From Casetext: Smarter Legal Research

Ricotta v. Burr

California Court of Appeals, Fourth District, Second Division
Apr 2, 2009
No. E043849 (Cal. Ct. App. Apr. 2, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. INP020907. James A. Cox, Judge.

Thomas Ricotta, Sr., in pro. per., for Plaintiff and Appellant.

Law Offices of Raymond H. Simmons and Robert F. Nunes for Defendant and Respondent.


OPINION

McKinster, Acting P.J.

Thomas Ricotta, Sr., plaintiff and appellant (hereafter Ricotta), appeals from the trial court’s order granting the Code of Civil Procedure section 664.6 motion of William Francis Burr, defendant and respondent (hereafter Burr), to enforce a settlement agreement the two entered into in November 2006. The settlement resolved Ricotta’s claims against Burr as alleged in Ricotta’s lawsuit challenging the legality of a revocable trust and Burr’s corresponding designation as trustee and beneficiary of that trust. After the trial court granted Burr’s motion to enforce the settlement, Ricotta filed a motion for reconsideration which the trial court also denied.

In this appeal, Ricotta again challenges the validity of the trust and related will. He contends, as he repeatedly claimed in the trial court, that without resolving the issue of whether the will and trust are valid, the trial court could not determine whether the settlement agreement was enforceable. Ricotta’s claim is wrong. Therefore, we will affirm.

We also address Burr’s motion under Code of Civil Procedure section 907 seeking sanctions from Ricotta for filing and maintaining a frivolous appeal, which we will deny.

We also deny Burr’s request to take judicial notice of the trial court docket, a request he made in connection with his motion for sanctions on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Resolution of the issues raised in this appeal does not require a lengthy recitation of the underlying facts. For our purpose it is sufficient to note that Ricotta filed a petition on October 17, 2006, to challenge the 2006 will and trust of Robert Julian Ballard, which names Burr the trustee and primary beneficiary of Ballard’s estate, and names Ricotta the successor beneficiary. The 2006 will and trust superseded ones that had named Ricotta as the trustee and primary beneficiary. And there, as they say, is the rub.

Ballard legally changed his name from Zingheim to Ballard, although he apparently used both names in various documents pertinent to the trust.

Ballard died in June 2006, but the exact date is not apparent from the parties’ briefs or the record on appeal, and is irrelevant in any event.

In November 2006, Ricotta and Burr entered into a settlement agreement pursuant to which Burr would transfer various assets of Ballard’s estate, including $10,000, to Ricotta, and Ricotta would dismiss his action against Burr with prejudice. In December, Ricotta told Burr that he had changed his mind and would not honor the settlement agreement. On February 16, 2007, Burr filed a motion to enforce the settlement agreement and for an award of attorney’s fees. Ricotta then filed a petition under Probate Code section 17200 challenging the validity of the trust.

Ricotta apparently had submitted a request for dismissal of his petition, in accordance with the terms of the settlement, but the court rejected the document because it was not in the proper form. As a result, Ricotta’s original petition was still pending and the court conducted a hearing on that petition on January 18, 2007. At that hearing, the court found that Ricotta’s petition was not in the proper form, but granted leave to amend. To ensure that Ricotta filed an amended pleading, the trial court set an order to show cause hearing for February 23, 2007.

At a combined hearing on Burr’s motion to enforce the settlement agreement and Ricotta’s petition to invalidate the trust, the trial court granted Burr’s motion and dismissed Ricotta’s petition. In doing so, the trial court stated that “the only evidence that would convince me to set aside the settlement agreement would be if there was fraud in the inducement of that settlement agreement. I heard no evidence to that effect whatsoever. Absolutely nothing. There’s been no fraud in the inducement of that settlement agreement. The only evidence that you’re attempting to show . . . is that [Riccota] later found out additional evidence that made his case seem to be somewhat better.” After affording Ricotta an opportunity to show fraud in the inducement, the trial court granted Burr’s motion to enforce the settlement agreement and dismissed Ricotta’s petition.

Ricotta filed a motion for reconsideration in which he asserted that in order for the trial court to enforce the settlement agreement, the trial court first had to find that the 2006 will and trust were valid. The trial court denied the motion for reconsideration because Ricotta did not present any new facts. In the interim, Burr filed a motion for attorney’s fees under the provisions of the settlement agreement. The trial court awarded Burr $5,096.50 of the $11,071.50 he had requested in his motion, and ordered that those fees be offset against the money Burr was obligated to pay Ricotta under the settlement agreement.

Additional facts, if any, will be discussed below as pertinent to the issues Ricotta raises on appeal.

DISCUSSION

1.

RICOTTA’S APPEAL

Ricotta contends as he did in the trial court that the enforceability of the settlement agreement depends on whether Burr had authority to enter into that agreement, and that in turn depends on whether the underlying will and trust were valid. Because the trial court did not determine the validity of the will and trust, Ricotta argues that the trial court erroneously granted Burr’s motion to enforce the settlement agreement. Ricotta is wrong, which explains his failure to cite any legal authority to support his claim, and why he did not prevail on this issue even though he raised it several times in the trial court.

The settlement agreement between Ricotta and Burr states in the recitals, among other things, that Ricotta “objects to the purported probate and legality of the Robert Julian Ballard Revocable Trust Dated September 21, 2005 (the ‘Trust’) on various grounds, including that no will purportedly exists, the Trust has no purported real estate assets, and that the Trust was procured by undue influence and improperly executed. [Capitalization omitted.]” By entering into the settlement, Ricotta expressly released his claims against Burr regarding the validity of the will and trust. In other words, the purpose of the settlement agreement was to resolve Ricotta’s challenges to the will and trust, including his claim that the will and trust were invalid and that Burr was not legally the trustee.

Ricotta’s contrary view notwithstanding, the validity of the settlement agreement depends on principles pertinent to the validity of contracts, in particular, whether Ricotta knowingly entered into the agreement. (See Gorman v. Holte (1985) 164 Cal.App.3d 984, 988 [“A settlement is an agreement to terminate or forestall all or part of a lawsuit”].) “Compromise settlements are governed by the legal principles applicable to contracts generally. [Citations.] A settlement contract also has the attributes of a judgment in that it is decisive of the rights of the parties and serves to bar reopening of the issues settled. Absent a fundamental defect in the agreement itself the terms are binding on the parties.” (Ibid.) In order to invalidate the settlement, Ricotta had to show that the agreement suffered from a fundamental defect that would serve to render the contract unenforceable. Ricotta did not make such a showing in the trial court and instead attempted to reassert his original claims against Burr. “A party to a settlement agreement may not seek to rescind it by proving the merits of his original claim and then establishing that an erroneous assessment by him of that claim led to the settlement.” (A.J. Industries, Inc. v. Ver Halen (1977) 75 Cal.App.3d 751, 759.)

For this same reason, we must also reject Ricotta’s other claims directed at challenging the validity of the will, the trust, and Burr’s authority to act as the trustee, namely his claims that Ballard lacked the mental capacity to execute a new will and therefore that document is invalid, and that Burr was Ballard’s caregiver and therefore cannot be a beneficiary of Ballard’s estate.

Simply stated, Ricotta’s claims against Burr regarding the validity of Ballard’s 2006 will and revocable trust are irrelevant because Ricotta resolved those claims when he entered into the settlement agreement.

Ricotta next contends that the trial court abused its discretion by denying his motion for reconsideration without first conducting a hearing. Again, Ricotta is wrong. The trial court did conduct a hearing on his motion for reconsideration, and expressed the view that Ricotta had not made the threshold showing required under Code of Civil Procedure section 1008. Code of Civil Procedure section 1008, subdivision (a), requires a party seeking reconsideration of an order to establish, by affidavit, the new or different facts justifying the relief sought. In addition, the moving party must demonstrate that the new evidence could not have been produced with due diligence at the initial hearing. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1200.) Code of Civil Procedure section 1008, subdivision (e), provides that the statute is jurisdictional; thus, no relief can be granted unless the specified requirements are met.

Ricotta did not meet the above noted requirements. Instead he asserted in his motion for reconsideration, as he has all along, that the validity of the settlement agreement depends on the validity of the underlying will and trust, and he purported to offer new facts to support his claim that the will was not valid. Despite the frequency with which he repeats it, Ricotta’s claim is irrelevant. Ricotta did not show a fundamental defect in the settlement agreement that would suffice to render it unenforceable (Gorman v. Holte, supra, 164 Cal.App.3d at p. 988), and therefore he did not show a basis upon which the trial court could grant relief.

Moreover, even if relevant to the issue, Ricotta has not demonstrated that he was unable with due diligence to discover the facts set out in his motion for reconsideration. For example, Ricotta has repeatedly claimed that he was unable to obtain a copy of Ballard’s most recent will from the probate court, and consequently was unable to identify and contact the witnesses who signed that document in order to determine the will’s validity. Ricotta did not demonstrate that the probate court was the only means by which he could have obtained a copy of the will. It occurs to us that Burr must have had a copy of the will which Ricotta could have reviewed before he signed the settlement agreement. Ricotta has not demonstrated that Burr refused to provide a copy of the will or that he was otherwise precluded from fully investigating his claims against Burr before he entered into the settlement. Ricotta has not shown, and in our view cannot show, that the settlement agreement was invalid or that the trial court should have reconsidered its ruling on the enforceability of that settlement agreement. Simply put, Ricotta has done nothing more than restate his original claims against Burr regarding the invalidity of the will and trust.

Ricotta next contends that Burr breached the settlement agreement in various ways. Ricotta has not demonstrated that he raised any of these issues in the trial court, an oversight revealed by his wholesale failure to support his claims with citations to the record on appeal. Because he did not raise them in the trial court, Ricotta may not raise the claims for the first time on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18.) Moreover, the issue raised and resolved in the trial court was whether the settlement agreement was enforceable. Ricotta’s breach claims concern whether the parties have actually performed the obligations under the settlement agreement, e.g., Ricotta contends that Burr has not provided him with the titles to vehicles he agreed to give Ricotta as part of the settlement. Those issues were not raised in the trial court and therefore are not properly asserted in this appeal. If either Burr or Ricotta fails to perform their obligations under the settlement agreement, they may each sue the other for breach of that agreement.

Finally, Ricotta contends that sanctions were not justified. Ricotta has not demonstrated that sanctions were awarded nor can we find such an award in the record on appeal. The clerk’s transcript reflects that Burr sought to recover attorney’s fees from Ricotta under the attorney’s fees provision in the settlement agreement and the trial court awarded him those fees, albeit in an amount significantly less than what Burr had requested. Ricotta is simply mistaken in his view that the trial court awarded sanctions, and in any event his claims challenging the purported sanctions award are based on his misunderstanding of the law. For these reasons we must reject his final assertion.

2.

BURR’S REQUEST FOR SANCTIONS ON APPEAL

Burr filed a motion seeking dismissal of the appeal on the ground that it is frivolous, and also requesting sanctions against Ricotta for pursuing a frivolous appeal. We deemed that motion to be a motion under Code of Civil Procedure section 907 seeking sanctions for filing and maintaining a frivolous appeal, and as such we reserved ruling on the motion in order to consider it with the appeal. (See Cal. Rules of Court, rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646.) We now address that motion.

“An appeal is frivolous ‘only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]’ [Citation.] Nevertheless, an appeal is not frivolous simply because it has no merit. [Citation.] Sanctions are to be ‘used most sparingly to deter only the most egregious conduct.’ [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422, quoting In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650, 651.)

We agree with Burr that Ricotta’s arguments are completely meritless, and that his briefing violates nearly every pertinent court rule and principle of appellate practice. Moreover, we could infer from his repeated and persistent assertion of the same meritless arguments that he has pursued this appeal in order to harass Burr and therefore the appeal is improper. However, we also could infer that Ricotta, who has represented himself in the trial court and in this appeal, knows nothing about the pertinent procedures and the substantive law. Although he is held to the same standard as an attorney, we nevertheless must take the fact of his self-representation into consideration in deciding whether sanctions are appropriate. We simply cannot say under these circumstances that sanctions for a frivolous appeal are warranted. Therefore, the sanctions motion is denied.

After he filed this appeal, Ricotta filed a motion in the trial court to vacate the settlement agreement. The trial court recognized that it lacked jurisdiction to hear the motion while the appeal was pending, but the trial court then denied the motion without prejudice. Arguably, the trial court should have dismissed the motion. In any event, because we granted Ricotta’s motion to augment the record on appeal to include the postappeal motion to vacate the settlement, Burr has asked us to augment the record to include his response to that motion. That request is denied. Ricotta’s postappeal motion to vacate the settlement agreement was improperly considered by the trial court, and we improvidently granted his request to augment the record on appeal to include that motion.

Burr, of course, may recover the attorney’s fees he incurred in responding to this appeal under the attorney’s fee provision in the settlement agreement. (Genis v. Krasne (1956) 47 Cal.2d 241, 248.)

That said, we strongly encourage Ricotta to consult an attorney before he pursues this matter further. His claims regarding the validity of the settlement agreement are simply wrong, despite his fervent belief otherwise. Should he continue to raise these claims, he faces potentially severe consequences.

DISPOSITION

The order granting Burr’s motion to enforce the settlement agreement and the order denying Ricotta’s motion to reconsider that order are affirmed. Burr to recover his costs on appeal.

We concur: Richli, J., Gaut, J.


Summaries of

Ricotta v. Burr

California Court of Appeals, Fourth District, Second Division
Apr 2, 2009
No. E043849 (Cal. Ct. App. Apr. 2, 2009)
Case details for

Ricotta v. Burr

Case Details

Full title:THOMAS RICOTTA, SR., Plaintiff and Appellant, v. WILLIAM FRANCIS BURR…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 2, 2009

Citations

No. E043849 (Cal. Ct. App. Apr. 2, 2009)

Citing Cases

Ricotta v. Burr

Ricotta would receive $10,000 from Ballard's estate, and Burr would transfer six tangible assets of Ballard's…