Opinion
G043468 Super. Ct. No. 05CC07650
11-15-2011
FIRESTONE FINANCIAL CORPORATION et al., Plaintiffs and Appellants, v. JONATHAN LORMAN et al., Defendants and Respondents.
Sheppard, Mullin, Richter & Hampton, Charles L. Kreindler, Mellissa K. Eaves and Karin Dougan Vogel for Plaintiffs and Appellants. The Yocca Law Firm, Mark W. Yocca; Jay Madrid and Kristen L. Sherwin; Pistone & Wolder and Thomas A. Pistone for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Steven S. Sundvold, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 Cal. Const.) Affirmed.
Sheppard, Mullin, Richter & Hampton, Charles L. Kreindler, Mellissa K. Eaves and Karin Dougan Vogel for Plaintiffs and Appellants.
The Yocca Law Firm, Mark W. Yocca; Jay Madrid and Kristen L. Sherwin; Pistone & Wolder and Thomas A. Pistone for Defendants and Respondents.
* * *
After years of litigation, the parties finally reached a settlement at a mandatory settlement conference. The trial court noted that this was a "fully executed, binding, final settlement pursuant to 664.6 of the Code of Civil Procedure," and the parties each agreed. Problems arose while trying to fully document the agreement, and the trial court eventually granted defendants' motion to enforce the settlement. Because there was substantial evidence to support the trial court's order, and because plaintiffs accepted the benefits of the settlement, we affirm the judgment.
I
FACTS
Background Facts
Plaintiffs are Firestone Financial Corporation (Firestone), a number of trusts established in 1986 (the 1986 Trusts), which hold all of Firestone's stock, and the trustees and the beneficiaries of the 1986 Trusts. Defendants are Jonathan Lorman, L. Randall Denton, MidTexas International Center, Inc. (MidTexas), Rodney E. Hayden, Welbourne Holdings, Ltd., Texas Properties Trust (Texas Properties) and Rodney E. Hayden, trustee, Texas Central Business Lines Corporation, TCBL Corporation, Sagamore Corporation Profit Sharing Plan and Rodney E. Hayden, trustee, and Starport Services, Inc.
Firestone was in the business of making commercial loans. Lorman was Firestone's general counsel and a personal friend and advisor to Fritz Hutcheson, Firestone's president. Hutcheson and his wife Betty formed the 1986 Trusts, which held all of Firestone's stock, for the benefit of their seven grandchildren. Lorman was a trustee of the 1986 Trusts.
Plaintiffs' complaint alleged that between 2000 and 2005, Lorman transferred over $21 million — substantially all of Firestone's assets — from Firestone to entities in which he had a direct or indirect financial interest, exploiting his position with Hutcheson, who was in declining health. Lorman referred to these transactions as "risk free" loans.
According to the complaint, the recipient of the "loans" was MidTexas, an auto processing business in Midlothian, Texas, that operated a facility called The AutoPark. The AutoPark was located at the junction of two major rail lines. MidTexas occupied The AutoPark under a long-term lease with the property's owner, Texas Properties, which, according to plaintiffs, was controlled and beneficially owned by Lorman. Further, plaintiffs claimed that Lorman had negotiated an amended lease before Firestone's loans to MidTexas began, providing for free rent in exchange for improvements to The AutoPark to be funded by Firestone's money. Under the amended lease, ownership of all the improvements would revert to Texas Properties in 2010, leaving MidTexas with a leasehold interest while Texas Properties owned the land with valuable improvements. MidTexas, however, possessed a conditional right to three five-year extensions, and therefore the lease could extend through 2025. The lease was further amended in September 2008 (the September 2008 amendment) to add 25 years to its term.
In June 2005, plaintiffs filed the instant lawsuit, eventually alleging 18 causes of action, including breach of fiduciary duty, breach of trust, fraud and negligent misrepresentation, constructive fraud, conversion, unfair competition, conspiracy, common counts, breach of contract, unjust enrichment, aiding and abetting, several claims relating to fraudulent transfers, constructive trust, equitable lien, and accounting. In essence, the lawsuit alleged the loans to MidTexas were commercially unreasonable, and Lorman had exercised control over trust assets for his benefit and the benefit of other defendants.
During the course of the litigation, the parties engaged in extensive discovery. Significant discovery surrounded defendants' property ownership, including the various leases between Texas Properties and MidTexas, and other agreements involving The Auto Park. Plaintiffs were also aware that a second tenant, Mazda, leased part of the property. In April 2009, plaintiffs took the deposition of Denton, a defendant and the president of MidTexas. Denton stated there had been a recent amendment to the lease, referring to the September 2008 amendment, which reduced the lease's acreage. When asked whether other terms, "Dates, amounts, things like that" remained the same, Denton, who did not have the document in front of him, answered yes.
Settlement Proceedings
In February 2009, the parties conducted a mediation before Alex Polsky of JAMS. In May, the parties appeared at a court-ordered mandatory settlement conference (MSC) that continued over a period of several days. On June 5, the parties reached a settlement. The court asked counsel for defendants to read from the term sheet to place the terms into the record, and then the court asked plaintiffs' counsel if anything had been misstated or omitted.
As read into the record, the basic terms were: (1) Defendants would make a lump sum payment to plaintiffs of $500,000, to be paid within 10 days of the receipt of fully executed settlements and dismissals. (2) Defendants would execute a promissory note in favor of plaintiffs in the amount of $ 13.5 million, with the note bearing interest at 6 percent, with monthly payments in the amount of $150,000 per month until the note was fully paid. The note would mature in 10 years, but if the note remained unpaid after five years, a $1 million balloon payment would be added on the maturity date of the note. (3) The note would be secured by a trust deed on certain parcels of property with "standard deed of trust provisions, except that only monetary defaults will trigger a foreclosure. In other words, a failure to pay will trigger the right to foreclose." Any nonmonetary defaults would be subject to binding arbitration. (4) MidTexas would have 30 days to cure any default, but it could only have three 30-day cure opportunities. If MidTexas did not cure, then Texas Properties would have one year to do so. If Texas Properties failed to cure, foreclosure proceedings could begin. Late payments by MidTexas would be subject to a 7.5 percent late fee. (5) Title insurance would be provided for the property being used as collateral. (6) The parties would prepare a settlement agreement containing mutual releases and dismissals of the lawsuit. (7) Lorman would resign as trustee.
Defendants' counsel proposed dismissing the case within 10 days of the hearing. Plaintiffs' counsel disagreed, stating that dismissals would not occur before the payment of the $500,000 lump sum. The court indicated that dismissals would be filed within 10 days of plaintiffs receiving the lump sum, promissory notes and security, and all the signed documents.
Counsel for defendants proposed that defendants take the responsibility of preparing an initial draft of the settlement documents, and also proposed a method of dispute resolution. Noting that the settlement as placed on the record was binding, but that issues could arise in memorializing the settlement, defendants' counsel proposed the "baseball" method of arbitration for any provision that could not be agreed upon by the parties.
In baseball-style arbitration (so named for its reference to Major League Baseball's salary arbitration process) both parties submit their preferred version of a term under seal, and the arbitrator chooses one of them without modification. (See, e.g., Baseball Arbitration Law, http://definitions.uslegal.com/b/baseball-arbitration, accessed Oct. 12, 2011; see also California Trout, Inc. v. Superior Court (1990) 218 Cal.App.3d 187, 211.) This type of "either/or" choice is designed to encourage both parties to be reasonable.
The court agreed stating: "It's my understanding that . . . the settlement that we have reached today that we will be confirming momentarily by the parties is a fully executed, binding, final settlement pursuant to 664.6 of the Code of Civil Procedure. Parties want to have a further document to memorialize this settlement, the settlement is not contingent upon that document ever being created; but to accommodate that purpose, the parties are going to try to create a document. Any disputes as to the portions of that document will be submitted to the aforementioned baseball-style arbitrators to determine the appropriate paragraphs. And at the conclusion, once the arbitrator has completed the task of preparing that document, it will be submitted to the court. If the parties have not signed it, the court would have the power to order the parties to sign the document."
Defense counsel further stated that in the event of a nonmonetary breach, the parties would agree to arbitrate under Texas law. In such the event of any suit or arbitration to enforce the agreement, the prevailing party would be entitled to attorney fees and costs. After clarifying a number of points, the parties then stipulated to the settlement.
On July 6, defendants' counsel forwarded draft settlement documentation to plaintiffs' counsel, including a settlement agreement and release, a form of MidTexas's deed of trust, a form of Texas Properties' deed of trust, a form of promissory note, and trustee resignation documents. The cover letter requested comment or setting up a meeting for discussion. Plaintiffs instead circulated their own version of the settlement documents, including a lengthy deed of trust form, which was not, according to defendants, the standard Texas State Bar form agreed upon. From plaintiffs' perspective, the documents circulated by defendants indicated that the deeds of trust proposed would be subordinate to the MidTexas/Texas Properties lease and its amendments. Further, plaintiffs claimed to learn about the September 2008 amendment, extending the lease to 2025, for the first time. In short, both parties claimed the other side's version of the settlement agreement contradicted the terms agreed to in court.
According to defendants, the 62-page form proposed by plaintiffs is not the "standard" Texas form, but according to one of its drafters, a lawyer at defense counsel's firm, it is an annotated form, used for educational purposes, with extremely one-sided provisions.
On September 10, the parties appeared in court for the first time since the June 5 settlement on an order to show cause re dismissal. From plaintiffs' perspective, the key issue was that if MidTexas defaulted on payments, and Texas Properties failed to cure, that plaintiffs' subsequent foreclosure would be subordinate to a ground lease that lasted for decades under the terms of the September 2008 amendment. The court noted that the parties had agreed to arbitrate such matters, but plaintiffs' counsel objected to that in principle, stating if there had been no meeting of the minds, the arbitrator could not force a set of terms upon one side. From defendants' perspective, the deed of trust would have to be subordinate to the existing leases, because Mazda, a nonparty in the litigation, held one of the leases. This did not mean that plaintiffs had worthless security, but that they would foreclose on the property subject to the existing leases. The court recalled that the parties had agreed to the standard Texas State Bar form for the deeds of trust, and that it had been discussed on at least two occasions. At the end of the hearing, the court encouraged the parties to keep working.
On September 21, the parties appeared in court again and reported that no real progress had been made. The court stated that it did not feel it could take further action, and suggested that either defendants file a motion to enforce the settlement pursuant to Code of Civil Procedure section 664.6, or that plaintiffs file a motion to set aside the settlement for lack of mutual assent. Lengthy discussion was held about the merits of further mediation or arbitration. During this discussion, plaintiffs' counsel eventually stated that he did not believe an enforceable settlement agreement existed. While the court encouraged the parties to work out the discrepancies in the settlement documents, it noted that the one mechanism that was available to the court to resolve the issue was a motion pursuant to section 664.6.
Subsequent references are to the Code of Civil Procedure unless otherwise indicated.
In November, both parties filed motions for judgment. Plaintiffs moved for entry of judgment or, in the alternative, to set the settlement aside and proceed to trial. Defendants moved for entry of judgment. Among other things, plaintiffs claimed that their purported ignorance of the September 2008 amendment to the lease justified rescission of the settlement agreement due to unilateral mistake. Plaintiffs also raised the issue of the form of the deed of trust, the subordination of the deed of trust to the leases on the property, the number of cure periods available to MidTexas in the event of a default, and the necessity of a survey.
On December 7, the court granted defendants' motion and denied plaintiffs' alternative motion. With respect to plaintiffs' rescission argument, the court asked during the hearing whether the September 2008 amendment had been recorded, and defendants stated that it had. Plaintiffs later learned that the amendment had not been recorded, and filed a motion for reconsideration pursuant to section 1008, subdivision (a).
At the January 2010 hearing, the court granted the motion for reconsideration, but denied plaintiffs' request for rescission. The court concluded there was not a material term that lacked mutual agreement. The court also rejected plaintiffs' objections to the proposed judgment, and entered judgment pursuant to section 664.6. Attached were the promissory note and deeds of trust. While an addendum to the deeds of trust specified the settlement terms, the general terms were those of the Texas State Bar form.
Parties' Actions During Settlement Proceedings
In July 2009, following the court hearing in which the settlement was placed on the record, MidTexas began paying Firestone the agreed upon amount of $150,000 per month. On February 4, 2010, after the entry of judgment, MidTexas paid Firestone the lump sum payment of $500,000. There is no indication in the record that any of these funds were ever returned. Further, MidTexas deposited the required premium for the title insurance, and delivered the copies of the deeds of trust and executed promissory note. Pursuant to the agreement, on January 28, 2010, Lorman resigned as a trustee of the 1986 Trusts.
Lis Pendens Proceedings
Between April 2005 and July 2006, plaintiffs recorded a number of lis pendens on the subject property in Texas. In April 2007, MidTexas filed a motion to expunge plaintiffs' notices of lis pendens. The motion asserted that the lis pendens were void as the lawsuit did not involve a "direct claim of interest" in MidTexas' real property. The trial granted the motion, concluding the complaint primarily involved claims for money damages. We denied writ review.
Plaintiffs now appeal. Defendants moved to dismiss the appeal on the grounds that plaintiffs have knowingly accepted an array of benefits from the settlement while appealing the judgment.
II
DISCUSSION
Relevant Law and Standard of Review
Section 664.6 states: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally 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. 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."
An enforceable settlement agreement under section 664.6 must, in accordance with the statute, either be entered into orally before a court or must be in writing and signed by the parties. (See In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.) These alternative requirements are designed to "decrease the likelihood of misunderstandings . . . . Thus the statute requires the 'parties' to stipulate in writing or orally before the court that they have settled the case. The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It also protects parties from impairment of their substantial rights without their knowledge and consent." (Levy v. Superior Court (1995) 10 Cal.4th 578, 585, fn. omitted.)
"It is for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement. [Citation.] In making that determination, 'the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement. [Citation.] Trial judges may consider oral testimony or may determine the motion upon declarations alone. [Citation.] When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] memory. [Citation.]' [Citation.]" (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)
To the extent applicable, ordinary principles of contract interpretation also apply. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797 (Weddington).)The trial court must give effect to the mutual intention of the parties as it existed at the time the contract was executed. (Civ. Code, § 1636.) The parties' mutual intent is interpreted according to objective, rather than subjective, criteria. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126; Weddington, supra, at p. 811; see also Civ. Code, § 1638.)
"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.' [Citation.]" (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360.) "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." (Ibid.) "'"All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown."' [Citation.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)
We review the trial court's legal conclusions de novo. (Weddington, supra, at p. 815.)
Substantial Evidence of the Settlement Agreement
As noted above, we review the trial court's factual findings for substantial evidence. The appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment, "not merely their own evidence." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see also Schmidlin v. City of Palo Alto (2007) 157 Cal. App.4th 728, 738.) This duty increases with the complexity of the record, which is significant in this case. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) Failure to comply with this requirement may result in a waiver of any question of the existence of substantial evidence. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Plaintiffs, unfortunately, have not sustained this burden. They state the facts in the light most favorable to their own position. While this would justify a decision to deem any issue of substantial evidence waived, we address the substance of their argument in the interests of justice. (See Roy v. Superior Court (2011) 198 Cal.App.4th 1337, 1347.)
Plaintiffs first claim that the oral recitation on the record was legally insufficient because "extensive further documentation was still to be agreed." To the contrary, as the court stated during the hearing in which the settlement was placed on the record: "[T]he settlement that we have reached today . . . is a fully executed, binding, final settlement pursuant to 664.6 of the Code of Civil Procedure. Parties want to have a further document to memorialize this settlement, the settlement is not contingent upon that document ever being created . . . ." The parties then proceeded to stipulate to the settlement. The fact that they did so, after protracted negotiations and the court's warning that the settlement was final and binding, constitutes substantial evidence that the parties had agreed upon all material terms.
Plaintiffs cite numerous cases about missing material terms of contracts and the fundamentals of mutual assent. Plaintiffs appear to ignore, however, that they stood in open court, listened to defendants' counsel recite the material terms of the agreement, clarified points of dispute, listened to the court caution that the agreement would be "fully executed, binding, final" and then proceeded to so stipulate on the record. There is no question that the objective intent of the parties was to settle the case, and settle it they did. They made no provision for future agreement to additional terms, but agreed upon the terms stated at the hearing. (Patel v. Liebermensch (2008) 45 Cal.4th 344, 352 [where parties made no provision for future agreement, and the essential terms of the contract were readily ascertainable, contract was enforceable]; cf. Weddington, supra, 60 Cal.Ap.4th at p. 815 [essential terms of agreement left for future negotiation].)
Plaintiffs assert, for example, that "The primary purpose of the settlement was to provide Plaintiffs with adequate security for the $ 13.5 million promissory note." Perhaps this was plaintiffs "primary purpose," but the terms are what was stated at the hearing, not the undisclosed intentions of either party. (Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 185-186.)
The relevant term stated at that time was that the note would be secured with a trust deed with "standard deed of trust provisions" under Texas law. Plaintiffs' counsel stated: "[T]his is a first deed of trust . . . including whatever the standard default provisions are in the Texas thing." Defendants' proposed version uses a form used by the Texas State Bar, which, as the court later recalled, was precisely what was agreed upon during discussions. When, as here, the same trial court judge hears the settlement and a motion relating to the enforcement of the settlement, "he or she may consult his [or her] memory" as well as considering other evidence. (Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454.) Thus, substantial evidence was adduced that the parties had agreed to use the Texas form. Plaintiffs also complain about the addendum to the deed of trust, but the addendum specifies terms which the parties explicitly agreed to on the record or were readily deduced from those terms, such as the assignment of rents.
Plaintiffs' counsel could not have been referring to the proposed 62-page form, as he did not know of its existence at the time.
With respect to plaintiffs' subordination argument, the terms of the settlement as placed on the record did not make any provision for subordination. What was placed on the record by plaintiffs' counsel was that plaintiffs would have a "first trust deed on all the secured property with standard first deed of trust language, including whatever the standard default provisions are in the Texas thing," which is what they received, not an agreement to subordinate other interests. They agreed to receive a security interest in the property, which is what a deed of trust is by definition. Plaintiffs' alternate interpretation — that their interest should be superior to all others — is untenable, given that Mazda, a third party not before the court, held one of the leasehold interests in the property. Thus, there was substantial evidence for the court's decision upholding defendants' interpretation of this provision.
At oral argument, plaintiffs' counsel emphasized repeatedly that at least some of defendants' lawyers apparently shared his flawed understanding of the import of the "first deed of trust" at some point. But it is only the intent of the parties as demonstrated by the record, and not any undisclosed intent, that matters in our analysis.
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In the remainder of their argument, plaintiffs seek to nit-pick items that were either never discussed during the stipulation (such as interest on the $500,000 payment), differ from the explicit terms stated at the hearing (such as arbitration remedies beyond damages) or are nonmaterial, collateral terms (such as the exact date of the promissory note). After a careful review of the record, we find the trial court's conclusions as to the remaining matters plaintiffs raise are supported by substantial evidence.
Plaintiffs also argue that the court erred by not requiring "baseball" arbitration as to the terms of the settlement. This was discussed in open court at both hearings regarding the settlement. At one point, plaintiffs appeared to reject the idea that arbitration was appropriate. In any event, the court did not err. Contractual arbitration is initiated by the parties, and plaintiffs did not do so. They cannot now complain it was error not to mandate a procedure they did not seek to implement themselves.
Finally, we find no error in dismissing plaintiffs' complaint in January 2010. Plaintiffs claim the complaint was not to be dismissed until after they received the signed settlement documents, yet there is more than sufficient evidence in the record that defendants delivered all of the required documents shortly thereafter. Any error in this "early" dismissal was therefore harmless. The only item that appears to remain outstanding is the title insurance, which awaits plaintiffs' instructions, and therefore any delay is attributable to plaintiffs. This does not justify reversal.
Rescission
Plaintiffs also argue the court erred by declining to rescind the settlement on the grounds of unilateral mistake. They argue they did not know about the September 2008 amendment, which extended the lease between MidTexas and Texas Properties, before entering into the settlement.
Under Civil Code section 1577: Mistake of fact is a mistake, no caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: [¶] 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, [¶] 2. Belief in the present existence of such a thing, which has not existed.
Defendants argue the September 2008 amendment was not material to the settlement, and we agree. As the court noted, even without the amendment, the MidTexas lease could extend at least through 2019, "well past the contemplated due date of the promissory note."
Further, plaintiffs were on notice as to the existence of the amendment, even though they received faulty information about it at Denton's deposition. If they were concerned about the amendment, the proper course of action was to request a copy of it and read the terms for themselves. Where a party is aware that they have only limited knowledge as to a fact, they assume any risk relating to it when entering into a contract, and relief for mistake of fact will not be granted. (Grenall v. United of Omaha Life Ins. Co. (2008) 165 Cal.App.4th 188, 193.) Such is the case here, and we therefore find the trial court properly denied plaintiffs' request for rescission.
Plaintiffs' Acceptance of Settlement Benefits
Defendants argue, and we agree, that an independent ground exists upon which to affirm the judgment. There is undisputed evidence in the record that plaintiffs have accepted substantial monetary benefits under the settlement's terms, including a $500,000 cash payment and $150,000 monthly payments. While plaintiffs claim accepting these funds was merely a passive act on their part and that plaintiffs' counsel told defendants to "do whatever [defendants] thought [they] needed to do," we find this argument entirely unpersuasive.
In Epstein v. DeDomenico (1990) 224 Cal.App.3d 1243, the court held that the appellants could not challenge the trial court's enforcement of a settlement agreement. Appellants had accepted the benefit of the settlement by obtaining an order for the return of a $75,000 security deposit, which was a specific term of the settlement agreement. (Id. at p. 1246.) The court noted that "the acceptance [of the benefits of settlement] must be clear, unmistakable, and unconditional." (Ibid.) Plaintiffs argue that Epstein is distinguishable because the party opposing the settlement actually sought an order from the court under the settlement, while here, they merely passively accepted funds. We disagree that is a valid point of distinction. Counsel for plaintiffs told defendants' counsel that "if payments were going to be made, then they should continue to be made by wire transfer . . . ."
Plaintiffs attempt to have it both ways, accepting substantial monetary benefits under the settlement's terms while at the same time continuing to oppose its enforcement. Nor do we accept their claim that "there is no dispute that Plaintiffs were entitled to this payment because under both Plaintiffs' and Defendants' version of the settlement agreement, a $500,000 lump sum payment was required to be made." Plaintiffs miss the point entirely. Whether or not both parties agreed it was an agreed-upon part of the settlement, it was, indeed, part of the settlement. Plaintiffs cannot both accept part of the settlement's benefits while continuing to argue that the agreement was unenforceable or should be rescinded. "'[T]he right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other. . . .'" (Epstein v. DeDomenico, supra, 224 Cal.App.3d at p. 1246.) Plaintiffs' choice to accept a payment due under the settlement was clear, and provides an independent basis for affirming the court's order. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [trial court's order may be upheld if correct on any ground].)
Accordingly, we find the trial court properly entered judgment in defendants' favor. Plaintiffs' remaining arguments regarding its motion to enforce the settlement and the expungement of the lis pendens are moot, as is defendants' motion to dismiss the appeal.
III
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.