Elvin v. Elvin

Filed 9/29/06 Elvin v. Elvin CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Arthur Elvin appeals from an order entering judgment based upon settlement of an action between him and various parties, including his brother, Jon Elvin. The settlement agreement determined control of a trust created by Jon and Arthur’s[1] mother, Carol H. Elvin. Arthur appeals from the trial court’s order entering judgment consistent with the settlement agreement, which among other things, replaces Arthur and appoints Jon as the successor trustee of the Carol H. Elvin Trust. Arthur makes three contentions: 1) that he was denied due process because the trial judge coerced him into settling the dispute, 2) that he was denied due process because the trial court did not grant him a continuance to retain counsel, and 3) that he was denied an opportunity for a trial. We conclude that the settlement agreement was enforceable and that Arthur has failed to show any cognizable error. We affirm the judgment.

FACTS

Appellant Arthur Elvin is the son of Carol H. Elvin. In 1990, Carol established a revocable living trust benefiting her three sons, Arthur, Jon, and David Elvin. The trust contained certain real property, tangible personal property, and a securities account. In 1997, Carol executed deeds for the five properties from her revocable trust into five holding trusts. Arthur gained control of the assets and transferred title to the assets to himself and another co-trustee, Diane Kerrick, a woman unknown to either Jon or David. Arthur and Kerrick, as co-trustees in control of the parcels, failed to pay property taxes on the properties and expended the assets of the securities account.

In 2002, Jon and David first discovered that the parcels of real property had been transferred to Arthur and Kerrick as co-trustees. On March 5, 2002, Jon filed a petition to invalidate the five holding trusts and the conveyances of property into them. Alternatively, Jon asked for an order removing Arthur and Kerrick as trustees of the subsequent trusts and appointing himself in their place. After a flurry of activity, a hearing for Jon’s petition was set for June 26, 2002.

Meanwhile, one of the five properties had been transferred to Skyhawk Properties, Inc., following which an amended deed named Minerva House, Inc. as a co-trustee in place of Kerrick. Upon discovering the transfer, Jon filed an ex parte application to suspend the powers of the trustees of the holding trusts “for at least sixty days . . . to allow Petitioner and a representative of Carol H. Elvin time to investigate the relationships between the current trustees and the financial dealings of the trust and report to the Court.” Ultimately, the ex parte application was granted by the superior court, appealed, and affirmed by this court. (Elvin v. Elvin (June 4, 2003, A100318) [nonpub. opn.].)

On August 13, 2002, Jon filed an amended petition adding Skyhawk Properties, Inc. and Minerva House, Inc. as respondents to the March 5, 2002 petition to invalidate the five holding trusts. After the resolution of the litigation regarding the ex parte application, a trial date to resolve this matter was set for March 7, 2005. A mandatory settlement conference was scheduled for February 14, 2005. During the course of this litigation, Arthur had been represented by various attorneys, but on February 28, 2005, Arthur served a substitution of attorney naming himself as his own attorney in propria persona.

On March 7, 2005, the first day of trial, the parties orally agreed to a settlement in open court and on the record. All parties to this litigation were present at the settlement conference. The parties to the action were individually asked if they understood the terms of the agreement and whether their participation in the settlement conference was voluntary. In turn, the parties stated that they understood the terms of the agreement and that they were making the decisions voluntarily. Furthermore, the judge explained the procedure required to turn the settlement into a judgment, and each party stated that he or she understood the procedure.

Among other things, the terms of the settlement required Arthur, Kerrick, and Minerva House, Inc. to execute deeds to the four remaining real property holdings to Jon as successor trustee of the Carol H. Elvin Trust. The parties agreed that the settlement agreement was to be memorialized by counsel for Jon, and signed by all parties to the action. The court explained to the parties that the memorialized settlement was to be circulated among the parties and each of them was to sign the settlement so long as it conformed to the oral agreement made during the settlement hearing. The court further explained that if any of the parties refused to sign the agreement the court would first ensure that the terms conformed to what was on the record, and if so, the court would proceed to “sign it, whether you signed it or not, and you’re going to be bound by it.” All parties voluntarily agreed to these stipulations.

Subsequently, Arthur refused to sign the memorialized settlement agreement. Jon responded by filing a motion requesting the court to enter a judgment consistent with the parties’ settlement agreement and requesting the court clerk to execute the deeds. On June 7, 2005, the same judge that presided over the settlement conference held a hearing on Jon’s motion. The court granted Jon’s motion and judgment was entered consistent with the settlement agreement. Arthur’s timely appeal followed.

DISCUSSION

Appellant has presented arguments unsupported by authority or citations to the record. When a party is challenging a judgment, that party has the burden of showing reversible error by appropriate reference to the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Cal. Rules of Court, rule 14(a).) Where a brief asserts a point without supporting authorities, the reviewing court “ ‘may treat it as waived, and pass it without consideration.’ [Citation.]” (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.) Appellant is in propria persona, but this does not excuse compliance with these requirements. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 196.) However, even if we disregarded deficiencies in appellant’s briefing, we would nonetheless affirm the lower court’s judgment because the settlement agreement was enforceable and appellant’s arguments that he was denied due process are without merit.

The settlement agreement entered into among the parties on March 7, 2005, was enforceable. Appellant expressed his understanding of the terms of the agreement, that his participation was voluntary, and that he understood the procedure by which the settlement would be memorialized. Section 664.6 of the Code of Civil Procedure provides statutory authority for entry of a judgment based on a stipulated settlement. (Casa de Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1189.) Section 664.6 states: “If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Code Civ. Proc. § 664.6.)

When the trial court made its determination to enter judgment pursuant to the settlement agreement on June 7, 2005, the presiding judge had evidence of appellant’s unambiguous statements that he understood the terms of the settlement and that he voluntarily agreed to those terms. The record from the settlement conference clearly indicates that appellant understood the terms of the settlement agreement. For instance, after the court extensively recited the terms of the settlement agreement the following exchange occurred between the court and appellant: “THE COURT: Let me go particularly to Mr. Arthur Elvin. So far you’ve heard these terms, Mr. Arthur Elvin; is that correct?

MR. ARTHUR ELVIN: Yes. Yes, I have, your Honor.

THE COURT: And you have discussed these terms with Ms. Gerard [counsel for Jon Elvin]; is that correct?

MR. ARTHUR ELVIN: Yes, I have, your Honor.

THE COURT: And also with your two brothers, as I understand it; is that correct?

MR. ARTHUR ELVIN: Yes.

THE COURT: You understand those terms; is that correct?

MR. ARTHUR ELVIN: Yes, I do, your Honor.

THE COURT: And you are agreeing to those terms; is that correct?

MR. ARTHUR ELVIN: That’s correct.”

This exchange continued and appellant repeatedly responded that he understood the terms of the agreement and agreed to the terms. Later, the court again addressed appellant to ensure that his participation was voluntary: “THE COURT: And you are agreeing to them [terms of the agreement] of your own free will.

MR. ARTHUR ELVIN: Of my own free will.

THE COURT: And you are doing that voluntarily; is that correct?

MR. ARTHUR ELVIN: I am doing that voluntarily.”

The trial judge in the June 7, 2005 hearing to enter judgment pursuant to the settlement agreement had personally presided over the settlement conference, and was familiar with the case. Based on the court record of the settlement conference and the uncontradicted statements of understanding by appellant, the trial court correctly entered judgment consistent with the settlement agreement as authorized by Section 664.6 of the Code of Civil Procedure.

Appellant contends that he was denied due process during the March 7, 2005 settlement proceedings because the “trial judge threatened“ him if he proceeded with trial. The record directly belies this. Appellant specifically indicated that he was agreeing to the settlement of his own free will and voluntarily.

Appellant also argues that he was denied due process because his March 2, 2005 request for a continuance to allow him to retain counsel was not granted. Appellant’s written request for continuance to retain counsel, filed March 2, 2005, apparently was not accompanied by an order shortening time (so it could be heard before the March 7, 2005 trial date). No hearing date was ever set and the court never ruled on the request. At the settlement conference conducted on March 7, 2005, appellant never mentioned the request for continuance, never asked for it to be ruled upon, and never complained about not having counsel. Appellant did not preserve this issue for appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

As to the merits of appellant’s contention, a party is not given the latitude to substitute himself as counsel in propria persona immediately before trial, and then insist on a continuance to retain counsel, when the opposing parties have relied on the trial date and prepared their case. (Agnew v. Parks (1963) 219 Cal.App.2d 696, 700.) Appellant substituted himself in propria persona on February 28, 2005, seven days before trial, and made his request for a continuance on March 2, 2005, five days before trial. All parties to the action had been aware of the trial date for over three months. Presumably, opposing counsel had prepared his case in anticipation of a March 7, 2005 trial date. Since appellant failed to demonstrate good cause for his untimely motion to continue, the trial court did not err in proceeding with the settlement conference without granting appellant’s request for a continuance.

Finally, appellant claims that he was denied the opportunity for a trial. The final settlement conference took place on the date set for trial. The parties agreed to attempt to settle the matter before the actual trial began. Nothing in the record indicates that appellant objected to settling the case, rather than having a trial. In fact, the record reflects that appellant voluntarily entered the settlement agreement and agreed to the terms presented by all the parties. Appellant, by voluntarily participating in the settlement negotiations and by not asking for the trial to proceed, waived any right to proceed with trial. (In re Aaron B., supra, 46 Cal.App.4th at p. 846.)

DISPOSITION

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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[1] Parties’ shared last name necessitates reference to the parties by their first names.