Filed 12/24/13 Secord v. Massingham & Associates Mgt., Inc. CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


JONATHAN SECORD,                                                     H038290
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CV172115)

         v.

MASSINGHAM & ASSOCIATES
MANAGEMENT, INC.,

         Defendant and Appellant.



         Defendant Massingham & Associates Management, Inc. (Massingham) brings this
appeal to challenge an order enforcing a settlement agreement with plaintiff Jonathan
Secord. Even disregarding the procedural defects in Massingham's appeal, we find the
settlement issue it raises to be moot. Accordingly, we will dismiss the appeal.
                                                     Background
         According to Massingham, "[t]he principal facts relevant to this appeal are not in
dispute." On the contrary, they are very much in dispute. Nevertheless, because the
issues between the parties are of only academic significance, the factual discrepancies are
not material to the outcome of the appeal.
         In January 2010, plaintiff Secord, a homeowner and member of the Siena at
Montecito Vista HOA (Siena), unsuccessfully ran for election to the Siena board of
directors. Secord brought suit to invalidate the election, naming both Siena and
Massingham, Siena's management company. Siena cross-complained against
Massingham and two other corporations. Secord obtained a temporary restraining order
and was thereafter elected to the board. He then sought to recover his legal fees and court
costs.
         Secord and his attorney attended an afternoon settlement hearing on October 26,
2011, presided over by temporary judge Phil Young. Also present were Siena's counsel,
John Downing, who informed the court that for purposes of the settlement he represented
all the defendants, including Massingham. The parties announced that they had agreed
on settlement terms, which called for specified payments to Secord from all defendants.
Massingham was to pay $5,500, mutual releases would be drafted, and should
enforcement of the agreement be necessary, attorney fees would be payable to the
prevailing party. Downing offered to draft the written agreement, and he confirmed that
he represented all of the defendants.
         When the Hon. Patricia M. Lucas appeared, she recited her understanding that the
parties intended this agreement to be enforceable, and she obtained from Downing a date
for dismissal with prejudice of all claims in the action.
         What was not revealed at the settlement hearing was a private agreement between
Downing and Massingham's counsel, Jeffrey Cereghino, in which Massingham agreed to
contribute $5,500 in exchange for Siena's consent to a one-year extension of
Massingham's management contract. Downing did not believe he needed to make this
agreement part of the record, because Secord was not part of the negotiations between the
two cross-defendants, Massingham and Siena.
         When a draft of the written settlement agreement was circulated, Massingham
added a new term extending its management contract.1 Secord opposed the new


1 The inserted language stated the following: "In exchange for Massingham's settlement
contribution herein, Sienna [sic] agrees to extend Massingham [sic] exisiting [sic]

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language, and the parties agreed that the extension should be provided in a separate
agreement rather than the global release. Massingham and the other defendants paid their
settlement shares, but Massingham did not sign the written agreement.
       By this time Secord was on the Siena board as its treasurer. On December 29,
2011, the board voted (2-1) to terminate Massingham's contract and notified the company
of its decision. The next day, however, the board rescinded that decision (with Secord
voting against rescission).
       On January 23, 2012, Secord moved to enforce the settlement and award attorney
fees pursuant to the agreement. On March 14, 2012, Judge Lucas found Secord to be
"clearly the prevailing party" and awarded him $9,878.46 for attorney fees and costs, for
which Siena and Massingham were jointly and severally liable. Following a tentative
ruling entered earlier (which is not in the record), the court entered judgment on the
motion on April 5, 2012, finding "uncontradicted evidence" that in the settlement
proceedings Massingham had been represented by Downing. The court therefore granted
the motion as to both Siena and Massingham and restated its prior award of attorney fees.
                                         Discussion
1. Defective Notice of Appeal
       Massingham fails at the outset to present a proper appeal. It asserts that it is
appealing from the April 5, 2012 judgment, but its notice of appeal and Civil Case
Information Statement indicate that it is appealing from the order three weeks earlier,
which awarded Secord attorney fees. Thus, only the correctness of the attorney fees
order is properly before us and we need not address the superior court's decision to



contract for a [sic] one year commencing upon the last day of the present contract and
Massingham agrees to provide management services pursuant to the contract for a period
of 45 days without charge commencing at the beginning of the contract extension. Those
services shall not include any extra or special services beyond the scope of the monthly
services set forth in the existing management contract."

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enforce the settlement agreement. Nevertheless, given the rules prescribing liberal
construction of notices of appeal, and inasmuch as the notice of appeal was filed after the
entry of judgment, we may construe it as having been taken from the judgment rather
than from the preceding order awarding attorney fees. As Secord does not object to such
treatment, we proceed to address Massingham's assertion of error in enforcing the
settlement.
2. Mootness
       The premise of Massingham's position on appeal is that the one-year extension of
its management contract was a "material and essential term" of the settlement. Because
this extension provision "was never articulated" at the settlement hearing, he argues,
"there was no meeting of the minds and no settlement."
       This court is mystified as to what Massingham hopes to accomplish in this appeal.
If, as Massingham maintains, a condition of settlement was the contract extension, the
record demonstrates that it obtained that extension. The full settlement amount has been
paid. Now, having agreed to settle Secord's demand for attorney fees, Massingham is
incurring even more expense by challenging the enforcement of the order, even though it
received exactly what it had demanded without further judicial intervention.
Massingham professes to seek a remand "for further dispensation"; but he does not
identify what action should be taken next or what benefit he can obtain from a reversal.
       Secord raised the question of mootness in his respondent's brief, but Massingham
elected not to reply. We invited Massingham to submit an informal letter brief
explaining why this appeal should not be dismissed as moot, and it accepted the
invitation. Yet it continued to assert error without acknowledging that it received what it
had demanded. Instead, Massingham suggested that the issue "will be moot," and posits
issues over the attorney fee award and satisfaction of judgment, which were, of course,
not raised in its appellate brief. We now conclude that the appeal should be dismissed.



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       "It is well settled that an appellate court will decide only actual controversies."
(Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) "An appellate court will not
review questions which are moot and which are only of academic importance. It will not
undertake to determine abstract questions of law at the request of a party who shows that
no substantial rights can be affected by the decision either way." (Keefer v. Keefer
(1939) 31 Cal.App.2d 335, 337; see also City of Lodi v. Randtron (2004) 118 Cal.App.4th
337, 363 [question becomes moot "when the appellate court is unable to grant any
effectual relief or render an opinion that affects the matter at issue"; MHC Operating
Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [appeal is
subject to dismissal for mootness if reviewing court's decision can have no practical
impact or provide effective relief]; Mercury Interactive Corp. v. Klein (2007) 158
Cal.App.4th 60, 78 [same].) This principle is applicable here, where Massingham has
asked for a decision that at best would confirm that the contract-extension term was
included in the settlement, but would have no practical impact on the relationship
between the parties because Massingham received exactly what it wanted from the
settlement.
                                         Disposition
       The appeal is dismissed.


                                           ELIA, J.


WE CONCUR:
       RUSHING, P. J.
       PREMO, J.




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