Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC085328, Terry B. Friedman, Judge.
Law Offices of William J. Beverly and William Beverly, for Plaintiff and Appellant.
Greenblatt & Associates, Fredric J. Greenblatt and Lisa L. Loveridge, for Defendants and Respondents.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
Respondents Gregg Corlyn and Pacific Panorama, LLC (jointly referred to as Corlyn) own property at 17000 West Sunset Boulevard in Pacific Palisades. A house sits on a portion of the property, surrounded in part by vacant land. Appellant Robert DeVogelaere contended that in 2003, he entered into an agreement to purchase the vacant portion of the property. In or about 2005, he filed suit for breach of contract, seeking, among other things, specific performance. Along with the lawsuit, he filed a lis pendens, describing the affected properly as certain portions of “lots 1 and 2 of tract no. 10238 in the City of Los Angeles.�
Corlyn was said to be the owner of the property. The complaint alleged respondent Schlomy Weingarten was a “managing member� of Pacific Panorama and held “an unrecorded beneficial interest� in the property. According to the complaint, DeVogelaere and Weingarten were to have formed a new limited liability company for the purpose of developing the property.
We do not recite the complete legal description, which went on for several pages.
The particulars of the complaint and the parties’ alleged 2003 agreement are not significant because, as all parties agree, at a May 7, 2007 settlement conference, Corlyn and DeVogelaere entered into a new agreement, settling the claim by agreeing to terms under which DeVogelaere would purchase the property. The May 7 stipulated settlement agreement is the sole subject of this appeal.
The May 7 stipulated settlement agreement assigned no role to Weingarten as either purchaser or seller. Under the agreement, the lawsuit against Weingarten was to be dismissed, as was a cross-complaint he filed against DeVogelaere. Although Weingarten was involved in the settlement negotiations and filed a separate motion to enforce the stipulated settlement agreement, the parties stipulated to his dismissal from the proceedings on appeal. Weingarten, Corlyn and Pacific Panorama are jointly referred to as respondents.
A. May 7, 2007 Stipulated Settlement Agreement
At the May 7 settlement conference, the following stipulation representing the four essential terms of the purchase agreement was read into the record by Weingarten’s attorney: (1) “[DeVogelaere] shall purchase from Gregg Corlyn and Pacific Panorama that unimproved parcel of real property described as tract 10238, a parcel of .7 or more or less . . . acres . . . described as an unimproved parcel of real property on Sunset Boulevard, for $3,550,000, without warrant, save and except warranty of title, with all encumbrances, easements and liens, save and except [two existing deeds of trust].�
(2) “[DeVogelaere] shall pay the purchase price of $3,550,000 within 45 days of May 8th 2007. If [DeVogelaere] cannot pay $3,550,000 within 45 days of May 8th, 2007, [DeVogelaere] may have an additional 15 days, upon payment of a non-refundable $150,000, which shall be applied to the purchase price if [DeVogelaere] completes the purchase.�
(3) “[DeVogelaere] shall grant an easement for ingress and egress over the property . . . similar to the right of ingress and egress presently enjoyed by the residents situated at 17000 West Sunset Boulevard, Pacific Palisades, assessor’s parcel no. 4415021001, which easement may be relocated at the request of [DeVogelaere], provided that the relocation does not materially negatively affect or impair access to the residence. [¶] If a dispute arises regarding the relocation of the easement, the parties shall submit their dispute to binding arbitration, with [DeVogelaere] having the burden of proof as to a showing that the relocation will not materially negatively affect or impair the use of said ingress and egress for the benefit of said residence.â€�
(4) “[DeVogelaere] shall grant an additional easement defined as an unrestricted easement for use defined as ten feet in all directions from the outside finished surfaces of the residence which shall remain in effect so long as the existing residence remains in place.�
The parties’ stipulated settlement agreement went on to state that respondents would not “object to or protest development of the real property described . . . above, provided the proposed development consists of ten or fewer condominium units�; that if DeVogelaere “does not pay the sum of $3,550,000 as and when required . . ., then and in that event [DeVogelaere] will be deemed to forfeit the right to purchase the premises�; that DeVogelaere “shall pay all escrow and title-related expenses such that [respondents] net $3,550,000�; that respondents “will execute escrow instructions within 48 hours of receipt�; and that the lawsuit filed by DeVogelaere and the cross-complaint filed by Weingarten would be “dismissed with prejudice forthwith� with each party to bear his or its own costs.
During the May 7 hearing, there was a discussion concerning the 10-foot easement (item number four, above), generally referred to by the parties as the setback easement. Counsel for DeVogelaere stated the setback easement was to be measured “from the exterior walls of the structure.â€� Counsel for Corlyn said it was “ten feet from the improved portion of the structureâ€� including the “house and carport.â€� Counsel for DeVogelaere questioned whether “the carport [is] a structure?â€� The court interjected: “Stop. The term is ‘ten foot [sic] from the building.’ If you want to negotiate another settlement, fine. Here is this settlement, ten foot [sic] from the wall or wherever the improvements end. A wall or overhang. [¶] Is that your understanding?â€� Counsel for DeVogelaere and Weingarten answered “yes.â€� Counsel for Corlyn did not respond. After a brief discussion of property taxes and DeVogelaere’s right of assignment, the court asked the parties themselves whether the court had clearly expressed their understanding of the settlement agreement and all answered in the affirmative.
B. DeVogelaere’s Motion to Enforce Settlement Agreement
On June 12, 2007, DeVogelaere moved for an order enforcing the settlement agreement. Declarations from DeVogelaere and his attorney stated that on May 14, 2007, DeVogelaere had prepared escrow instructions in accord with the May 7 stipulated settlement agreement, but that Corlyn refused to execute the escrow instructions. Instead, Corlyn claimed to have agreed to convey a smaller parcel than that described in the escrow instructions and demanded an additional ingress and egress easement and setback easement. In his moving papers, DeVogelaere asked the court to: “1. Interpret the easements. [¶] 2. Order the defendants to close the escrow. [¶] 3. Authorize the court clerk to sign the deed if necessary. [¶] 4. Extend the time for performance briefly so that [DeVogelaere] is not prejudiced or penalized.â€�
The moving papers explained that DeVogelaere’s attorney had been unable to obtain a copy of the transcript of the May 7 hearing until June 4 because the court reporter had been on jury duty.
With regard to the extension of time, DeVogelaere stated in his declaration: “I was fully prepared to close the escrow on June 21 as agreed and I did everything that I could do to get it done. Closing has been held up because of [Corlyn’s] insistence on giving me less land encumbered by greater easements and refusing to execute escrow instructions so that I could get the loan funded. I am still prepared to close the transaction but will require some reasonable additional time from the point that the court issues it[s] ruling and interprets or defines the easements. I can not close within just a few days after this is resolved. [¶] . . . It is less than ten days from the scheduled closing date and we do not have signed escrow instructions from the seller, and we do not have demands from the lenders . . ., and the seller has not agreed to accept the easements as drafted. [¶] . . . I am prepared to close the transaction and resolve the issues concerning the scope of the easements later if necessary. There is no urgency in the delineation of the easements. They are clearly to be granted in some form and I am willing to accept whatever the court rules as appropriate.â€�
Corlyn filed an opposition that indicated the existence of a dispute concerning the stipulated settlement agreement. He contended that he owned three lots and that he contemplated transferring only Lot 3, consisting of approximately .66 acres of vacant land, to DeVogelaere. The remaining undeveloped land, approximately .08 of an acre, was, according to Corlyn, needed to provide parking and a turnaround for cars and emergency vehicles. Corlyn further contended that the easement for ingress and egress should be 40 feet wide, although the existing driveway was only 20 feet wide. Finally, he contended that the 10-foot setback easement should be measured from not just the house and carport, but also an existing courtyard and retaining wall.
The escrow instructions prepared by DeVogelaere described the property to be conveyed as certain portions of lots 1 and 2 of tract no. 10238—the same description contained in the lis pendens.
DeVogelaere had prepared an “Easement Agreement� defining the setback easement as 10 feet “from the exterior walls of the existing personal residence� and the ingress and egress easement as having a width of 20 feet.
With respect to DeVogelaere’s request for extension, Corlyn stated in his declaration that timing was a critical part of the parties’ negotiations: “I originally insisted that the Escrow close within thirty (30) days. [DeVogelaere] wanted sixty (60) days to close the Escrow. [¶] . . . After much negotiation, it was agreed that the Escrow would be forty[-]five (45) days with [DeVogelaere] having the right to extend it for an additional fifteen (15) days upon the payment of $150,000.00[] to me.â€� Corlyn contended the court should enter an order consistent with his understanding of the stipulated settlement agreement or, in the alternative, rule that the settlement was unenforceable as there had been no mutual assent to its material terms.
In his reply to Corlyn’s opposition, DeVogelaere demonstrated that the legal description of property he submitted to escrow was identical to the legal description (1) of the parcel covered by lis pendens; (2) on the grant deed recorded when the parcel was transferred to Corlyn; (3) on the grant deed recorded when the parcel was conveyed to Pacific Panorama; and (4) on two deeds of trust recorded when Pacific Panorama encumbered the parcel. In addition, the parcel described by DeVogelaere in his proposed escrow instructions was within two square feet of measuring .7 acres. With respect to the easement issues, DeVogelaere submitted no new evidence, but relied on the language of the stipulated settlement agreement. DeVogelaere stated in the reply that the closing date should be extended 15 days beyond the closing date of July 6, 2007 anticipated by the stipulated settlement agreement—to July 21, 2007—“due to the delays incurred through no fault of Buyer.�
C. Order of June 26, 2007
On June 26, 2007, a hearing was held on the motion to enforce the settlement agreement. In its tentative order, the court concluded that the parties had not reached the requisite meeting of minds at the settlement conference. As to the property subject to the agreement, the court noted that there was “nothing in the settlement agreement specifically describing the property to be what is described in the Lis Pendens.� With respect to the easement for ingress and egress, the court stated: “The settlement agreement imprecisely describes the scope and extent of the easement as ‘similar’ to the ingress and egress that nearby residents presently enjoy. [DeVogelaere] argues that necessarily it [follows] that the easement must be limited to the size of the existing driveway. However, that is not what the settlement agreement says and the Court does not have any evidence upon which to rely to determine what is the similar ingress and egress nearby residents enjoy.� Finally, with respect to the setback easement, the court stated that it was “uncertain how to determine what is an improvement or which portions of the subject structure are improved.�
Neither party submitted a transcript of the June 26 hearing or sought to have it included in the appellate record.
In its final order of June 26, 2007, the court “adopt[ed] the tentative ruling as the final ruling of the court.� None of the parties was satisfied with this result. Accordingly, all parties agreed that the court would “conduct an evidentiary hearing on the terms of the settlement� on July 13, 2007.
D. Hearing and Order of July 13, 2007
Between the June 26 and the July 13 hearing, neither party sought to present any additional evidence to the court. Corlyn, joined by Weingarten, filed a brief arguing that the stipulated settlement agreement should be enforced by dismissing DeVogelaere’s lawsuit. Respondents contended that DeVogelaere had manufactured the dispute about the description of the property and the nature and extent of the easements because he could not pay the purchase price within the time parameters set forth in the stipulated settlement agreement and “ha[d] not shown any ability to pay the purchase price . . . .� Respondents further stated they would “accept the Court’s interpretation of the extent of the property to be sold and permit the Court to determine whether the land to be sold, includes the additional parcel� and “abide by a determination of this Court� with respect to the easements. Respondents noted that “in [DeVogelaere’s] Motion, he claimed he would also abide by a determination of this Court.�
At the hearing on July 13, the court stated its conclusions concerning the proper interpretation of the stipulated settlement agreement: (1) the property to be sold was the parcel described in the lis pendens and DeVogelaere’s escrow instructions; (2) the easement for ingress and egress was to be limited to the width of the existing driveway; and (3) the setback easement would be measured “from the outside of all physical structures, including the outermost wall or outermost structure.� Counsel for Corlyn initially objected and stated he was prepared to present evidence to support a different interpretation. The court pointed out that its interpretation confirmed the existence of a settlement and gave Corlyn “if [he is] correct [that DeVogelaere had not fulfilled the terms of the settlement], the ability to seek the remedies that the settlement provides for . . . if [DeVogelaere] hasn’t fulfilled [his] obligations.� Counsel for Corlyn inquired: “So your ruling today [is,] if [DeVogelaere] doesn’t close today, he forfeits his right to the lawsuit and to acquire the property and [] the matter is dismissed?� The court responded: “If that is an uncontested term of the settlement, then, of course.� Counsel for Corlyn raised no further objection.
Counsel for DeVogelaere concurred that the court had the authority to interpret the “plain terms� of the stipulated settlement agreement and raised no objection to the court’s interpretation. He asked the court for an additional 15 days from the hearing date, until July 28, to pay the funds into escrow. Respondents’ attorneys contested the request. Counsel for Corlyn represented that there was another potential buyer interested in the property, and counsel for Weingarten noted that the sale had not been made contingent on financing. The court inquired of counsel for DeVogelaere what difference a few days would make. Counsel stated DeVogelaere had made arrangements for financing, “[$]1.5 is cash, [$]2.1 is going to be a loan,� but added: “I don’t know what we can reasonably expect to accomplish in seven days.� The court concluded that DeVogelaere would have an extension of seven days, until July 20, to pay the purchase price, provided he paid Corlyn the $150,000 non-refundable deposit.
The July 13 order stated: “1. The property is to be sold as it is described in the Lis Pendens. [¶] 2. The easement for ingress and egress is limited to the paved portions of the driveway. [¶] 3. The setback is to be measured from the outside of all physical structures, including the outermost wall or outermost structure. [¶] 4. [DeVogelaere] is to pay the $150,000[] that the settlement agreement provides on a non-refundable basis by July 20, 2007.â€�
E. Order of July 20, 2007
On July 20, 2007, the court entered an order dismissing the action. The order stated: “1. As the $3,550,000.00 has not been paid by [DeVogelaere], I find that [DeVogelaere] has not performed pursuant to the Settlement Agreement and this [c]ourt’s ruling of July 13, 2007. [¶] 2. [DeVogelaere] had adequate time to complete its purchase of the property and has failed to complete said purchase. Therefore, as the provisions of the Settlement Agreement and this [c]ourt’s ruling of July 13, 2007, provide that [sic] all rights to acquire the property, which was the subject matter of the lawsuit are hereby terminated. [¶] 3. As the provisions of the Settlement Agreement provide that [sic], in the event [DeVogelaere] does not complete his purchase of the subject property, he has released all of his claims as a plaintiff in the subject action. [¶] 4. The subject action is dismissed with prejudice. [¶] 5. The Lis Pendens recorded by [DeVogelaere] is hereby released.â€�
The transcript of the hearing on July 20 was not provided for our review, although DeVogelaere sought and was given permission to augment the record by filing a copy of it.
DISCUSSION
A. Section 664.6 and Standard of Review
Code of Civil Procedure section 664.6 (section 664.6) provides that if the parties to a pending litigation stipulate orally before the court for settlement of the case, “the court, upon motion, may enter judgment pursuant to the terms of the settlement.â€� In addition, if requested by the parties, “the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.â€� (§ 664.6.)
“Prior to the enactment of section 664.6, a party seeking to enforce a settlement agreement had to file a new action alleging breach of contract and seeking either contract damages or specific performance of the settlement terms, or alternatively had to supplement the pleadings in a pending case.� (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) The party could file a summary judgment motion based on the settlement agreement, but use of that procedure had a significant drawback —summary judgment can be granted only if the opposing party fails to raise a triable factual dispute. (Ibid.) Section 664.6 provides an effective summary procedure for specifically enforcing a settlement contract because it empowers the court to hear evidence and resolve factual disputes. (Weddington Productions, Inc. v. Flick, at pp. 809-810; see In re Marriage of Assemi (1994) 7 Cal.4th 896, 905; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) In making the determination permitted under section 664.6, “‘the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement. [Citation.]’� (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360, quoting Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454.) In that capacity, the court “‘may consider oral testimony or may determine the motion upon declarations alone. [Citation.]’� (Osumi v. Sutton, at p. 1360.) In addition, “‘[w]hen the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] own memory. [Citation.]’� (Ibid.) After hearing the evidence, the court “determine[s] disputed facts, and enter[s] the terms of a settlement agreement as a judgment.� (Weddington Production, Inc. v. Flick, supra, 60 Cal.App.4th at p. 810.)
“The trial court’s factual findings on a motion to enforce a settlement pursuant to section 664.6 ‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’� (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360, quoting Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.) “Consistent with the venerable substantial evidence standard of review, and with our policy favoring settlements, we resolve all evidentiary conflicts and draw all reasonable inferences to support the trial court’s finding that these parties entered into an enforceable settlement agreement and its order enforcing that agreement.� (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360.)
B. DeVogelaere’s Interpretation of the Stipulated Settlement Agreement Was Not Adopted in Its Entirety by the Trial Court
The parties stipulated to a settlement of the lawsuit on the record on May 7, but subsequently disputed its terms. In particular, the parties disputed whether the agreement covered all the vacant land in tract 10238 or only a portion of it; whether the ingress and egress easement should be limited to the width of the existing driveway; and whether the setback easement should be measured from the existing residence or from other improvements and structures. DeVogelaere asserts the court found in his favor on all disputed points and was, therefore, bound to grant him additional time to perform “in order to compensate [him] for the delay occasioned by the obstruction caused by [Corlyn].� That is incorrect. The court agreed with DeVogelaere concerning the first two disputed issues —the scope of the land covered by the agreement and the ingress and egress easement —but found in favor of Corlyn on the issue of the setback easement, ruling that the 10-foot setback easement would be measured “from the outside of all physical structures, including the outermost wall or outermost structure.� Accordingly, DeVogelaere’s principal contention that he was entitled to additional time as the innocent party is not supported by the record. Moreover, as DeVogelaere concedes, the court made no finding that Corlyn had prevented performance of the agreement, and the record before us fails to support DeVogelaere’s contention that his performance was necessarily excused by Corlyn’s conduct in disputing the terms of the agreement.
As we have seen, DeVogelaere had prepared a document showing a setback easement of 10 feet “from the exterior walls of the existing personal residence.�
C. DeVogelaere Presented No Evidence that the Extension Granted by the Trial Court Was Unreasonable or Commercially Impractical
DeVogelaere contends that the extension granted by the court was “unreasonably short� and “commercially impractical� and that the court abused its discretion by enforcing the stipulated settlement agreement contract without substantially extending the time for performance. After resolving the disputed terms of the agreement, the court extended the deadline stipulated to by the parties by seven days. As neither party questions the trial court’s power to create a new deadline not contemplated at the time of settlement, we address the issue raised by DeVogelaere: whether the extension granted by the trial court was unreasonably short or commercially impractical. “California courts generally do strictly enforce time deadlines in real estate sales contracts.� (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1341, italics omitted.) Moreover, the burden of proving impossibility of performance is on the party seeking to escape the obligation. (Oosten v. Hay Haulers Etc. Union (1955) 45 Cal.2d 784, 788.)
Here, the dispute concerning the terms of the parties’ stipulated settlement agreement and the proper enforcement encompassed three court hearings over the course of a month. Both sides had ample opportunity to place any evidence they deemed relevant before the court. DeVogelaere was aware, due to the allegations of the brief filed by respondents prior to the July 13 hearing, that Corlyn doubted DeVogelaere’s ability to raise the considerable sum needed to complete the purchase within any reasonable timeframe. Yet DeVogelaere presented no evidence concerning the efforts he had undertaken to obtain funds to complete the sale or when or whether he expected them to come to fruition.
DeVogelaere contends on appeal that the extension granted should have been 67 days. However, he arrives at this figure based not on evidence of a reasonable or commercially appropriate timeframe, but on his mistaken belief that the failure to close the sale between the May 7 settlement conference and the court’s July 13 ruling was entirely the fault of Corlyn. As noted, the court made no such finding, express or implied. Moreover, the 67-day figure was never presented to the trial court. In his original papers seeking to enforce the stipulated settlement agreement, DeVogelaere requested only 15 days beyond the initial closing date of July 6 — to July 21 —and the same amount of time at the July 13 hearing. The court granted 7 days, not a significantly lesser period, noting that DeVogelaere had had since May 7 to arrange funding. The court found that within this time DeVogelaere “had adequate time to complete [the] purchase of the property.� DeVogelaere presented no evidence to suggest the time provided was inadequate and we cannot say the finding was unreasonable as a matter of law.
DISPOSITION
The judgment is affirmed. Corlyn is to recover his costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.