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This case was last updated from Los Angeles County Superior Courts on 04/26/2018 at 16:01:26 (UTC).

DEAN J. ZAMANI VS. JOHN DINOVI, ET AL

Case Summary

On 11/14/2011 DEAN J ZAMANI filed a Contract - Other Contract lawsuit against JOHN DINOVI. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN P. PFAHLER. The case status is Disposed - Dismissed.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****1935

  • Filing Date:

    11/14/2011

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Chatsworth Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN P. PFAHLER

 

Party Details

Plaintiffs and Cross Defendants

ZAMANI DEAN J.

DEAN ZAMANI

DEAN J. ZAMANI

Defendants and Cross Plaintiffs

ANJDA CORPORATION

CHARISMA GROUND PROPERTIES LLC

DINOVI JOHN

J&S PETROLEUM INC.

KOHAN PETROLEUM INC.

SAND CANYON UNOCAL

VALENCIA PETROLEUM INC.

DI NOVI JOHN

ASSADI HAMID

Cross Defendants

ZAMANI ENTERPRISE

DEAN ZAMANI

Others

SHAHEN HAIRAPETIAN

SANDS & ASSOCIATES

8 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

DANIEL Z. SROURIAN

HAWXHURST GERALD

DIJULIO LAW GROUP

GLEN H. MERTENS

Defendant and Cross Plaintiff Attorney

KAPLAN KENEGOS & KADIN

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 03/07/2018
  • at 08:35 am in Department F49, Stephen P. Pfahler, Presiding; Motion to be Relieved as Counsel - Motion Granted

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  • 03/06/2018
  • Miscellaneous-Other (AMEDMENT TO DOCUMENTS IN SUPPORT OF OBJECTIONS AND DECL. OF DEAN J ZAMANI TO GLEN H MERTENS WITHDRAWALAS COUNSEL ); Filed by Attorney for Pltf/Petnr

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  • 03/05/2018
  • Objection Document Filed (and declaration of dean j zamani to glen h mertens withdrawals counsel ); Filed by Attorney for Pltf/Petnr

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  • 02/28/2018
  • Notice (OF NO OPPOSITION RECEIVED IN RESPONSE TO MTN TO WITHDRAW AS COUNSEL ); Filed by Attorney for Plaintiff

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  • 02/28/2018
  • Motion for an Order; Filed by Attorney for Defendant

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  • 02/09/2018
  • Declaration (OF GLEN H. MERTENS ); Filed by Atty for Plaintiff and Cross-Deft

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  • 02/09/2018
  • Motion to be Relieved as Counsel; Filed by Atty for Plaintiff and Cross-Deft

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  • 01/19/2016
  • Notice (OF ATTORNEY'S LIEN ); Filed by Attorney for Pltf/Petnr

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  • 01/11/2016
  • at 08:35 am in Department F49, Stephen P. Pfahler, Presiding; Motion to be Relieved as Counsel - Motion Granted

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  • 01/11/2016
  • Order (ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL ); Filed by Attorney for Plaintiff

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187 More Docket Entries
  • 01/19/2012
  • General Denial (KOHAN PETROLEUM, INC., J&S PETROLEUM, INC.; VALENCIA PETROLEUM, INC.; ANJDA CORPORATION; CHARISMA GROUND PROPERTIES, LLC SAND CANYON UNOCAL); Filed by Attorney for Defendant

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  • 01/19/2012
  • Summons Issued; Filed by Atty for Defendant and Cross-Compl

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  • 01/19/2012
  • Cross-complaint filed; Filed by Atty for Defendant and Cross-Compl

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  • 12/13/2011
  • Proof of Service (PARTY SERVED: SAND CANYON UNOCAL ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 12/13/2011
  • Proof of Service (PARTY SERVED: J&S PETROLEUM, INC. ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 12/13/2011
  • Proof of Service; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 12/13/2011
  • Proof of Service (PARTY SERVED: KOHAN PETROLEUM, INC ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 12/13/2011
  • Proof of Service (PARTY SERVED: VALENCIA PETROLEUM, INC. ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 11/14/2011
  • Summons Filed

    Read MoreRead Less
  • 11/14/2011
  • Complaint filed-Summons Issued

    Read MoreRead Less

Tentative Rulings

Case Number: PC051935    Hearing Date: November 19, 2020    Dept: F49

Dept. F-49

Calendar # 6

Date: 11-19-20

Case # PC051935

Trial Date: N/A

MOTION TO ENFORCE SETTLEMENT

MOVING PARTY: Defendant/Cross-Complainant, John Dinovi

RESPONDING PARTY: Plaintiff/Cross-Defendant, Dean Zamani

RELIEF REQUESTED

Motion to Enforce Settlement Agreement in Order to Resolve Dispute Over Accounting Report and Distribution of Sale Proceeds in Escrow Account

SUMMARY OF ACTION

On October 29, 2007, Plaintiff Dean Zamani entered into an agreement with Defendant John Dinovi for the purchase of a 25% ownership interest in a business entity identified as Kohan Petroleum dba Friendly Valley AM PM (Arco Gas Station) located in Santa Clarita. Plaintiff paid Defendant $180,000 for the share.

Plaintiff alleges a second agreement, whereby Plaintiff agreed to purchase a 50% ownership interest in Valencia Petroleum, an ARCO service station/car wash located in Valencia. Plaintiff paid $700,000 for this interest.

Plaintiff alleged Defendant failed to provide the 25% and 50% interests in the respective entities after acceptance of payments. On November 14, 2011, Plaintiff filed a complaint for Breach of Contract, Fraud, Uniform Fraudulent Transfer Act, and Violation of Business and Professions Code section 17200. On January 19, 2012, Dinovi filed a cross-complaint against Zamani and Zamani Enterprises for Declaratory Relief, Breach of Contract, Common Counts, and Defamation. Zamani Enterprises was dismissed from the cross-complaint on March 16, 2012.

The court granted Plaintiff leave to file a first amended complaint on January 23, 2014. The amended complaint added two causes of action for recission. On July 31, 2014, Plaintiff substituted in Defendant Adel, LLC for Doe 1.

On June 4 2015, the parties entered into a settlement agreement before the court. The court dismissed the case and retained jurisdiction to enforce any settlement agreement pursuant to Code of Civil Procedure section 664.6.

On April 14, 2020, Defendant/Cross-Complainant filed the subject motion.

RULING: Denied.

Evidentiary Objections: Overruled.

On September 11, 2020, the court heard the “Motion to Enforce Settlement Agreement in Order to Resolve Dispute Over Accounting Report and Distribution of Sale Proceeds in Escrow Account.” The court wrote the following:

Defendant/Cross-Complainant Dinovi moves for an order declaring Dinovi’s capital contributions to the business entities larger than reflected in the accounting report, as well as a finding that the contributions of Zimani were overstated. Dinovi therefore seeks a larger distribution of funds held in escrow following the sale of Valencia Petroleum, as well as additional payment from Zimani. Zimani in opposition disputes the conclusions and arguments presented in the motion.

The parties presented their settlement agreement to the court. [Decl. of Hairapetian, Exs. A-B.] It is undisputed that the settlement agreement required the appointment of a forensic accounting firm to determine the respective assets of the parties, including a determination of whether any money from Kohan Petroleum was utilized to purchase the Valencia Petroleum property, a determination of contributions and withdrawals from the Valencia Petroleum business, and the determination of any losses to be utilized by both parties in future tax filings. [Hairapetian Decl., Ex. A, 3:14-26, 4:24-28.] The court agreed to allow the presentation of disputes and rule on them. [Id., 6:17-21.]

The court granted the dismissal subject to Code of Civil Procedure section 664.6. In ruling on a motion to enforce a settlement, the court “may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.” (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) The court may not “create the material terms of a settlement,” and must instead decide on what terms the parties agreed upon. (Ibid.; Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1460; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565-566.)

According to the accounting report, no losses were determined, and no capital from Kohan Petroleum/Zamani contributed to the purchase of Valencia Petroleum. The accounting firm also concluded that any and all payments and withdrawals were proper. A total of $303,944 sits in the escrow account. Dinovi was therefore found entitled to $298,454 from the sale proceeds, with Zimani receiving $5,490 of the proceeds. [Hairapetian Decl., Ex. E.]

Dinovi contends the report fails to prove the purported $53,760 capital contribution of Zimani ($10,000 on 3-27-09 and $43,760 on 12-31-09), and therefore overstates the capital contributions of Zimani. The report also undercounts the contributions of Dinovi by $140,000. Dinovi submits the declaration of James Cashion, CPA in support of the arguments.

According to Cashion, the $140,000 contribution was made for legal expenses involving Valencia Petroleum in a separate action, and should therefore be equally split, with Zimani charged $70,000 from his balance and Dinovi accepting the other $70,000 charge. Said mistakes therefore reduce the total due to Zimani by $53,760, and $70,000, respectively for a total adjustment of $123,760. The result would entitle Dinovi to the entire balance of escrow proceeds, as well as an additional payment from Zimani to Dinovi in the amount of $89,558.44.[1]

Dinovi also references management fees and interest in “section B” of the caption. According to Dinovi, he is entitled to prejudgment interest on the entire “excess capital balance” of $432,964, but the motion itself lacks any specific address of this amount, and it’s not clear how Dinovi determined this specific fixed sum. [Declaration of Dinovi, ¶7.] The declaration of Cashion lacks specific reference to this $432,964 “excess capital balance” as well. Nothing in the motion or declarations address the “management fees.”

Zimani contends the $43,760 credit was proper, and that the conclusions of Cashion constitute speculation. Zimani denies any responsibility for a one-half share of the $140,000 in legal fees arising from the 2009 lawsuit.

Zimani also raises arguments about $133,000 in claimed management fees and prejudgment interest, but as addressed above, the motion lacks sufficient particularity regarding the prejudgment interest claim and no support for the management fees. The court therefore declines to consider the merits of the arguments. (Weddington Prods., Inc. v. Flick, supra, 60 Cal.App.4th 810.)

In addition to the management fee and prejudgment interest arguments addressed above, the court also lacks clarity on the actual legal basis of the subject challenge. The instant motion constitutes nothing more than a challenge to the credibility of the accounting report with a competing declaration from Cashion regarding the appropriate application of any credits/capital contributions of $53,760. The declaration of Cashion relies on alleged communications with Scott Ervin of the accounting firm and his apparent disagreement with the conclusions of Ervin. [Cashion Decl., ¶¶ 6-8.] According to Cashion, Ervin agreed to make adjustments regarding the $53,760, but no change apparently occurred. [Id., ¶7(a)(1-2).][2]

The report in fact acknowledges certain Dinovi claims, and finds the arguments lack support. [Hairapetian Decl., Ex. E.] The report itself contains a section of items “to be determined by the court,” which includes the subject claims raised by Dinovi. [Id.] It’s not clear why the accounting report both provides conclusions regarding the disposition of funds, yet provides a summary list of issues for later court determination clearly within the scope of the investigation by the retained forensic accounting firm, and an offer to revise the report upon court order. [Id.]

The forensic accounting firm was specifically agreed upon for the purpose of making said determinations of credits and liabilities between the parties, in order “equalize [the] investment of the parties after taking into account the proceeds of the Valencia Sale, minus losses,” [Hairapetian Decl., Ex. A, 6:4-6], yet the firm declined to make any definitive findings and instead decided to present the court with the dispute. The court declines to sit as an accounting expert in order to determine the sources of funds simply based on the conditional statements of the accounting firm retained to address the financial aspects of the settlement, and subsequently challenged by a second expert relying on hearsay statements. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; Fiore v. Alvord, surpa, 182 Cal.App.3d 561, 565 [“‘In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone’”]; Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454 [“When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his memory”]; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162 [The trial court's factual findings on a motion to enforce settlement pursuant to section 664.6 are subject to limited appellate review and will not be disturbed if supported by substantial evidence].)

The court also finds a lack of support as to how $140,000 in legal fees generated from a lawsuit filed four years after the settlement agreement is now retroactively the subject matter of the settlement agreement. The only language in the agreement states that any dispute over a breach of the agreement will entitle the prevailing party to all fees. The agreement specifically states that the provision “is prospective in nature,” and that “anything that’s been retroactive or anything that’s occurred in the past, each side has agreed to bear its own costs and its own attorney’s fees in that regard.” [Hairapetian Decl., Ex. A, 8:24-9:2.] Nothing in the motion or plain language of the settlement agreement transcript supports a finding of a “retroactive” dispute.

Given the dispute, the court continues the hearing for further briefing regarding resolution of any actual legal issues arising from the sale of the Valencia Petroleum station only. As presented, nothing in the motion presents a sufficiently articulated argument regarding the necessity of court interpretation of the settlement agreement. An investigative accounting report constitutes an item for expert review, which the court may credibly rely upon barring a showing of blatant legal error. A disagreement of opinion, and second-guessing credibility findings constitute insufficient legal argument.

If the accounting firm is unwilling to make actual conclusions regarding the tracing of payments, contributions, sources and assignment of funds, and instead presented the list of items to assuage the arguments of Cashion, the court may order the parties to retain a new accounting firm to start the process over again with the intention of drafting a decisive report.

The court therefore continues the hearing to November 19, 2020. The parties are limited to no more than 5 pages of authority each, but may submit additional declarations. The brief of Dinovi is due no later than October 27, 2020, and any responsive brief is due no later than November 5, 2020. The briefs shall be limited to the issues of the $53,760 in capital contributions and the $140,000 in legal fees. As addressed above, the court seeks supported argument as to the retroactive applicability of the $140,000 fee split sought by Dinovi, and a legal basis for a challenge to the findings of the forensic accounting firm regarding the capital contributions findings. Although Dinovi raised prejudgment interest and management fees as well, the lack of any substantial support presents no basis for further consideration.

The Court also acknowledges the brief submitted by Kaplan, Kenegos & Kadin regarding payment of fees. The court will not address the subject claims, due to both the continued briefing schedule, as well as the request falling outside the scope of the settlement agreement. Former counsel will need to rely on other means to collect its outstanding fee.

Dinovi in the supplemental brief and declaration represents the existence of an agreement for the settlement of the Zarko lawsuit for $140,000, for which Dinovi agreed to “advance” the $70,000 to Plaintiff, due to Plaintiff’s lack of funds at the time. Dinovi therefore claims a $70,000 interest, which he requests be deducted from the escrow account. Dinovi next denies either the $10,000 or $43,760 contribution were ever made by Plaintiff.

Zimani in opposition contends that the supplemental brief provides no address of the actual accounting report, and instead reiterates the claim on the $140,000 capital contribution. Zimani reiterates that the forensic accounting firm reviewed the claim and rejected it. Zimani also contends that the accounting report found Zamani made a $53,760 contribution ($10,000 + $43,760), and therefore included it as part of the settled statement. Zimani therefore requests the court reaffirm the prior tentative and deny the motion.

The settlement agreement specifically required the retention of an accounting firm in order to determine any and all disputes over the sale of the property and any other claims presented arising from the settlement agreement. The court specifically ordered moving party to provide support for the argument regarding the retroactive application of the alleged settlement agreement and an accounting report error. The supplemental brief constitutes nothing more than yet another declaration with case law to support the presented declaration. Lacking from the brief is the address of the specifically raised issues.

The court declines to reconsider the findings of the accounting firm based on the declaration of moving party. The court granted Dinovi an opportunity to clarify and support the arguments, and Dinovi instead continues to simply reargue a settlement under the guise of Code of Civil Procedure 664.6, in order to avoid a ban under the reconsideration statute pursuant to Code of Civil Procedure section 1008. The court therefore denies the motion on grounds that moving party, even after a two opportunities, continues to present insufficient authority and evidence requiring the redistribution of funds provided in the accounting report.

The court also notes that Kaplan, Kenegos & Kadin submitted a Notice of Amended Attorney Lien for $27,838 as to John Dinovi, et al.

Moving Defendant is ordered to give notice.


[1]The forensic accounting report indicates an escrow balance of $298,454 versus the Cashion declaration represents an escrow balance of $299,669.11. The total amount therefore allegedly due to Dinovi under the Cashion declaration ranges from $388,012.44 to $389,227.55.

[2]Kimani makes no hearsay objection to this statement.

Case Number: PC051935    Hearing Date: September 10, 2020    Dept: F49

Dept. F-49

Calendar # 5

Date: 9-11-20 c/f 5-6-20

Case # PC051935

Trial Date: N/A

MOTION TO ENFORCE SETTLEMENT

MOVING PARTY: Defendant/Cross-Complainant, John Dinovi

RESPONDING PARTY: Plaintiff/Cross-Defendant, Dean Zamani

RELIEF REQUESTED

Motion to Enforce Settlement Agreement in Order to Resolve Dispute Over Accounting Report and Distribution of Sale Proceeds in Escrow Account

SUMMARY OF ACTION

On October 29, 2007, Plaintiff Dean Zamani entered into an agreement with Defendant John Dinovi for the purchase of a 25% ownership interest in a business entity identified as Kohan Petroleum dba Friendly Valley AM PM (Arco Gas Station) located in Santa Clarita. Plaintiff paid Defendant $180,000 for the share.

Plaintiff alleges a second agreement, whereby Plaintiff agreed to purchase a 50% ownership interest in Valencia Petroleum, an ARCO service station/car wash located in Valencia. Plaintiff paid $700,000 for this interest.

Plaintiff alleged Defendant failed to provide the 25% and 50% interests in the respective entities after acceptance of payments. On November 14, 2011, Plaintiff filed a complaint for Breach of Contract, Fraud, Uniform Fraudulent Transfer Act, and Violation of Business and Professions Code section 17200. On January 19, 2012, Dinovi filed a cross-complaint against Zamani and Zamani Enterprises for Declaratory Relief, Breach of Contract, Common Counts, and Defamation. Zamani Enterprises was dismissed from the cross-complaint on March 16, 2012.

The court granted Plaintiff leave to file a first amended complaint on January 23, 2014. The amended complaint added two causes of action for recission. On July 31, 2014, Plaintiff substituted in Defendant Adel, LLC for Doe 1.

On June 4 2015, the parties entered into a settlement agreement before the court. The court dismissed the case and retained jurisdiction to enforce any settlement agreement pursuant to Code of Civil Procedure section 664.6.

On April 14, 2020, Defendant/Cross-Complainant filed the subject motion.

RULING: Continued for Further Briefing.

Defendant/Cross-Complainant Dinovi moves for an order declaring Dinovi’s capital contributions to the business entities larger than reflected in the accounting report, as well as a finding that the contributions of Zimani were overstated. Dinovi therefore seeks a larger distribution of funds held in escrow following the sale of Valencia Petroleum, as well as additional payment from Zimani. Zimani in opposition disputes the conclusions and arguments presented in the motion.

The parties presented their settlement agreement to the court. [Decl. of Hairapetian, Exs. A-B.] It is undisputed that the settlement agreement required the appointment of a forensic accounting firm to determine the respective assets of the parties, including a determination of whether any money from Kohan Petroleum was utilized to purchase the Valencia Petroleum property, a determination of contributions and withdrawals from the Valencia Petroleum business, and the determination of any losses to be utilized by both parties in future tax filings. [Hairapetian Decl., Ex. A, 3:14-26, 4:24-28.] The court agreed to allow the presentation of disputes and rule on them. [Id., 6:17-21.]

The court granted the dismissal subject to Code of Civil Procedure section 664.6. In ruling on a motion to enforce a settlement, the court “may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.” (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) The court may not “create the material terms of a settlement,” and must instead decide on what terms the parties agreed upon. (Ibid.; Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1460; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565-566.)

According to the accounting report, no losses were determined, and no capital from Kohan Petroleum/Zamani contributed to the purchase of Valencia Petroleum. The accounting firm also concluded that any and all payments and withdrawals were proper. A total of $303,944 sits in the escrow account. Dinovi was therefore found entitled to $298,454 from the sale proceeds, with Zimani receiving $5,490 of the proceeds. [Hairapetian Decl., Ex. E.]

Dinovi contends the report fails to prove the purported $53,760 capital contribution of Zimani ($10,000 on 3-27-09 and $43,760 on 12-31-09), and therefore overstates the capital contributions of Zimani. The report also undercounts the contributions of Dinovi by $140,000. Dinovi submits the declaration of James Cashion, CPA in support of the arguments.

According to Cashion, the $140,000 contribution was made for legal expenses involving Valencia Petroleum in a separate action, and should therefore be equally split, with Zimani charged $70,000 from his balance and Dinovi accepting the other $70,000 charge. Said mistakes therefore reduce the total due to Zimani by $53,760, and $70,000, respectively for a total adjustment of $123,760. The result would entitle Dinovi to the entire balance of escrow proceeds, as well as an additional payment from Zimani to Dinovi in the amount of $89,558.44.[1]

Dinovi also references management fees and interest in “section B” of the caption. According to Dinovi, he is entitled to prejudgment interest on the entire “excess capital balance” of $432,964, but the motion itself lacks any specific address of this amount, and it’s not clear how Dinovi determined this specific fixed sum. [Declaration of Dinovi, ¶7.] The declaration of Cashion lacks specific reference to this $432,964 “excess capital balance” as well. Nothing in the motion or declarations address the “management fees.”

Zimani contends the $43,760 credit was proper, and that the conclusions of Cashion constitute speculation. Zimani denies any responsibility for a one-half share of the $140,000 in legal fees arising from the 2009 lawsuit.

Zimani also raises arguments about $133,000 in claimed management fees and prejudgment interest, but as addressed above, the motion lacks sufficient particularity regarding the prejudgment interest claim and no support for the management fees. The court therefore declines to consider the merits of the arguments. (Weddington Prods., Inc. v. Flick, supra, 60 Cal.App.4th 810.)

In addition to the management fee and prejudgment interest arguments addressed above, the court also lacks clarity on the actual legal basis of the subject challenge. The instant motion constitutes nothing more than a challenge to the credibility of the accounting report with a competing declaration from Cashion regarding the appropriate application of any credits/capital contributions of $53,760. The declaration of Cashion relies on alleged communications with Scott Ervin of the accounting firm and his apparent disagreement with the conclusions of Ervin. [Cashion Decl., ¶¶ 6-8.] According to Cashion, Ervin agreed to make adjustments regarding the $53,760, but no change apparently occurred. [Id., ¶7(a)(1-2).][2]

The report in fact acknowledges certain Dinovi claims, and finds the arguments lack support. [Hairapetian Decl., Ex. E.] The report itself contains a section of items “to be determined by the court,” which includes the subject claims raised by Dinovi. [Id.] It’s not clear why the accounting report both provides conclusions regarding the disposition of funds, yet provides a summary list of issues for later court determination clearly within the scope of the investigation by the retained forensic accounting firm, and an offer to revise the report upon court order. [Id.]

The forensic accounting firm was specifically agreed upon for the purpose of making said determinations of credits and liabilities between the parties, in order “equalize [the] investment of the parties after taking into account the proceeds of the Valencia Sale, minus losses,” [Hairapetian Decl., Ex. A, 6:4-6], yet the firm declined to make any definitive findings and instead decided to present the court with the dispute. The court declines to sit as an accounting expert in order to determine the sources of funds simply based on the conditional statements of the accounting firm retained to address the financial aspects of the settlement, and subsequently challenged by a second expert relying on hearsay statements. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; Fiore v. Alvord, surpa, 182 Cal.App.3d 561, 565 [“‘In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone’”]; Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454 [“When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his memory”]; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162 [The trial court's factual findings on a motion to enforce settlement pursuant to section 664.6 are subject to limited appellate review and will not be disturbed if supported by substantial evidence].)

The court also finds a lack of support as to how $140,000 in legal fees generated from a lawsuit filed four years after the settlement agreement is now retroactively the subject matter of the settlement agreement. The only language in the agreement states that any dispute over a breach of the agreement will entitle the prevailing party to all fees. The agreement specifically states that the provision “is prospective in nature,” and that “anything that’s been retroactive or anything that’s occurred in the past, each side has agreed to bear its own costs and its own attorney’s fees in that regard.” [Hairapetian Decl., Ex. A, 8:24-9:2.] Nothing in the motion or plain language of the settlement agreement transcript supports a finding of a “retroactive” dispute.

Given the dispute, the court continues the hearing for further briefing regarding resolution of any actual legal issues arising from the sale of the Valencia Petroleum station only. As presented, nothing in the motion presents a sufficiently articulated argument regarding the necessity of court interpretation of the settlement agreement. An investigative accounting report constitutes an item for expert review, which the court may credibly rely upon barring a showing of blatant legal error. A disagreement of opinion, and second-guessing credibility findings constitute insufficient legal argument.

If the accounting firm is unwilling to make actual conclusions regarding the tracing of payments, contributions, sources and assignment of funds, and instead presented the list of items to assuage the arguments of Cashion, the court may order the parties to retain a new accounting firm to start the process over again with the intention of drafting a decisive report.

The court therefore continues the hearing to November 19, 2020. The parties are limited to no more than 5 pages of authority each, but may submit additional declarations. The brief of Dinovi is due no later than October 27, 2020, and any responsive brief is due no later than November 5, 2020. The briefs shall be limited to the issues of the $53,760 in capital contributions and the $140,000 in legal fees. As addressed above, the court seeks supported argument as to the retroactive applicability of the $140,000 fee split sought by Dinovi, and a legal basis for a challenge to the findings of the forensic accounting firm regarding the capital contributions findings. Although Dinovi raised prejudgment interest and management fees as well, the lack of any substantial support presents no basis for further consideration.

The Court also acknowledges the brief submitted by Kaplan, Kenegos & Kadin regarding payment of fees. The court will not address the subject claims, due to both the continued

briefing schedule, as well as the request falling outside the scope of the settlement agreement. Former counsel will need to rely on other means to collect its outstanding fee.

Moving Defendant is ordered to give notice.


[1]The forensic accounting report indicates an escrow balance of $298,454 versus the Cashion declaration represents an escrow balance of $299,669.11. The total amount therefore allegedly due to Dinovi under the Cashion declaration ranges from $388,012.44 to $389,227.55.

[2]Kimani makes no hearsay objection to this statement.

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