Marriage of Chanda

Filed 2/16/07  Marriage of Chanda CA2/8

NOTTO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

INTHE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECONDAPPELLATE DISTRICT

DIVISIONEIGHT

            APPEAL from an order of the Superior Court of Los Angeles County, EliChernow, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

            F. James Feffer for Appellant.

            Arias & Lockwood, Christopher D.Lockwood; Haslam & Perri and Brian G. Thorne for Respondent.

* * * * * *

            A judgment dissolving the marriage between theparties to this appeal, based on a settlement negotiated by their lawyers, wasentered on August 19, 2004.  On January 13, 2005, appellant MulkChandna, formerly the husband, filed a motionto set aside the judgment.  The same judge, retired judge Eli Chernow, whopresided over the settlement and the entry of judgment, denied the motion.  Weaffirm.

FACTS

            Appellant and respondent, Rekha Chandna,^[1] were married in 1975 and separated in 1993.  In 1997,respondent obtained a default judgmentin Nevada dissolving the marriage; the Nevada court set aside this judgment in October 2000 becauseit was procured by misrepresentations made by respondent.

            Appellant filedin California for dissolution of the marriage in February 2000.  (Itappears he learned of the Nevada proceedings and judgment only in March 2000.)  Threeconferences took place between the parties during 2004 in which Judge Chernowwas also involved.  The point of these conferences was either to settle thematter or to narrow the issues for trial.  The parties were represented bycounsel throughout; attorney Carl Osborne was appellant's lawyer.  Theseconferences led to three stipulations that were entered into in April and July2004.

            The first of thetwo stipulations entered into in April 2004 is the one that is germane to thisappeal.  Among other things, this stipulation provided that the funds receivedby respondent from refinancing three parcels of property were to be treated asan advance of community property distributed to respondent.  The sum soobtained by respondent was $184,154.04.  This stipulation, as well as the othertwo, are signed by appellant and respondent, their lawyers, and by JudgeChernow.

            The matter cameto trial before Judge Chernow on August 3, 2004.  It developed, however, that theparties entered into productive settlementdiscussions before the trial got under way.  The parties, who continued tobe represented by counsel, were able to reach an agreement and the terms of thesettlement were placed on the record shortly after 5:00 p.m.

            Under thesettlement, appellant received approximately $149,500 and respondent received$148,694.  The three parcels of property that respondent had refinanced, andfrom which she obtained $184,154.04, were to be sold and the proceeds were tobe equally divided, with respondent agreeing to pay the debt service on thethree parcels.  The settlement made no mention of the provision of the April2004 stipulation under which the $184,154.04 was to be treated as an advancefrom community property received by respondent.

            Appellant's petitionto vacate the judgment alleges that, at the time the settlement was discussedand entered into on August 3, 2004, no one discussed with appellant that he was waivinghis right to charge respondent as having received $184,154.04 from communityassets.

            Appellant'spetition was heard by Judge Chernow on June 15, 2005.  Attorney Osborne testified at this hearing.  According to Osborne, thecredit of $184,154.04 was specifically discussed between counsel, and byOsborne with appellant.  Under the settlement, respondent agreed to pay off allthe encumbrances on the three parcels of property from which she had obtainedthe sum of $184,154.04, and appellant was to receive his share of the proceedsof the sales of these three parcels free and clear of any encumbrances.  Thiswas agreed upon, according to Osborne, specifically in order to provide for thecharge of $184,154.04 under the April 2004 stipulation.  In other words,instead of being charged with having received $184,154.04 of community assets,respondent paid off the encumbrances on these three parcels.

            Judge Chernowdenied the petition, giving his reasons in a statement of decision signed inNovember 2005.  Judge Chernow found that the settlement entered into in August2004 was very favorable to appellant, that attorney Osborne explained thesettlement to appellant, and that appellant understood the terms of thesettlement.

DISCUSSION

            We find no merit in appellant's contention thatattorney Osborne should not have testified because appellant did not waive theattorney-client privilege.  When, as in this instance, the client puts thesubstance of protected communication at issue, the courts will imply a waiverof the attorney-client privilege.  (Southern Cal. Gas Co. v. Public UtilitiesCom. (1990) 50 Cal.3d 31, 40; see generally 2 Witkin, Cal. Evidence (4thed. 2000) Witnesses, § 151, pp. 420-422.)

            Appellant statesin his brief that â€