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Bhikhabhai Morarbhai Patel v. Zhanyun Yang

February 2, 2011

BHIKHABHAI MORARBHAI PATEL, PLAINTIFF AND APPELLANT,
v.
ZHANYUN YANG, DEFENDANT AND RESPONDENT.



Super. Ct. No. 07AS01718

Patel v. Yang CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Sacramento

Code of Civil Procedure section 663a provides that a party intending to make a motion to vacate a judgment (§ 663) must file and serve a notice of such intention either before the entry of judgment, or within 15 days of the mailing by the clerk of the notice of entry of judgment, or in any event within 180 days after the entry of judgment. The plaintiff, Patel, did not do any of these things and now seeks to escape the rule on equitable grounds. They are unavailing.

In March 2009 the trial court entered an order granting plaintiff Bhikhabhai Patel's motion to enforce a written settlement agreement with defendant Zhanyun Yang. (Code Civ. Proc., § 664.6)*fn1 More than six months later, in December 2009, Patel moved to vacate the judgment. The court denied the motion on the ground that it was untimely under section 663a.

Patel appeals from the order denying his motion. (8 Witkin, Cal. Procedure (5th ed. 2008), Attack on Judgment in Trial Court, § 143(2), p. 735.) He contends he came within an exception to the time limits of section 663a, under which a trial court in equity may modify a judgment in aid of its enforcement. He relies on the general proposition that a trial court rendering an equitable decree retains jurisdiction to enforce its provisions without mentioning its limitation to procedural matters. Accordingly, none of his supporting authority involves a motion to vacate an equitable decree in order to change its substantive provisions. We shall affirm the order.

BACKGROUND

In settlement of a disputed 2005 transaction involving the sale of a motel on Folsom Boulevard in unincorporated Sacramento County (the merits of which are irrelevant to this appeal), the parties executed a handwritten settlement agreement in June 2008 undoing the sale. It provided for forbearance of Patel's obligation to make interest payments on a promissory note held by Yang involving the sale of the Folsom Boulevard property. The agreement "contemplated" the drafting of a more formal version. When the parties were unable to agree on its terms, Patel filed a motion to enforce the agreement, which Yang opposed on the ground a handwritten agreement is not binding.

The trial court ruled in December 2008 in Patel's favor. It said that the handwritten agreement "contains all necessary[] material terms[,] and . . . is clear and unambiguous on its face. It is a global settlement that disposes of all issues . . . ." The court directed plaintiff Patel to prepare a formal order and judgment.

The parties submitted competing forms of judgment. Neither contains an express provision for interest accruing on the note. Yang objected to Patel's proposed judgment, asked the court to defer extinction of the note until the close of escrow on the property and asserted that the note bears "interest accruing thereon according to its terms until the[n]." (Italics added.) Patel's attorney did not respond to the assertion.

The trial court issued an order which said it had "considered the dueling judgments [and] determined that neither party's proposed judgment properly reflects the stipulation reached by the parties upon which judgment may be entered. [¶] Accordingly, the Court will not sign either of the proposed judgments. Instead, [it] will issue an order and judgment that properly incorporates the parties' stipulation as soon as its busy schedule permits."

In March 2009 the trial court entered an order that granted Patel's motion to enforce the handwritten settlement agreement. Although it said the note "shall be . . . canceled" at the time of the close of escrow, the order did not expressly provide for the accrual of interest on the note. The court "retain[ed] jurisdiction for purposes of enforcement of this order and judgment." The order did not direct the clerk to mail notice of entry of the order. Nonetheless, the clerk served a copy of the order on the parties in April 2009.

In September 2009, Yang filed a motion to enforce the judgment, citing difficulties with bringing the escrow to a close. Yang asserted that Patel had ceased making interest payments on the note in August 2008. Patel refused to close the escrow if Yang was credited with accrued interest. In a supporting declaration, counsel ...


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