Kurzulian v. Shvartsman CA2/5 ( 2013 )

Filed 8/29/13 Kurzulian v. Shvartsman CA2/5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
GRAG KURZULIAN, B244321
Cross-complainant and Appellant, (Los Angeles County Super. Ct.
No. EC052747)
v.
ALEXANDER SHVARTSMAN,
Cross-defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Donna
Fields Goldstein, Judge. Dismissed.
Law Offices of Farris Ain and Farris E. Ain for Cross-complainant and Appellant.
Ashton R. Watkins, for Cross-defendant and Respondent.
_____________________________
Cross-complainant and appellant Grag Kurzulian appeals from the trial court’s
order granting his motion to enforce settlement agreement. Kurzulian contends the trial
court made an impermissible change to a material term of the settlement agreement by
requiring him to advance one-half of the cost of an accounting agreed to in the settlement.
Kurzulian maintains that the parties agreed cross-defendant and respondent Alexander
Shvartsman would pay for the accounting, and that they did not include any terms
requiring Kurzulian to advance part of the cost. Kurzulian requests the cause be
remanded to the trial court with instructions to enforce the settlement without any
reformation or modification to the terms agreed to by the parties.
The agreement at issue requires an accounting of Julal Construction, Inc., of which
the parties are former partners, and defers entry of judgment until a specified date before
which the accounting is to have been completed. Judgment has not been entered. On
June 17, 2013, this court issued an order to show cause why the appeal should not be
dismissed due to lack of jurisdiction. Kurzulian timely filed a letter brief asserting that
no issues remain for judicial consideration, and that the order is final and appealable in
substance although the trial court has not dismissed the case. He alternately requests the
appeal be “saved” because the order was preliminary to a rendition of final judgment, and
thus a defect in formality, or that the court exercise its discretion to issue a writ of
mandate. The appeal is dismissed.
The “existence of an appealable judgment is a jurisdictional prerequisite,” which
this court is obligated to review. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
“California is governed by the ‘one final judgment’ rule which provides ‘interlocutory or
interim orders are not appealable, but are only “reviewable on appeal” from the final
judgment.’ [Citation.] The rule was designed to prevent piecemeal dispositions and
costly multiple appeals which burden the court and impede the judicial process.
[Citations.] In keeping with this rule, [Code of Civil Procedure] section 904.1 generally
authorizes appeals from superior court judgments, except those which are interlocutory.
([Id.,] subd. (a)(1).)” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293.) It is
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the substance and effect of the adjudication, and not the form, which determines if the
order is interlocutory and nonappealable, or final and appealable. (Belio v. Panorama
Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101.) If no issues in the action remain for
further consideration, the decree is final and appealable. But if further judicial action is
required for a final determination of the rights of the parties, the decree is interlocutory.
(Ibid.)
The order to enforce settlement agreement does not end the litigation in form or in
substance. The agreement specifically requires that judgment not be entered until a
specific date after the accounting has been completed. The settlement agreement also
leaves much undone. The parties must agree to an accountant, come to a consensus as to
materials to be submitted to the accountant, and resolve any disputes over the content of
the materials submitted, among other things. It is not an appealable final order.
We further decline to exercise our discretion to “save” the appeal. The order is not
merely preliminary to a final judgment, nor was the final judgment “omitted” from the
order as in the cases Kurzulian cites—the parties expressly provided for entry of the
judgment to be delayed in the agreement. This is not a situation in which saving the
appeal would be appropriate. (See Hill v. City of Long Beach (1995) 33 Cal.App.4th
1684, 1695 [“While our discretion might be properly exercised when an appellant finds
himself without an appealable order because of simple inadvertence or mistake [citation],
extricating [appellant] from a problem of his own making is not a proper exercise of our
discretion.”].)
Nor do the circumstances warrant issuance of a writ of mandate. (Estate of Weber
(1991) 229 Cal.App.3d 22, 25 [“Routine granting of requests to treat improper appeals as
writs where there are no exigent reasons for doing so would only encourage parties to
burden appellate courts with reviews of intermediate orders.”]; San Joaquin County Dept.
of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 301.)
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DISPOSITION
The appeal is dismissed. Parties are to bear their own costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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