Opinion
A147537
09-25-2017
MARIA T. DENARDO, Plaintiff and Appellant, v. TOM GIVENS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS042414)
Maria Denardo sued Tom Givens and Kenneth Beasley for damages in a dispute arising from a real estate transaction. Givens and Denardo, with the assistance of counsel, mediated their dispute and memorialized an agreement to settle the litigation in a mediation settlement agreement (MSA). Denardo subsequently moved to set aside the MSA and filed, without leave of court, a supplemental complaint. The motion was denied. Givens filed motions to strike the supplemental complaint and enforce the MSA. The court granted the motion to enforce the MSA and found the motion to strike then moot. The court dismissed the complaint. Denardo appeals. We affirm.
Denardo's husband, William Denardo, was named as a plaintiff in the action but was deceased at the time the complaint was filed. Beasley did not respond to the complaint, and his default was entered.
I. BACKGROUND
We note first that Denardo makes minimal reference to the trial court record in her recitation of the facts, and she incorporates extended recitals of "facts" without any apparent basis in the record. She also focuses in great detail on what she perceives to be the merits of her underlying action against Givens, matters of limited relevance to the single issue we must resolve—did the trial court err in enforcing the settlement agreement? " 'We are not required to search the record to ascertain whether it contains support for [an appellant's] contentions.' " (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.) We therefore rely primarily on record references provided by Givens and what can be gleaned from the limited portions of the record to which Denardo directs us.
We are further hampered in our review by Denardo's inconsistent pagination of her briefing. (See Cal. Rules of Court, rule 8.204(b)(7) [pages must be consecutively numbered].)
Denardo moved on two occasions (June 29 and Aug. 11, 2016) to augment the record to include reporter's transcripts for various hearing dates. We granted the motions. She was ordered to submit the requested record augments by September 16, 2016. She failed to do so, and the augmentation requests were therefore denied. A request to augment the clerk's transcript was denied for failure to show the proposed additional records were complete and before the trial court in the form submitted.
The underlying complaint was filed by Denardo in propria persona on September 27, 2013. Denardo alleged she and her husband entered into a "Lease With Option To Purchase Agreement" (the Lease/Option Agreement) with Givens and his wife, pursuant to which the Givenses purchased real property located at 201 Devonshire Street in Vallejo. The Givenses purchased the property on July 26, 2006. The Denardos then leased the residence from the Givenses, sharing certain expenses, with the option to purchase it on defined terms after three years, or to extend the purchase option for an additional two years. Under the terms of the Lease/Option Agreement, the Denardos loaned the Givenses $200,000 to use as a down payment on the property purchase. The Givenses secured an additional interest only loan of $328,950 to pay the balance of the purchase price. Denardo's complaint alleged breach of the Lease/Option Agreement and sought restitution of the $200,000 down payment and lease payments totaling $42,177.46. Givens filed a pro se answer to the complaint.
Givens is identified in the Lease/Option Agreement as a licensed California real estate agent employed by Equity Share Realty.
Givens's wife was not specifically named as a defendant. In November 2014, Denardo moved to amend the complaint to add her as a defendant. The motion was set to be heard by the trial court on March 6, 2015, the same day the matter was originally set for trial.
On January 9, 2015, Denardo and Givens mediated their dispute before mediator Salvatore Bellia. Both Denardo and Givens were present and represented by counsel. The parties arrived at a settlement, with the terms incorporated in the written MSA signed by both parties, and approved by counsel for both parties. The MSA required Givens to pay Denardo a total of $50,000, with $10,000 to be paid on January 23, 2015, and the balance payable in monthly installments over 18 months. The MSA purported to be a "full and final settlement of all outstanding issues related to the pending litigation" that was "fully enforceable as to its material terms." The MSA included a specific release "of all claims and causes [of] action arising from the events and contracts referred to in the complaint, whether asserted or not asserted, and including any claims of elder financial abuse," as well as a general release waiving the provisions of Civil Code section 1542. Denardo agreed to file a dismissal of the pending litigation with prejudice within 10 business days following receipt of payment of initial $10,000.
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." (Civ. Code, § 1542.)
The parties initially failed to inform the trial court of the settlement and an order to show cause was issued when they failed to appear for a February 9, 2015 mandatory settlement conference. In her pro se response to the order to show cause, Denardo explained she had not attended the mandatory settlement conference because her former attorney told her that "once there is a settlement, the lawsuit ends." Givens's counsel filed a declaration and notice of conditional settlement, stating that Denardo's former counsel confirmed receipt of the initial $10,000 payment but that Denardo had not filed a request for dismissal as provided in the MSA because she wished to retain the ability to obtain a stipulated judgment in the event of default on settlement payments. Givens's counsel agreed that dismissal with prejudice could be delayed until receipt of the final payment required by the MSA. At the February 23, 2015 hearing on the order to show cause, Denardo appeared pro se and Givens appeared by counsel. Both sides confirmed to the court that the matter had settled in mediation. The court vacated all trial dates and set a May 2015 status review.
In advance of the review hearing, Givens's counsel submitted a declaration averring that all payments required to that point by the MSA had been timely made, but Denardo had not cashed or returned any of the checks. Denardo filed a "Declaration in Support to Rejection of Defendant's Offer to Settle Case Based on an Unconscionable Lease Option to Buy Thereby Giving Rise to this Action" in which she restated her complaint's allegations and asserted the settlement was "premature" because she had not completed discovery. At the May 2015 hearing, the court advised Denardo that she should file any motion to set aside the settlement "by the end of June." Givens's attorney indicated he intended to file a motion to enforce the MSA.
On June 30, 2015, Denardo filed a "Notice of Motion and Motion to Set Aside the Conditional Settlement." Denardo argued that her attorney "did not render the support to obtain en [sic] equitable restitution of their retirement funds defendants put for a wrongful use." The motion was set for hearing on August 5, 2015. Givens opposed the motion. On August 4, 2015, the trial court issued a tentative ruling denying Denardo's motion to set aside the MSA. Neither party informed the trial court of an intent to appear and argue the motion, and the court therefore adopted the tentative ruling. That order is now final.
No copy of the tentative ruling is provided.
See California Rules of Court, rule 3.1308 and Superior Court of Solano County, Local Rules, rule 3.9.
In the meantime, Denardo had filed a verified supplemental complaint, without leave of court, alleging "Financial Abuse" under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) as a new cause of action against Givens and his wife. Givens filed motions to strike the supplemental complaint and enforce the MSA pursuant to Code of Civil Procedure section 664.6. Denardo apparently filed opposition only to the motion to strike. Both motions were set for hearing on October 23, 2015. On October 3, 2015, the trial court issued tentative rulings, granting the motion to enforce the MSA and finding the motion to strike thus moot. The trial court noted, however, that Denardo had not obtained leave of court to file the supplemental complaint as required, and "[t]herefore, if the motion [to strike was] not moot, it would have been granted." The court awarded Givens $6,000 in attorney fees for the enforcement motion, as provided in paragraph 9 of the MSA, and allowed Givens to deduct this sum from the monthly payments owed to Denardo under the MSA. Denardo appeared pro se at the motion hearing, but neither party had informed the court of their intent to appear and argue or contest the tentative ruling. The trial court adopted its tentative rulings. On November 10, 2015, the trial court issued an order of dismissal incorporating its rulings. On December 30, 2015, Givens filed a notice of entry of judgment. Denardo filed a notice of appeal on February 1, 2016.
II. DISCUSSION
While Denardo devotes the majority of her briefing to the merits of her underlying complaint, her principal contentions, as best we can discern, are that (1) the MSA is "illegal, unjust, or contrary to public policy"; (2) the MSA does not contain all material terms; (3) the settlement is not supported by adequate consideration; and (4) her former attorney provided inadequate assistance at mediation. It is particularly difficult to decipher Denardo's contentions in light of her failure to organize her arguments under consistent and coherent headings as required by court rules. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [" 'requiring the litigants to present their cause systematically and so arranged that [the appellate court] may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass' "].) Despite the requirement that appellate briefs state each point under a separate heading summarizing the point, followed by argument and citation to authority, many of Denardo's headings contain multiple points, and her arguments are often unrelated to the point or points made in the heading. Arguments not properly presented may be treated as forfeited. (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201; Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294 ["we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument"].) We nevertheless attempt to address Denardo's claims to the extent we can extricate them "from the mass," and find the claims fail on the merits. A. Standard of Review
Denardo also contends, without any meaningful discussion or reasoned explanation, that the mediation was required to be conducted under the Commercial Mediation Rules of the American Arbitration Association. We need not discuss this issue further. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Denardo does not articulate or acknowledge our standard of review.
We begin by reiterating settled rules of appellate review, often unfamiliar to pro se litigants. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of demonstrating error on the part of the trial court. (People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
The substantial evidence standard of review applies when an appellant challenges the factual basis of a judgment enforcing a stipulated settlement under Code of Civil Procedure section 664.6 (section 664.6). (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) Whether the statutory requirements of section 664.6 were met is a question of law which we review independently: "We make such a [substantial evidence] determination, however, only after deciding whether the parties meet the statutory conditions of section 664.6. Construction and application of a statute involve questions of law, which require independent review." (Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711.) B. Section 664.6
Section 664.6 provides that "[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally on the record 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." Section 664.6 provides "a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met." (Levy v. Superior Court (1995) 10 Cal.4th 578, 585.) "[I]n ruling on a section 664.6 motion for entry of judgment enforcing a settlement agreement, and in determining whether the parties entered into a binding settlement of all or part of a case, a trial court should consider whether (1) the material terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties regarding their understanding of those terms, and (3) the parties expressly acknowledged their understanding of, and agreement to be bound by those terms. In making the foregoing determination, the trial court may consider declarations of the parties and their counsel, any transcript of the stipulation orally presented and recorded by a certified reporter, and any additional oral testimony." (In re Marriage of Assemi, supra, 7 Cal.4th at p. 911.) C. The MSA is an enforceable contract.
The majority of Denardo's challenges to the MSA's validity are unsupported by coherent analysis or relevant legal authority. Where a party fails to provide reasoned argument and citations to authority, they have forfeited their challenge. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.) The contentions in any event lack merit. "A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts." (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)
Denardo's contention that the trial court enforced an "illegal" agreement seems entirely focused on her assertions that key provisions of the Lease/Option Agreement contravene Internal Revenue Service regulations or constituted elder abuse. She ignores the fact the court enforced the MSA, not the Lease/Option Agreement, and she identifies no provision of the MSA that is either illegal or contravenes any specified public policy.
Her assertion that essential material terms are absent from the MSA likewise lacks merit. Citing a Continuing Education of the Bar practice guide, she asserts (incorrectly) that the MSA is fatally defective for failure to include a provision "binding sucessors" and assigns, and for failure to delineate the tax consequences of the settlement. The essential elements of contract are (1) parties capable of contracting, (2) their consent, (3) a lawful object, and (4) sufficient cause or consideration. (Civ. Code, § 1550.) Denardo does not contest her capacity, nor does she deny that she signed the MSA. "In order for acceptance of a proposal to result in the formation of a contract, the proposal 'must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.' (1 Witkin, Summary of Cal. Law [(9th ed., 1987)] Contracts, § 145, p. 169.) A proposal ' "cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [¶] . . . The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." ' (Ibid., quoting from Rest.2d Contracts, § 33.)" (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.) Here the agreement called for a total payment $50,000 by Givens in exchange for a dismissal of the litigation with prejudice, and a general release of Givens and his wife. The terms of the MSA were reasonably certain, and were enforceable. Nothing further was required.
Denardo's complaint that the settlement amount was inequitable or inadequate appears to be the real crux of this matter, and is again premised on what she conceives to be the merits of her underlying action. She believes that pursuing further litigation would allow her the possibility of recovering extra-contractual damages for elder abuse or for breach of fiduciary duty. She seems to regard the theoretical possibilities as certainties. " 'The fairness of a settlement of a legal dispute is like the adequacy of the consideration supporting a contractual promise: a matter best left to negotiation between the parties. A settlement is a contract, and normally the test for the fairness of a contract is strictly procedural: were the parties competent adults duly apprised of the basic facts relating to their transaction?' " (Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 819-820.) The parties here, acting with the advice of counsel, and with the assistance of a neutral third party mediator, agreed to a sum certain payment of $50,000 payment in resolution of disputed claims subject to the inherent uncertainties of litigation. We cannot say that the consideration, agreed to in writing by Denardo, was inadequate or inequitable as a matter of law. D. Substantial evidence supports the trial court's enforcement decision.
"When ruling on a section 664.6 motion, the court in effect acts as a trier of fact. '[T]he trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. 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.' " (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565, italics omitted.) The court's ruling on all factual issues must be upheld where supported by substantial evidence. (Estate of Dipinto (1986) 188 Cal.App.3d 625, 629; Fiore, at p. 565.)
The trial court had before it the MSA; the declarations filed in support of, and in opposition to, Denardo's earlier unsuccessful motion to set aside the MSA; and the unopposed declaration of counsel submitted in support of the motion to enforce the settlement. The court had the authority to resolve any conflicts presented by the evidence. (In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1180.) Substantial evidence, including the MSA itself, the declaration of Givens's counsel, and Denardo's own statements to the court that the case had settled, supports the court's conclusion that Denardo and Givens reached a binding mutual agreement resolving all issues presented in their litigation. E. The motion to strike the supplemental complaint is moot.
Denardo seems to argue that the court erred in considering the MSA, saying that the court "overlooked the language of Evidence Code § 1123(d)." Evidence Code section 1123 provides: "A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: [¶] (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. [¶] (b) The agreement provides that it is enforceable or binding or words to that effect. [¶] (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. [¶] (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute." Nowhere in her brief does Denardo explain how or why this was error. We therefore do not consider the argument. Further, as Givens notes, Denardo raised no such objection in the trial court.
Having found the motion to enforce the MSA properly granted, we, like the trial court, find it unnecessary to address the merits of Givens's motion to strike the supplemental complaint. F. Attorney Fees
Denardo does not separately challenge the trial court's award of attorney fees incurred in enforcement of the MSA. Paragraph 9 of the MSA provides for the award of "reasonable attorney's fees and court costs" to the prevailing party for legal action "necessary to enforce the terms of this Mediation Agreement[.]" As Givens notes, a contractual authorization for recovery of attorney fees incurred in trial court proceedings includes attorney fees incurred on appeal. (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) " ' "Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees." ' " (SASCO v. Rosendin Electric, Inc. (2012) 207 Cal.App.4th 837, 849.) We will remand for this purpose.
III. DISPOSITION
The judgment is affirmed. Givens shall recover his costs, including attorney fees, on appeal. We remand to the trial court for a determination of the fees and costs to be awarded.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.