Filed 3/11/16 Meida v. Maida CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    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."


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       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

Productions, Ltd. (1987) 193 Cal.App.3d 824, 827 [new depositions that simply

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.




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