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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
BANK OF ORANGECOUNTY,
Plaintiff and Respondent,
v.
ALBERT S. AZAR et al.,
Defendants and Appellants.
G035918
(Super. Ct. No. 02CC00338)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, David C. Velasquez, Judge. Reversed and remanded with directions.
Gittler & Bradford, Stephen H. Marcus and Randy A. Berg, for Defendants and Appellants.
Nixon Peabody, Paul J. Hall, Walter T. Johnson and James D. Griffioen, for Plaintiff and Respondent.
In this case, the court entered judgment, ex parte, at the request of plaintiff Bank of Orange County (BOC). BOC argued that a settlement agreement previously entered into between the parties provided for an ex parte entry of judgment in accord with a neutral appraiser's valuation of shares of stock owned by defendants. By contrast, defendants argued the appraiser's decision amounted to an arbitration pursuant to Code of Civil Procedure sections 1280 et seq. (the Arbitration Act), and that they were consequently entitled to a noticed hearing, in accordance with the requirements of those provisions, before that decision could be considered â€
Description
In this case, the court entered judgment, ex parte, at the request of plaintiff Bank of Orange County (BOC). BOC argued that a settlement agreement previously entered into between the parties provided for an ex parte entry of judgment in accord with a neutral appraiser's valuation of shares of stock owned by defendants. By contrast, defendants argued the appraiser's decision amounted to an arbitration pursuant to Code of Civil Procedure sections 1280 et seq. (the Arbitration Act), and that they were consequently entitled to a noticed hearing, in accordance with the requirements of those provisions, before that decision could be considered "final" for purposes of entering a judgment. Of course, only if the agreement were clear on its face in favor of plaintiff's "ex parte" interpretation could plaintiff prevail in an ex parte proceeding. Any ambiguity concerning whether the ex parte procedure was applicable should have been resolved only through a court hearing a regular, noticed hearing.
And court conclude the parties' agreement did not clearly provide for an ex parte entry of a judgment in the circumstances of this case. Instead, the ex parte judgment procedure outlined in the agreement was applicable only in the event that a share value was determined in an earlier phase of the agreement, by two party appraisers reaching a consensus regarding the fair price of the shares. Consequently, the court erred in doing so.
