Opinion
2d Crim. No. B306263
03-24-2021
BURKLEY NEFF et al., Plaintiffs and Appellants, v. CAROL ANDERSON et al., Defendants and Respondents.
Law Offices of Michael D. Kwasigroch, Michael D. Kwasigroch for Plaintiffs and Appellants Burkley Neff and Renita Kay Griffin. Larry DeSha for Defendant and Respondent. Carlson Law Group, Inc., Mark C. Carlson for Defendants and Respondents Vere Enterprises, Inc. and Carol Anderson.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 56-2015-00471260-CU-WE-VTA)
(Ventura County)
Burkley Neff and Renita Kay Griffin appeal an amended judgment and challenge the trial court's denial of their motion to tax costs. We affirm.
This lawsuit concerns the ouster of Neff and Griffin from Neff's Fillmore home following foreclosure proceedings. Their possessions, including sentimental personal property, were removed from the home and damaged or destroyed when placed in a trailer and open boat parked outside the home. Prior to trial, Neff and Griffin received a statutory offer to compromise which they rejected. Following a jury trial, they received a verdict for economic and noneconomic damages against property caretaker Holly Boschee, real estate agent Carol Anderson, and real estate firm Vere Enterprises, Inc., doing business as RE/MAX of Valencia. Neff appeals and raises claims regarding the denial of his motion to tax costs based upon the asserted invalidity of the offer to compromise. We reject this contention and affirm.
To ease the reader's task, we sometimes refer to the parties Neff and Griffin as "Neff," and Anderson and RE/MAX of Valencia as "RE/MAX," except where clarity demands that we draw a distinction. Neff was the owner of the Fillmore property and Griffin is his fiancée.
RE/MAX has filed a motion contesting the timeliness of Neff's notice of appeal. We deny the motion. The notice of appeal was timely filed given that the Ventura Superior Court declared court closures due to the COVID-19 pandemic from March 19, 2020, through June 9, 2020.
FACTUAL AND PROCEDURAL HISTORY
We grant RE/MAX's motion for judicial notice of the clerk's minute order dated October 23, 2017, and the Notice of Entry of Amended Judgment served February 5, 2020.
On September 3, 2015, Neff filed a verified first amended complaint alleging causes of action for wrongful eviction and conversion, among others. Neff alleged that he was the owner of residential real property located at 353 4th Street in Fillmore. On June 2, 2015, Bank of America held a foreclosure sale of the property. Neff and Griffin were then in legal possession, but temporarily residing elsewhere, caregiving for an elderly family member. Prior to the date of the foreclosure sale, Neff permitted Boschee to move into the property as a caretaker.
The first amended complaint also alleged that following the foreclosure sale, Anderson contacted Neff and offered him "cash for keys." Neff refused. Anderson then contacted Boschee and made the same offer. Boschee accepted, and then carelessly removed Neff's and Griffin's possessions, placing them in a boat and trailer parked in the driveway and exposing them to the weather. Boschee and RE/MAX also changed the locks to the property. At that time, Bank of America had not served Neff with a notice to quit the premises or an unlawful detainer action. The complaint attached photographs of Neff's personal property in the open boat and trailer.
Prior to trial, RE/MAX made a statutory offer to compromise with Neff, pursuant to Code of Civil Procedure section 998. RE/MAX offered Neff $27,501 in exchange for a dismissal of the action and mutual release. RE/MAX proposed that the parties bear their own costs, attorney fees, and expenses. The written offer to compromise warned that if Neff failed to obtain a more favorable judgment at trial, he could not recover his post-offer costs and would pay RE/MAX's costs from the time of the statutory offer. Neff refused the statutory offer to compromise and, in mid-April 2017, the matter proceeded to trial.
Following trial, the jury completed special verdict forms and decided in favor of Neff on causes of action for wrongful eviction and conversion, among others. The jury apportioned fault concerning the wrongful eviction cause of action as 50 percent for RE/MAX, 40 percent for Boschee, and 10 percent for an entity not named as a party. The jury apportioned fault concerning the conversion cause of action at 100 percent for Boschee. It awarded $5,000 damages for economic loss of property, $6,525 for medical expenses, and $20,000 for noneconomic loss, including emotional distress.
On June 5, 2017, Neff filed a motion to tax costs regarding the memorandum of costs filed by RE/MAX. Neff argued in part that the offer to compromise was invalid and unenforceable because it was too broad in scope. The trial court permitted supplemental briefing concerning this issue and later ruled that the offer to compromise was valid and was not an "untethered release such as the one at issue in Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 89."
On January 10, 2020, the trial court entered an amended judgment. After adjusting for recovery of RE/MAX's $26,888.61 costs based upon Neff's refusal of the statutory offer to compromise, the court ordered Neff to pay $4,613.61 to RE/MAX. The court also ordered Boschee to pay Neff $10,000 (50 percent of $20,000) of the noneconomic damages.
RE/MAX had filed a cross-complaint seeking contribution or indemnity from Boschee. The amended judgment ordered Boschee to pay 50 percent of the $12,275 economic damages that RE/MAX received credit for as an offset against Neff's jury award. --------
Neff appeals and challenges the validity of the offer to compromise. The appellate record consists of the first amended complaint, the completed special verdict form, select minute orders, and the amended judgment. It does not contain a reporter's transcript of the trial proceedings, including any post-trial proceedings.
DISCUSSION
Neff contends that the offer to compromise is invalid and unenforceable because it broadly includes claims of all "known or unknown" liabilities, including claims regarding the sale of the real property. (Ignacio v. Caracciolo, supra, 2 Cal.App.5th 81, 89 [requiring resolution of potential unfiled claims not encompassed by the pending action renders an offer to compromise incapable of valuation].) He points to the settlement agreement attached to the offer to compromise and asserts that the offer was merely a settlement offer. Neff also argues that the offer to compromise included Boschee, whom he asserts was an agent of RE/MAX.
RE/MAX's offer to compromise stated in part: "[The RE/MAX defendants] hereby offer to compromise this action with Plaintiffs . . . for the sum of TWENTY SEVEN THOUSAND FIVE HUNDRED AND ONE ($27,501.00) dollars, pursuant to Section 998 of the California Code of Civil Procedure, in exchange for a dismissal with prejudice of the operative Complaint on file herein as against [RE/MAX] Defendants in the above-entitled action, and a mutual release, including a Civil Code, § 1542 waiver, attached hereto as Exhibit 'A.' All parties shall bear their own costs, attorneys' fees and expenses, and subject to the Court determining the settlement to be in good faith pursuant to Code of Civil Procedure § 877.6 . . . ." (Emphasis in original.) Attached to the offer was a nine-page (including two signature pages) settlement agreement and mutual release.
An offer to compromise pursuant to Code of Civil Procedure 998 must be sufficiently specific to allow the recipient to evaluate the worth of the offer and to make a reasonable decision thereon. (Berg v. Darden (2004) 120 Cal.App.4th 721, 727.) A section 998 offer requiring the release of claims and parties not involved in the litigation is invalid as a means of shifting litigation expenses. (Ignacio v. Caracciolo, supra, 2 Cal.App.5th 81, 86, 86; McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 706].) But a release of unknown claims arising only from the claim underlying the litigation itself does not invalidate the offer. (Ignacio, at p. 89.)
Here the offer to compromise and the attached settlement agreement limit their reach to the named RE/MAX parties and plaintiffs, "this action," "a dismissal with prejudice of the operative Complaint on file herein against [RE/MAX] Defendants in the above-entitled action," and "all other matters expressly or impliedly raised in the Subject Litigation." (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272 ["There is no reason to interpret the term 'all current claims' found in the same sentence as referring to anything other than the same lawsuit"].) Although the general release, identifying partners, agents, employees, successors or predecessors in interest, etc., is broad, that release is expressly limited to "the Subject litigation." In our independent review, the limitation to the underlying litigation is obvious. (Ignacio v. Caracciolo, supra, 2 Cal.App.5th 81, 88 ["Boilerplate language identifying individuals and entities beyond the named parties in the case as releasors and releasees does not invalidate the offer, if the claims released relate only to the subject matter of the current litigation"].)
On appeal, we presume that a judgment is correct and an appellant must provide an adequate record to establish prejudicial error. (Kalta v. Fleets 101, Inc. (2019) 41 Cal.App.5th 514, 517.) The appellate record here does not establish that Boschee was an agent of RE/MAX. The special verdict did not inquire whether Boschee was RE/MAX's agent and the jury made no findings regarding this issue. For this reason, we do not presume that RE/MAX intended that Boschee be included within the offer to compromise, particularly because the offer specifically states it is an offer by RE/MAX and Anderson (not Boschee) to plaintiffs.
Neff's remaining objections to the offer to compromise are without merit. He cites no authority for the rule that a good faith finding by the court renders an offer to compromise a mere settlement offer.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
PERREN, J.
TANGEMAN, J.
Vincent J. O'Neill, Jr., Judge
Superior Court County of Ventura
Law Offices of Michael D. Kwasigroch, Michael D. Kwasigroch for Plaintiffs and Appellants Burkley Neff and Renita Kay Griffin.
Larry DeSha for Defendant and Respondent.
Carlson Law Group, Inc., Mark C. Carlson for Defendants and Respondents Vere Enterprises, Inc. and Carol Anderson.