1

Filed 2/17 /16 Thomas Dee Engineering Co. v. Khtikian CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THOMAS DEE ENGINEERING COMPANY, INC.,

Plaintiff , Cross

- Defendant, and Appellant,

v.

WARREN KENT KHTI KIAN

Defendant , Cross

- Plaintiff, and Respondent. A146590

(Marin County Super. Ct. No. CV

- 1404231)

ORDER MODIFYING OPINION
AND DENYING REHEARING
NO CHANGE IN JUDGMENT

THE COURT:

It is order that the op inion filed herein on January 29 , 2016, be modified as

follows:

On page 4, in the first full paragraph, remove “case management” from the last

sentence (before parenthesis) to read :
As respondent points out, “the minute order here is a standard interlocutory .

. .
order essen tially directing the parties to meet and confer” before returning to the trial

court for issuance of a final judgment.

There is no change in the judgment.

The petition for rehearing is denied.

Dated: _________________

________________________________ Kline, P.J.1

Filed 1/29/16 Thomas Dee Engineering Co. v. Khtikian CA1/2 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publish ed, 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THOMAS DEE ENGI NEERING COMPANY, INC.,

Plaintiff , Cross

- Defendant, and Appellant,

v.

WARREN KENT KHTI KIAN

Defendant , Cross

- Plaintiff, and Respondent. A146590

(Marin County Super. Ct. No. CV

- 1404231)

Respondent Warren Kent Khtikian has filed a mo tion to dismiss the appeal of

appellant Thoma s Dee Engineering Company, Inc. in this case arising out of a dispute

over attorney fees appellant allegedly owed respondent for his legal representation

. Respondent contends appellant has appealed from a non

- a ppealable minute order. We

agree, and shall grant the motion to dismiss.

BACKGROUND

On November 7 , 2014

, appellant filed a complaint against respondent, alleging

various causes of action related to respondent’ s right to attorney fees during and after

r espondent’s representation of appellant. On December 2, 2014, respondent filed a cross

complaint against appellant, alleging that appellant had breached the fee agreement and

was also liable on several other causes of action.

Following a mediation with retired Alameda C ounty Superior Court Judge Bonnie

Sabraw

, on February 16, 2015, the parties signed a s tipulation for settlement, in which2

appellant agreed to pay respondent $1.5 million . The stipulation for settlement further

required the parties to the reafter execute both a mutual release document and a stipulation

requesting the trial court to retain jurisdiction to enforce the agreement. W hen appellant

subsequently refused to comply with the terms of the settlement, informing respondent’ s

counsel “th at the express conditions of th e settlement had not been met,” respondent filed

a motion for entry of judgment , pursuant to Code of Civil Procedure section 664.6

. 1

On October 6, 2014, a t the conclusion of a hearing on respondent’s motion

, the

trial cour t granted the motion, finding that “no terms remain in dispute. The parties

agreed to execute ‘full and complete releases’ and even agreed on the language of the

releases through counsel. The parties also agreed to submit a stipulation a nd order to the

c ourt requesting the court retain jurisdiction. Accordingly, neither the conditional nature

of the settlement nor the unfulfilled terms provide a barrier to entry of judgment. The

settlement agreement only remains conditional because [appellant] refuses t o do the

ministerial acts required by the express settlement langu ag e.” In its minute order, t he

court ordered the parties to “execute the release contemplated by the settlement

agreement” and “ to execute a request for the court to retain jurisdiction for pur p oses of

enf orcing the settlement agreement

. [¶] . . . . [Appellant] may offer alternative language

to that proposed by [respondent]. However, if the parties cannot agree on language by

October 13, 2015, they shall mediate with Judge Sabraw as provi ded in the settlement

agreement. If the parties still cannot reach agreement, they may submit competing

language to the court no later than November 3, 2015, and the court shall decide the

language that shall govern and order execution of the docu ments ba sed on that language.”

1 All further statutory references are to the Code of Civil Proc edure

. Section 664.6 provides: “I f parties to pending litigation stipu late, 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 par ties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the
terms of the settlement. ”3

On October 16, 2015, appellant filed a notice of appeal “from the Minute Order

dated October 6, 2015.” 2 On November 17, 2015, after a hearing, the trial court found

that all proceedings, including the contemplated entry of judgmen t, were stayed by this

appeal.

DISCUSSION

Respondent contends the present appeal must be dismissed because appellant has

appealed from a non

- appealable interlocutory order. Appellant counters that the order

was appealable either as a collateral order o r an injunction.

Normally, only final judgments are appealable. (§ 904.1, subd. (a)(1). ) Certain

i nterlocutory orders are also appealable . These include the grant of an injunction

( § 904.1, subd. (a)(6)) and certain collateral orders. ( Smith v. Smit h (2012) 208

Cal.App.4th 1074, 1084 ( Smith ) [“ ‘[o]ne exception to the “one final judgment” rule

codified in

. . . section 904.1 is the so

- called collateral order doctrine’ ”].)

We agree with respondent that the minute order in this case is an interlocu tory

order that is not presently appealable , and that appellant’s legal arguments and citations

to authority are inapplicable to the present circumstances . First, the order is not

appealable as a collateral order. “ ‘ In determining w hether an order is co llateral, “ t he test

is whether an order is ‘ important and essential to the correct d etermination of the main

issue.’ If the order is ‘a necessary step to that end,’ it is not collateral. [Citations.]”

[Citations.]’ ” ( Smith

, supra , 208 Cal.App.4th at p . 1084.) Here, the minute order is not
effectively a final judgment on a collateral issue. Rather, it is a necessary step toward

resolution of the main issue. That is, because the minute order merely required the

parties to take the next step agreed to in their stipulation and settlement as part of the

process leading to entry of judgment , it is clearly not collateral

. (See Ibid. )

2 The issue on appeal, according to appellant, involves “deciding the scope, if any,
of a trial court’s section 664.6 injunctive powers to force parties to complete the process of forming an enfo rceable settlement agreement.”4

Second, the order in question is not an order granting an injunction. The trial

court’s minute order simply r equires the parties either to agree to or engage in mediation

to determine the precise language of the mutual release and retained jurisdiction

provisions to which they have already agreed , or , if they cannot reach an agreement, to

have the trial court decide the lan guage

. As respondent points out, “the minute order here

is a standard interlocutory case management order essentially directing the parties to meet

and confer ” before returning to the trial court for issuance of a final judgment. ( Cf.

Smith

, supra , 208 C al.App.4th at p. 1091 [ “ ‘ where a formal order is required, a minute

order is not appealable ’ ” ].)

Finally, we observe that to countenance appellant’s legal theories , which have no

support in the case law, would invite marginal or frivolous appeals simp ly for the purpose

of delaying a final judgment and payment of damages or post judgment interest. Here, for

example, a ppellant will have the opportunity to appeal from the final judgment.

However

, if it wishes to obtain a stay of enforcement of the judgme nt pending resolution

of that appeal, it will be required to satisfy certain statutory requirements before it can do

so. (See § 917.1, subd. (a)(1) [requiring payment of appellate bond]; cf. § 685.010

[re quiring payment of accrued post judgment interest if judgment is affirmed on appeal ].)

For all of these reasons, we shall grant respondent’s motion to dismiss appellant’s

premature appeal.

DISPOSITION

The appeal is dismissed. Costs on appeal are awarded to respondent.5 _____________________ ____ Kline, P.J.

We concur:

_________________________ Richman, J.

_________________________ Miller, J.