Filed 2/13/20 Millstein v. Papageorge CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

DAVID J. MILLSTEIN,

Plaintiff and Respondent,

v.

ARES PAPAGEORGE et al.,

Defendant and Appellant.

A152986

(City & County of San Francisco

Super. Ct. No. CGC-14-541853)

MEMORANDUM OPINION

In this action to collect attorney fees, the trial court granted the motion of respondent David J. Millstein (Millstein) to enforce the settlement agreement under Code of Civil Procedure section 664.6 and denied a motion to set aside the settlement under section 473, subdivision (b). We affirm.

I. BACKGROUND

Appellant Ares Papageorge (Ares), his mother Katherine Papageorge (Katherine), and her company Papageorgiou, Inc. dba Royal Oak Bar were sued after Ares allegedly assaulted a customer at a bar owned by Katherine. Millstein was retained by Ares to represent him in this action. Katherine was separately represented in case a conflict arose, but it was agreed that Millstein would handle the defense. Ares signed a written retainer agreement that provided that fees would be paid “for all time spent by Millstein & Associates reasonably related to the representation of [c]lient.”

When a portion of his fees went unpaid, Millstein brought this collection action against all appellants, for amounts totaling $108,058.44. A motion for summary judgment brought by Katherine and Papageorgiou, Inc. was denied. On March 27, 2017, the parties proceeded to a mandatory settlement conference before a commissioner with Ares acting in pro. per. and Katherine and Papageorgiou, Inc. represented by counsel. After hours of negotiations, all parties agreed to settle the case for $85,000. Under the terms of the written settlement agreement, this amount was to be paid by July 27, 2017.

When the settlement amount was not paid on July 27, 2017, appellants were sent a notice of default, which they failed to cure. On August 8, 2017, Ares filed an motion to set aside the settlement agreement under section 473, subdivision (b). On August 9, 2017, Millstein filed a motion to enforce the settlement agreement pursuant to section 664.6.

The motions were simultaneously heard on August 31, 2017. The court granted the motion to enforce the settlement and denied the motion to set it aside. The court observed in its orders on the motions, “While Mr. Papageorge regrets that he signed the settlement agreement, his regret does not support his contentions that the agreement is invalid for any of the reasons he claims.”

II. DISCUSSION

Appellants contend the trial court erred by granting the motion to enforce the settlement agreement and denying the motion to set it aside. They argue that Millstein and the attorney representing Katherine committed a number of illegal acts during the underlying litigation, and that the settlement agreement was the product of fraud. We disagree.

A. Section 664.6

Section 664.6 provides, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “[I]n determining whether the parties entered into a binding settlement of all or part of a case, a trial court should consider whether (1) the material terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties regarding their understanding of those terms, and (3) the parties expressly acknowledged their understanding of an agreement to be bound by those terms.” (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) We review a court’s ruling in this regard for substantial evidence. (Ibid.)

Substantial evidence supports the court’s ruling in this case. Appellants were personally present at the settlement negotiations and two of the three appellants were represented by counsel. The settlement negotiations were supervised by a commissioner, and according to a declaration by Millstein, the commissioner “met with the parties and their attorneys to discuss settlement positions. She conveyed the position of each party to each other. I estimate approximately 4 hours were spent by each side speaking with [the commissioner] in caucus. The negotiations proceeded in a slow but regular ma[nn]er with many offers and counteroffers being exchanged and many discussions with [the commissioner] being held between each.” The parties reached an agreement after these negotiations and reduced that agreement to writing, and that writing specifically provided, “This is a settlement pursuant to C.C.P. § 664.6. This records the oral settlement of the parties before the court.”

Although appellants claim that Millstein perpetrated a “ ‘fraud upon the court’ ” that warrants reversal of the order under section 664.6, it appears that the acts cited as fraud occurred during Millstein’s representation of Ares, were known to Ares or should have been known at the time of settlement, and were therefore disposed of by the parties’ settlement agreement. The settlement was not “void on its face” as appellant suggests, as there is no evidence the court lacked either personal or subject matter jurisdiction. (Cf. Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353.)

B. Section 473(b)

Under the discretionary provisions of section 473, subdivision (b), the trial court may, “upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.)

Appellant made no showing that the settlement was the product of mistake or excusable neglect. Although he asserts that Millstein and counsel for Katherine violated the Rules of Professional Conduct in their representation of Ares and Katherine during the underlying litigation, their conduct would have been accounted for in reaching the settlement and appellant has identified no mistake, inadvertence, surprise or excusable neglect that would compel setting the settlement aside. The trial court did not abuse its discretion in concluding that while Ares had buyer’s remorse concerning the settlement, he had not stated sufficient grounds to set the settlement aside.

Given our resolution of the issues, it is unnecessary to address whether Katherine and Papageorgiou, Inc. have standing to appeal.

III. DISPOSITION

The judgment is affirmed. Costs to respondent.

NEEDHAM, J.

We concur.

JONES, P.J.

BURNS, J.

Millstein v. Papageorge / A152986