Filed 2/22/16 Aboolian v. Arutyunyan CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANDRE ABOOLIAN, B262229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC539642)
v.
VAAGN ARUTYUNYAN,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Los Angeles County,
Suzanne G. Bruguera, Judge. Affirmed.
Burlison Law Group and Robert C. Burlison, Jr. for Defendant and Appellant.
Liner LLP, Wayne S. Grajewski and Aimee Y. Wong; Albert Abkarian &
Associates, Albert Abkarian and Moussa A. Helo for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
This is an appeal from an order enforcing a settlement under Code of Civil
Procedure section 664.6, arising from unlawful detainer proceedings involving
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Andre Aboolian (landlord) and Vaagn Arutyunyan (tenant). In the proceedings below,
each party claimed the other party breached the settlement agreement, which provided
landlord would sell the subject property to tenant at fair market value following an
appraisal. The court found tenant breached the agreement by failing to obtain an
appraisal according to the express terms of the settlement agreement. On appeal, tenant
argues mainly that no substantial evidence supports that finding. We disagree and
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therefore affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
The procedural path taken by this case prior to its arrival in this court is both
complex and largely irrelevant to the issues presented for our consideration. For
brevity’s sake, we summarize only the facts necessary to our opinion.
In February 2010, landlord purchased residential property located at
9851 Lanark Street in Sun Valley. At the time of the purchase, tenant had been living in
the property for some time. Landlord and tenant subsequently entered into a lease
agreement and tenant continued to reside at the property.
In May 2012, landlord served tenant with a 60-day notice to quit. After tenant
refused to vacate the property, landlord filed an unlawful detainer action against him. In
lieu of a trial on the unlawful detainer matter, the parties entered into a settlement
agreement (the agreement) allowing tenant to purchase the property from landlord. The
parties agreed to dismiss the unlawful detainer action and stipulated the court would
1
Further section references are to the Code of Civil Procedure unless otherwise
noted.
2
Although the court titled its written ruling as an order, in substance it is
a judgment enforcing a settlement agreement under section 664.6 and we construe it as
such.
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retain jurisdiction to enforce the agreement. The parties also agreed if tenant defaulted
on his obligations under the agreement, judgment and a writ of possession of the
property would be entered by the court in favor of landlord.
The agreement set forth the conditions under which landlord would sell the
property to tenant. Pertinent to our decision, the agreement provided tenant would
purchase the property from landlord at fair market value, to “be determined by an
appraisal conducted by an independent, uninterested, and licensed appraiser.” Further,
tenant was required to “apply for an appraisal via internet, utilizing Wells Fargo or
Bank of America’s internet resources. At which point it is the Parties’ understanding
and intention that Wells Fargo or Bank of America will assign an appraiser to conduct
the necessary appraisal.” [Sic.] As for the escrow, the agreement required tenant to
open escrow within 14 days of the date of the agreement, and provided “[e]scrow
MUST BE CLOSED on or by January 31, 2013. If not, [tenant] stipulates to a Writ of
Possession in favor of [landlord] and will vacate the Subject Property on or by
February 28, 2013.”
After signing the agreement, tenant contacted Bank of America to request an
appraisal. According to tenant, an unidentified bank employee told him banks cannot
select appraisers and must instead use an appraisal management company. At the
suggestion of the bank employee, tenant used the internet to locate an appraisal
management company. He selected Golden State Management Company (Golden
State) and obtained two appraisals on the property.
Landlord refused to accept the appraisal values provided by tenant because they
did not comply with the agreement’s appraisal provisions. However, landlord was also
aware the banks would not select an appraiser for them. Through counsel, landlord
proposed the parties hire three independent real estate agents to provide estimates of fair
market value and then take the average of the three estimates to set the purchase price.
Tenant maintained that his appraisals were valid. Escrow did not open and tenant did
not purchase the property.
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Altogether, the parties filed three motions to enter judgment pursuant to the
settlement agreement. Landlord filed the first motion in the unlawful detainer court
a few months after the deadlines set forth in the agreement passed. The court denied
that motion without prejudice. Subsequently, tenant filed a motion to enter judgment in
his favor. Due to the expansion of the issues between the parties, the unlawful detainer
court transferred the case to a court of general jurisdiction while tenant’s motion was
pending. The newly assigned court denied tenant’s motion with prejudice after finding
tenant failed to establish he complied with the agreement. Pertinent here, the court
found tenant “did not submit admissible evidence showing he obtained appraisals of the
subject property in accordance with the procedure set forth in the settlement
agreement.”
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Landlord then filed a motion to enter judgment pursuant to the agreement. The
court granted landlord’s motion citing, among other things, its prior finding regarding
tenant’s lack of compliance with the agreement’s appraisal provisions. The court
entered judgment for possession of the property against tenant and ordered a writ of
possession in favor of landlord. Tenant timely appeals.
CONTENTIONS
Tenant contends no substantial evidence supports the court’s finding that he
breached the settlement agreement by failing to comply with the provisions related to
property appraisal. In the alternative, tenant contends the agreement was modified by
operation of law to allow him to select an appraisal management company.
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We reject tenant’s suggestion that Code of Civil Procedure section 1008 bars
landlord’s second motion to enter judgment. Section 1008 is inapplicable because the
unlawful detainer court denied landlord’s first motion without prejudice to landlord
renewing the motion at a later time. “Denial of a motion without prejudice impliedly
invites the moving party to renew the motion at a later date, when he can correct the
deficiency that led to the denial.” (Farber v. Bay View Terrace Homeowners Assn.
(2006) 141 Cal.App.4th 1007, 1015 [“[T]the trial court indicated it wanted to reconsider
the fee issue when it denied the first motion without prejudice, so Code of Civil
Procedure section 1008 is inapplicable”].)
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DISCUSSION
Section 664.6 permits the trial court to enter judgment on a settlement agreement
without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998)
60 Cal.App.4th 793, 809-810 (Weddington).) “Factual determinations made by a trial
court on a section 664.6 motion to enforce a settlement must be affirmed if the trial
court’s factual findings are supported by substantial evidence.” (Id. at p. 815, citing
In re Marriage of Assemi (1994) 7 Cal.4th 896, 911; see also Osumi v. Sutton (2007)
151 Cal.App.4th 1355, 1360 [factual findings related to section 664.6 motion “ ‘are
subject to limited appellate review and will not be disturbed if supported by substantial
evidence’ ”].) We independently review questions of law. (Weddington, supra, at
p. 815.)
Tenant contends the court erred by finding that he breached the agreement’s
appraisal provisions, which finding forms the basis of the court’s denial of his motion
for judgment and the judgment in favor of landlord. We disagree.
As tenant notes, the agreement requires the fair market value of the property to
“be determined by an appraisal conducted by an independent, uninterested, and licensed
appraiser.” Tenant argues he complied with this provision, and the parties’ contractual
intent, because the two appraisers who rendered appraisals in this case were, as
required, independent, uninterested, and licensed. Even assuming tenant is correct on
that issue, the analysis does not end there.
The agreement requires tenant to “apply for an appraisal via internet, utilizing
Wells Fargo or Bank of America’s internet resources. At which point it is the Parties’
understanding and intention that Wells Fargo or Bank of America will assign an
appraiser to conduct the necessary appraisal.” [Sic.] We reject tenant’s contention that
he complied with the agreement by using “the bank’s internet resources which, under
the law, are appraisal management companies, such as Golden State.” The evidence
cited indicates tenant simply followed an unidentified bank employee’s suggestion that
he conduct an internet search. Specifically, tenant’s declaration submitted in opposition
to landlord’s motion for judgment states: “I contacted Bank of America to inquire about
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arranging for an appraiser to appraise the subject property. I was advised that the banks
can no longer appoint appraisers and that the parties must now use (as do the banks, and
thus this is the bank’s internet resource) an appraisal management company.
Accordingly, as I was told by the bank employee, I went on the internet and searched
for appraisal management companies and located Golden State Appraisal Management
Co. LLC (“Golden State”). Golden State assigned the appraisers and I had no
involvement in their selection other than contacting Golden State.” Given even the
most generous reading, this evidence does not establish, as tenant’s counsel represented
at oral argument, that either of the banks referred tenant to Golden State. Nor does this
evidence indicate tenant used any resource supplied by Bank of America or
Wells Fargo, as required. To the contrary, tenant’s declaration indicates he simply ran
an internet search and selected one of the companies the search revealed. The fact that
tenant used the internet to find an appraisal management company plainly does not
demonstrate compliance with the agreement’s requirement that he “ ‘apply for an
appraisal via internet, utilizing Wells Fargo or Bank of America’s internet resources’ ”
with the intended result that one of the banks —rather than tenant—would select the
appraiser.
Further, it is undisputed tenant unilaterally selected Golden State—an action
which does not comply with either the letter or the spirit of the appraisal provision. The
parties never agreed to modify the agreement to permit the use of an appraisal
management company. More to the point, the parties never agreed tenant could select
an appraisal management company. The agreement evidences the parties’ intention that
a neutral party—and specifically not tenant—should select an appraiser. To the extent
the parties were required by circumstance to use an appraisal management company,
tenant’s decision to select a company without consulting landlord is inconsistent with
the parties’ contractual intent.
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It appears both parties recognized at the time that neither Bank of America nor
Wells Fargo would appoint an appraiser for their transaction.4 Tenant argues that
because the banks were prohibited by law from appointing an appraiser as the parties
agreed, the settlement agreement was modified by operation of law to allow him to
select an appraisal management company. Tenant directs our attention to Civil Code
section 1090.5 and the California Finance Lenders Law (Fin. Code, § 22000 et seq.) and
asserts, correctly, these statutes are designed to ensure the independence and neutrality
of appraisers involved in real estate transactions. (See Civ. Code § 1090.5, subd. (a)
[“No person with an interest in a real estate transaction involving a valuation shall
improperly influence or attempt to improperly influence the development, reporting,
result, or review of that valuation, through coercion, extortion, bribery, intimidation,
compensation, or instruction”]; Fin. Code § 22755, subd. (k) [making it unlawful for
a mortgage loan originator to “make any payment, threat, or promise, directly or
indirectly, to any appraiser of a property, for the purposes of influencing the
independent judgment of the appraiser with respect to the value of the property”].)
However, tenant’s argument that these statutes somehow modified the parties’
settlement agreement to authorize tenant’s unilateral selection of an appraisal
management company is untenable. Nothing in the cited statutes supports tenant’s
argument and tenant fails to provide us with any authority which would support such
a result. In sum, substantial evidence supports the court’s conclusion that tenant failed
to comply with the appraisal provisions of the settlement agreement.
4 To the extent tenant’s counsel suggested at oral argument that tenant’s
performance should have been excused because it was not possible to comply with the
letter of the agreement, we note tenant did not raise this argument in the trial court or in
his briefs on appeal. He has therefore forfeited the argument. (See Title G. & T. Co. v.
Fraternal Finance Co. (1934) 220 Cal. 362, 363 [“Appellate courts will notice only
those assignments pointed out in the brief of an appellant, all others are deemed to have
been waived or abandoned”]; Premier Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical) [“[W]e
ignore arguments, authority, and facts not presented and litigated in the trial court”].)
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In the alternative, tenant asserts his compliance with the agreement was excused
because landlord breached the agreement. Specifically, tenant contends landlord
breached the agreement by rejecting tenant’s proffered appraisals and by refusing to
sign the documents necessary to open escrow for the sale of the property. This
argument is unavailing. As discussed ante, substantial evidence supports the court’s
finding that tenant failed to comply with the settlement agreement’s appraisal
provisions. Accordingly, landlord was well within his rights to reject tenant’s appraisals
and the fair market values they set forth. Further, because the parties did not determine
the sale price of the property, landlord reasonably refused to sign the documents
necessary to open escrow on the sale.
Because we conclude the court’s finding that tenant failed to comply with the
appraisal provisions of the agreement is supported by substantial evidence and we
affirm the judgment on that basis, it is unnecessary for us to address tenant’s additional
argument regarding compliance with the rent provisions of the settlement agreement.
We also decline to address tenant’s argument that the judgment is ineffective against his
wife, as there is no evidence in the record suggesting he raised that issue below.
5
(Premier Medical, supra, 163 Cal.App.4th at p. 564.)
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By order dated September 25, 2015, we deferred ruling on tenant’s motion for
reconsideration of this court’s ruling on landlord’s motion for judicial notice. The
motion for reconsideration is hereby denied.
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DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ALDRICH, J.
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