoonian, and dismissed other defendants.

         1
         We provide additional background facts in the sections of this opinion addressing
the parties’ arguments on appeal.
         2
             All undesignated statutory references are to the Code of Civil Procedure.

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       On appeal, Haroutoonian contends (as he did in opposition to plaintiff’s section
664.6 motion) that, under Business and Professions Code section 17918, plaintiff’s use of
the fictitious business name (FBN) Dublin/Shaheen, LLC without filing a fictitious
business name statement (FBN statement) precludes plaintiff from maintaining this
action. We conclude Haroutoonian waived this objection by failing to raise it earlier in
the trial court proceedings. We therefore affirm.
                                     II. DISCUSSION
A.     Haroutoonian Waived His Objection Based on the FBN Statutes
       “Code of Civil Procedure section 664.6 provides a summary procedure to enforce
a settlement agreement by entering judgment pursuant to the terms of the settlement.
[Citation.] Section 664.6 states that if the parties to pending litigation enter into a
settlement either in a writing signed by the parties or orally before the court, the court,
upon a motion, may enter judgment pursuant to the terms of the settlement.”3 (Hines v.
Lukes (2008) 167 Cal.App.4th 1174, 1182.)
       As noted, Haroutoonian contends the court should not have entered judgment
pursuant to section 664.6 because, under Business and Professions Code section 17918,
plaintiff’s use of an FBN (Dublin/Shaheen, LLC) precludes it from maintaining this
action. A partnership, corporation, limited liability company or individual doing business
under a fictitious name must file an FBN statement. (Bus. & Prof. Code, §§ 17910,
17915; see id. §§ 17900, subd. (b)(5), 17902.) Business and Professions Code section
17918 provides: “No person transacting business under a fictitious business name
contrary to the provisions of this chapter . . . may maintain any action upon or on account
of any contract made, or transaction had, in the fictitious business name in any court of
this state until the fictitious business name statement has been executed, filed, and

       3
         Section 664.6 states: “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.”

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published as required by this chapter. . . .” Haroutoonian argues plaintiff has not filed an
FBN statement for the name Dublin/Shaheen, LLC, and therefore may not maintain an
action based on any contract or transaction it entered in that name (such as the underlying
lease), until it files the required statement. The trial court concluded Haroutoonian’s
objection on this ground was untimely. We agree.
       A defendant’s objection that a plaintiff has not complied with the FBN filing
requirements is an objection that the plaintiff lacks the capacity to sue. (See Bryant v.
Wellbanks (1927) 88 Cal.App. 144, 152; 5 Witkin, Cal. Procedure (5th ed. 2008)
Pleading, §§ 1133, 1135, pp. 559, 560–561.) Under the Code of Civil Procedure, a
defendant who wishes to object that the plaintiff lacks the capacity to sue must raise the
objection by demurrer (if the lack of capacity appears on the face of the complaint) or in
the answer (if the lack of capacity does not appear on the face of the complaint); if the
defendant does not do so, the objection is waived. (§§ 430.10, subd. (b), 430.30,
subds. (a) & (b), 430.80, subd. (a); V & P Trading Co., Inc. v. United Charter, LLC
(2012) 212 Cal.App.4th 126, 133–134; accord, Bryant v. Wellbanks, supra, at p. 152.)
       Applying these principles, Haroutoonian waived any objection that plaintiff lacked
the capacity to sue based on noncompliance with the FBN statutes. Haroutoonian did not
demur to the complaint. In his answer, filed in June 2010, he asserted several affirmative
defenses, but did not include an affirmative defense that plaintiff lacked the capacity to
sue. Haroutoonian’s affirmative defense asserting generally that the complaint failed to
state a cause of action was not sufficient to raise the defense of lack of capacity to sue.
(Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1605.) Haroutoonian never
sought leave to amend his answer to add such a defense. (See id. at p. 1604, fn. 5.) In
July 2011, more than one year after he filed his answer, Haroutoonian entered a written
stipulation settling the case, apparently without raising any objection that plaintiff lacked
the capacity to sue based on noncompliance with the FBN statutes.
       Finally, on February 5, 2013 (i.e., after an additional one and one-half years had
passed, and about one week before plaintiff filed its section 664.6 motion), Haroutoonian
filed a case management statement (and an accompanying declaration of counsel), in


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which he again did not object to plaintiff’s use of an FBN in the lease or in the
stipulation. Instead, in these filings, Haroutoonian confirmed he had entered a settlement
with plaintiff, had failed to pay the amounts due under the settlement, and did not oppose
the entry of judgment for plaintiff pursuant to the settlement. Haroutoonian’s counsel
stated in his declaration that: (1) he believed Haroutoonian had no defense to the entry of
judgment for plaintiff, (2) Haroutoonian “remains bound by and does not contest the
settlement,” and (3) “Haroutoonian and I remain ready, willing, and able to abide by the
settlement, including accepting and not contesting Shaheen Dublin’s entry of Judgment
pursuant to the settlement . . . .” Similar statements appear in Haroutoonian’s case
management statement. Haroutoonian then raised the FBN issue for the first time in his
March 14, 2013 opposition to plaintiff’s section 664.6 motion.
       When a defendant fails to assert a “plea in abatement” such as lack of capacity to
sue at the outset of litigation, “ ‘ “ ‘the court will be rarely justified in permitting the
defense to be made later.’ ” ’ ” (V & P Trading Co., Inc. v. United Charter, LLC, supra,
212 Cal.App.4th at p. 137.) Because Haroutoonian entered a written settlement of the
case in July 2011 without raising the lack of capacity defense, expressly confirmed in
February 2013 that he had no objection to the entry of judgment for plaintiff, and did not
raise the defense until March 2013 (nearly three years after the action was filed) and only
then in opposition to plaintiff’s section 664.6 motion, we conclude Haroutoonian was not
entitled to raise plaintiff’s lack of capacity as a basis for opposing the section 664.6
motion. (See V & P Trading Co., Inc. v. United Charter, LLC, supra, at p. 137
[defendant could not raise plaintiff’s lack of capacity to sue as a basis for opposing
motion to compel discovery, where defendant did not plead that defense in its answer and
did not raise it for more than nine months after the action was commenced].)
       Hand Rehabilitation Center v. Workers’ Comp. Appeals Bd. (1995) 34
Cal.App.4th 1204 (HRC), on which Haroutoonian relies, does not establish his objection
was timely. In HRC, the appellate court upheld the Workers’ Compensation Appeals
Board’s (WCAB) decision to reject a medical provider’s lien claim because the provider
(HRC) failed to file an FBN statement after the workers’ compensation judge gave it 45


                                                4
days to do so. (HRC, supra, 34 Cal.App.4th at pp. 1207–1208, 1209, 1213–1215.) The
appellate court rejected HRC’s argument that the employer in the workers’ compensation
proceeding had waived the FBN issue by failing to raise it in its “first objection letter”;
the court stated “no authority” required raising the issue at that time. (Id. at p. 1215.)
Here, in contrast, the principle that a defendant in a civil action must raise the defense of
lack of capacity to sue in a demurrer or answer “derives from the governing provisions in
the Code of Civil Procedure.”4 (V & P Trading Co., Inc. v. United Charter, LLC, supra,
212 Cal.App.4th at pp. 133–134, citing §§ 430.10, subd. (b), 430.30, subds. (a) & (b),
430.80, subd. (a).) Further, while the HRC court concluded the employer raised the FBN
issue in a timely manner (i.e., “well before the lien hearing”) (HRC, supra, 34
Cal.App.4th at p. 1215), Haroutoonian waited nearly three years after the action was filed
to raise the FBN issue (in his March 14, 2013 opposition to the section 664.6 motion).
We reject Haroutoonian’s suggestion that he was entitled to raise the FBN issue at any
time before the March 26, 2013 hearing on that motion.
       Haroutoonian also suggests his objection was timely because the trial court raised
the FBN issue. In a January 22, 2013 order, the trial court stated that, based on the
complaint’s allegations, it was uncertain whether plaintiff had standing to sue and
whether the FBN statutes applied to the defendants named in the complaint. But the
court’s references to these potential issues did not preclude the court from ultimately
determining that Haroutoonian’s March 2013 objection based on the FBN statutes was
untimely, especially given that, after the court’s January 22, 2013 order, Haroutoonian
and his counsel filed the February 5, 2013 case management statement and declaration
confirming Haroutoonian had no objection to the entry of judgment for plaintiff.




       4
        We note the appellate court in HRC held the WCAB was a “court” and therefore
Business and Professions Code section 17918 (which prohibits maintaining an action in
“court”) applied (HRC, supra, 34 Cal.App.4th at p. 1214), but the appellate court did not
discuss or apply the above provisions of the Code of Civil Procedure.


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B.     Attorney Fees and Sanctions
       Plaintiff requests appellate attorney fees based on provisions of the lease and the
stipulation. When a statute or contract authorizes the prevailing party to recover attorney
fees, that party is entitled to attorney fees incurred at trial and on appeal. (Douglas E.
Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) Plaintiff may
file in the trial court a motion for appellate attorney fees, and the trial court shall consider
whether plaintiff is entitled to attorney fees on appeal and, if so, the amount. (See
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129
Cal.App.4th 1228, 1267 [directing trial court to make these determinations].)
       Plaintiff also requests sanctions on the ground this appeal is frivolous. But
plaintiff has not filed a separate sanctions motion as required by California Rules of
Court, rule 8.276(b)(1). “Sanctions cannot be sought in the respondent’s brief.” (Cowan
v. Krayzman (2011) 196 Cal.App.4th 907, 919.) We deny the sanctions request.




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                                    III. DISPOSITION
       The judgment is affirmed. Plaintiff shall recover its costs on appeal. Upon a
motion filed by plaintiff, the trial court shall determine whether plaintiff is entitled to
attorney fees on appeal and, if so, the amount.




                                                   ______________________
                                                    Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Dondero, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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