Filed 10/25/17 Bergland v. Isch CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----

HARRY W. BERGLAND, as Trustee, etc.,

Plaintiff and Respondent,

v.

RUDOLF V. ISCH,

Defendant and Appellant.


C077965

(Super. Ct. No. 06PR01758)




In 2007, in connection with claims of self-dealing, the trial court removed Rudolf Isch as trustee of a family trust. In 2009 Rudolf settled litigation regarding his trust management by agreeing to pay the trust half a million dollars, plus a $100,000 assessment for fees and costs if his first payment was late; he also signed stipulated judgments to effectuate the terms of the settlement agreement. Four years later, when the successor trustee tried to collect on the judgment debt by writ of execution, Rudolf made a postjudgment motion to stay enforcement of the writ of execution, to quash the writ, to set aside the judgment on which the writ was based and for set-off, asserting arguments regarding the timing of his 2009 payments, the fairness of the $100,000 penalty, and his right to credits and offsets. The trial court denied Rudolf’s motion as a collateral attack on a final judgment and also denied Rudolf’s set-off requests.
Rudolf appeals from the denial of his postjudgment motion, arguing that because the trial court exceeded its jurisdiction in 2009, the judgment is void and his motion should have been granted. We conclude the 2009 judgment was not void and the trial court properly rejected Rudolf’s efforts to thwart collection.
We will affirm the trial court’s order and vacate the stay orders previously issued by this court.
BACKGROUND
Rudolf’s father died in 2004, leaving his estate in a trust to be divided equally among his three surviving children, Rudolf, Erica and Vincent. A 1998 amendment to the trust limited Vincent’s distributions to what the trustee deemed necessary for his health, education and maintenance. In 2006, Erica sued Rudolf because, in his role as trustee, he transferred about $1.8 million of the trust assets to himself and distributed only $385,000 to Erica and $328,000 to Vincent. In 2007 the trial court removed Rudolf as trustee and ordered him to promptly turn over all trust assets to a successor trustee.
The parties resolved the trust litigation in 2009 when Rudolf, Erica, Vincent and the successor trustee agreed that Rudolf would return $500,000 to the trust in two installments. The parties entered into two alternative stipulations for entry of judgment to effectuate the agreement and the trial court entered both judgments on October 23, 2009, the same day it approved the settlement agreement and ordered the parties to comply with it.
The alternative stipulations for entry of judgment were based on whether Rudolf paid $375,000 to the trust on October 27, 2009. If he did, there was a judgment saying Rudolf would pay $125,000 to the trust on October 27, 2010, and if he did not pay the $125,000 on time, interest would accrue. There is no record of any effort by the successor trustee to enforce the $125,000 judgment.
The parties stipulated to entry of a different judgment if the $375,000 was not paid on time. The judgment identified the debt as $500,000 plus an agreed-upon $100,000 for attorney fees and costs of suit, for a total of $600,000. The $600,000 judgment said it would be null and void if Rudolf paid the first $375,000 by October 27, 2009, but it went on to state that the extra $100,000 would not be waived for anything less than full on-time payment and, in the event of a late payment, 10 percent annual interest would accrue.
Rudolf signed both stipulated judgments and the trust’s lawyer told him a few days later the trial court had entered the judgments; she reminded him that if he did not pay the first installment on time, she would record the $600,000 judgment.
Rudolf paid only $160,000 by the October 27, 2009 deadline. The successor trustee agreed to accept an additional $215,000 by November 2, 2009, but Rudolf only paid $207,000 that day, triggering a query from the successor trustee about the remaining $8,000. Rudolf paid another $8,000 on November 16, 2009 from a trust account the trustee said Rudolf had been ordered to turn over in 2007.
On November 23, 2009, the trustee’s lawyer filed a declaration with the trial court stating that because Rudolf failed to satisfy the terms of the settlement agreement, the trial court should issue an abstract of judgment for $600,000. On November 25, 2009, the abstract of judgment for $600,000 was recorded in Sonoma County, where Rudolf owned a large house on 10 acres of land. There is no record that Rudolf made any further payments to the trust or raised any objection to the judgment or to the successor trustee’s declaration. In February 2010, the successor trustee filed a partial satisfaction of judgment, crediting Rudolf for paying $375,000.
In October 2012, Rudolf objected to the successor trustee’s collection efforts, arguing he had paid the $375,000 on time and the trustee had taken more than $126,000 from his E-Trade account in 2009, so he owed nothing more. Rudolf added that the judgments did not reflect what the parties agreed to in the settlement agreement. The trial court gave Rudolf several months to file a motion to invalidate the judgments, but in October 2013, having received no direct challenge to the judgments, the trial court ordered a debtor’s examination to go forward. In December 2013, the clerk of the court issued a writ of execution based on a total judgment of $600,000, with a credit of $375,000, plus fees and accrued interest totaling $316,110.21. When the successor trustee later used the writ to launch foreclosure proceedings against Rudolf’s Sonoma property, Rudolf made a postjudgment motion to stay enforcement of the writ of execution, to quash the writ, to set aside the judgment on which the writ was based and for set-off, essentially raising the same arguments the trial court had rejected a couple of months earlier.
The trial court denied Rudolf’s motion. It pointed out that the 2009 judgments may have been voidable, but Rudolf did not respond to the court’s invitation to file a direct attack on the judgment, so the judgments were final and not subject to Rudolf’s collateral attack.
Additional facts are included in the discussion.
DISCUSSION
A
Rudolf argues the judgment for $600,000 was not entered the way the settlement agreement terms provided, that it was only conditional and that it imposed an illegal penalty. He reasons that a writ of execution cannot be issued to enforce a judgment void on the face of the record and the settlement agreement did not provide for entry of two judgments before the first payment was due, so entering both of them exceeded the court’s jurisdiction and rendered them void. But, in support of that proposition, he cites Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1088, a case that holds to the contrary. The O’Connor court held that if a court has fundamental jurisdiction over the parties and the subject matter, an action in excess of its jurisdiction is not void, but only voidable. (Ibid.) A party may be precluded from challenging such an action based on principles of estoppel, res judicata, or the disfavor of collateral attack. (Ibid.)
Here, the trial court’s order stated: “[T]his is not a situation in which circumstances prevented [Rudolf] from attacking the multiple judgments earlier. Thus even assuming that the judgments (which are plainly not void) were voidable at the time they were entered, they are now final and thus no longer challengeable by collateral attack.” In other words, because the trial court had jurisdiction over the subject matter and the parties and there was no direct attack on the judgment, the long-settled rule applied: the final judgment is immune from collateral attack. (Pacific Mutual Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725.)
In 2012, Rudolf claimed he should not be subject to collection because he had met the requirements of the settlement agreement and, to the extent he had not, the agreement and the judgment on which it was based were unfair. But the trustee disputed Rudolf’s claim of timely payment. More importantly, as the trial court clearly stated, all of the arguments Rudolf raised could have been raised before the judgment became final. Judgment was entered on October 23, 2009, and the trustee’s declaration saying the payment was late was filed just a month later; the $600,000 judgment was recorded two days after that. The trial court was correct in not re-opening a final judgment for a party who acquiesced to it before it became final. (Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, 1021-1026.)
Rudolf now claims the clerk of the court should not have issued a writ of execution without having the trial court first determine whether his $375,000 payment was late, whether the $100,000 payment was an unlawful penalty, and whether an open and indefinite extension of time had been created. But Rudolf’s arguments are not adequately supported, and in any event the trial court ignored the arguments because it correctly determined it had no jurisdiction to invalidate or change the final judgment. Rudolf’s contentions lack merit.
B
Rudolf makes two claims for set-off from the judgment debt. His first claim involves a $193,000 arbitration award based in part on Vincent’s July 2007 declaration assigning part of his interest in the family trust to Rudolf. This claim is not well taken because the settlement agreement released all claims between Rudolf and Vincent in 2009 and also because neither the trust nor the third trust beneficiary is named in the 2014 arbitration award. Mutuality of parties is essential to a set-off against a judgment. (Harrison v. Adams (1942) 20 Cal.2d 646, 650.)
Rudolf also claims an offset for an amount the trustee “improperly withdrew” from an E-Trade account in November 2009. Evidence in the record establishes that the E-Trade account the trustee purportedly “confiscated” was held in the name of the trust in 2007 when Rudolf was ordered to transfer all trust accounts to the new trustee, making it part of the dispute resolved in the final judgment. If Rudolf owned some or all of the E-Trade funds, his protest is far too late.
DISPOSITION
The trial court’s order is affirmed. The stay orders previously issued by this court are vacated.



/S/
MAURO, J.


We concur:


/S/
ROBIE, Acting P. J.


/S/
MURRAY, J.