Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. VG03103228
Margulies, J.
Plaintiff, Johnson Su, in propria persona, appeals from a judgment entered pursuant to Code of Civil Procedure section 664.6, enforcing an oral agreement to settle the most recent of several lawsuits arising out of a long-standing dispute with defendants Lien Ping Chen, Shu Fen Chou Chen, and LBC Development Corporation (LBC). The dispute concerns ownership of a 183-acre parcel of real property in Livermore, California, a note and deed of trust secured by that property, and ownership and control of LBC.
All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
Plaintiff’s primary contention on appeal is that defendants’ failure to pay an agreed sum on time rendered the settlement void or unenforceable. He further contends the terms of the judgment exceed the scope of the agreed settlement. Plaintiff also raises several issues regarding LBC’s participation in the settlement and performance of its terms, and asserts the court erroneously restricted his trial testimony and was biased against him.
We hold the parties entered into a binding oral settlement agreement that was not rendered void simply because defendants’ payment to plaintiff was late. We also hold the terms of the judgment do not exceed the scope of the agreement. We deem the remaining contentions to be waived, and affirm the judgment.
I. FACTS
The parties have been engaged in litigation for years over issues relating to a 183-acre parcel of property in Livermore, California. Title to the property has been held in the name of LBC since 1985. Most of the litigation has concerned a note, deed of trust, and assignment of rents, ownership of LBC, and the scope and enforceability of a compromise and settlement agreement the parties entered into on January 22, 1999.
In 2004, the Second District Court of Appeal affirmed a second amended judgment, based in part on a January 22, 1999 compromise and settlement agreement the parties had entered into in Alameda County (hereafter 1999 settlement agreement), declaring defendant Lien Ping Chen to be “the sole beneficiary of the short form deed of trust and assignment of rents dated and recorded on November 7, 1994,” and declaring all purported assignments of that deed of trust and of rents “to be null and void.” The judgment also declared plaintiff had “ ‘no bona fide relationship... with LBC.’ ” The judgment, did not, however, quiet title to the Livermore property because it is located in Alameda County.
On June 24, 2003, while that appeal was still pending, plaintiff filed the instant complaint against defendants for declaratory relief, to quiet title, and for damages. On February 22, 2006, LBC filed a cross-complaint. The trial commenced on October 12, 2007. At the outset of trial, the court stated its tentative rulings on pending motions. Among other things, the court tentatively ruled the affirmative defense of unclean hands was established as a matter of law by the prior decision of the Second District Court of Appeal. After hearing further argument, the court decided it would allow plaintiff to present his case, but granted defendants’ motion in limine to preclude plaintiff from presenting evidence inconsistent with recitals in the 1999 settlement agreement and recitals in the deed of trust.
After plaintiff testified, plaintiff’s counsel informed the court the parties had reached a settlement and wanted to state the terms on the record. He also stated the parties had agreed the court would reserve jurisdiction under section 664.6 to enforce the agreement, and, if necessary, enter a judgment in accordance with the agreed terms.
Plaintiff’s counsel stated the agreed terms were as follows: Defendants would pay plaintiff $90,000 in exchange for a mutual “release of all claims against all parties to this lawsuit and anybody affiliated with them.” The parties also would waive the Civil Code section 1542 limitation on the scope of a general release. Defendants were to make the payment to plaintiff within 60 days. Plaintiff agreed to release the lis pendens or have it expunged, and to dismiss the complaint with prejudice. Defendants agreed to dismiss their cross-complaint. Plaintiff further agreed to entry of a stipulated order enjoining him from filing any more lawsuits arising out of the same underlying dispute. Counsel for LBC added that the parties had agreed, “for all intents and purposes [to] quiet title on the property, [title to] the 183 acres as described in the complaint is quieted and no further actions will be brought against that title.” The parties agreed to bear their own fees and costs.
Before commencing voir dire of his client, plaintiff’s counsel initially stated his understanding that “[i]f the money isn’t paid then the settlement implodes. If we don’t have the money in 60 days we set the thing for trial again.” The court responded, “[T]he whole point of the 664.6 [procedure] is that a motion can be brought in this department to enforce the agreement.” After some further discussion the parties agreed that if defendants did not make the payment on time, plaintiff would not be required to expunge the lis pendens until he was paid and could move to have the court enter judgment in his favor in the amount of $90,000.
The court asked counsel to voir dire their clients “and reiterate the terms so that we have no misunderstanding before we leave this courtroom.” During voir dire, plaintiff confirmed his understanding of the agreed terms. He specifically confirmed he understood that “if for some reason a written agreement... is not put together... what you’ve agreed today even in the absence of a further writing would be enforceable against you.” The court also asked whether plaintiff understood “if you fail to comply with the agreement, or if the other parties to the agreement fail to comply,... either party may bring a motion to enforce this agreement in this court without the need to file a further lawsuit?” Plaintiff responded, “Yes.”
Plaintiff’s counsel also questioned defendants Lien Ping Chen and Shu Fen Chou Chen under oath. They confirmed they also understood and agreed to the same terms. Defendants confirmed they understood “if there’s a dispute about the injunction that [plaintiff] is agreeing to, or your failure to pay or anything relating to today’s proceedings that the Court” would hear those matters. After seeking reassurance that the injunction barred plaintiff from filing another lawsuit, and would be enforceable on penalty of contempt, defendants stated they understood and agreed.
The court vacated the trial date and continued the matter for a compliance hearing. The court also clarified that the 60 days to pay the $90,000 ran from October 12, 2007, the day the parties put the oral terms of their agreement on the record.
The parties returned to court on December 20, 2007, for the compliance hearing. A dispute had arisen because defendants had not paid plaintiff on the agreed date. Defendants’ counsel represented to the court that he had offered to send the funds to plaintiff’s counsel, but plaintiff had not approved or signed the written release. Plaintiff’s counsel asked the court to put the case back on the trial calendar, and defendants’ counsel sought enforcement of the oral settlement agreement. Defendants’ counsel informed the court that, at plaintiff’s counsel’s request, he brought a cashier’s check for $90,000 to the hearing. Plaintiff’s counsel agreed to deposit the check in his trust account pending a full hearing on defendant’s motion to enforce the settlement. Plaintiff, however, refused to sign the check so that counsel could deposit it. He stated he needed “something written down” and asserted defendants had breached the oral settlement agreement by failing to pay within 60 days. The court set the matter for a hearing on a noticed motion to enforce the settlement.
The court held a hearing on defendants’ motion to enforce the oral settlement agreement on March 28, 2007. Plaintiff’s counsel reiterated plaintiff’s position that defendants’ failure to pay him the $90,000 within 60 days rendered the oral settlement agreement void. He informed the court plaintiff still had not endorsed the check defendants had tendered at the compliance hearing, and attempted to give the cashier’s check to the court. The court informed counsel that disposition of the check was between plaintiff and his counsel.
After considering the parties’ declarations and arguments the court issued an order granting defendants’ motion to enforce the settlement. The court found that, on October 12, 2007, the parties had orally stipulated to a settlement before the court and read the terms into the record. “[O]ne of the terms to which both sides agreed was that the oral stipulation would be binding regardless of the preparation of such a written agreement.”
The court further found: “Although one of the terms of the settlement was that Defendants’ payment of $90,000.00 was to be made by December 11, 2007, and Plaintiff’s counsel suggested at an early point in the proceedings that the settlement would be ineffective if the payment was not timely made..., the parties subsequently agreed that the consequence for the failure to make the payment by that date would be that Plaintiff could file a motion for entry of a judgment in the amount of $90,000.00 and would not release the lis pendens until the amount was paid.... Further, Defendants’ counsel attests that he informed Plaintiff’s counsel that the settlement funds were available as of December 7, 2007, and that they could have been paid on that date.... Nevertheless, the payment was made on December 20, 2007, rather than December 11, 2007, due to the parties’ continued discussions about execution of the written settlement agreement (which Plaintiff had not yet signed) and in accordance with counsel’s discussions about alternative means of making the payment.... [¶] In any event, Plaintiff does not dispute that he and his counsel received and accepted a cashier’s check in the amount of $90,000.00 at a compliance hearing on December 20, 2007, which the Court finds to satisfy Defendant’s payment obligations under the terms of the oral stipulation.” The court further stated it would enter a judgment in accordance with the terms of the parties’ oral stipulation.
On April 22, 2008, the court entered a stipulated judgment with an attachment setting forth the terms. The court found “[a]s a matter of fact, the $90,000.00 was paid by Defendants and received by Plaintiff and his counsel... on December 20, 2007.”
II. ANALYSIS
The court entered judgment pursuant to section 664.6, based upon the oral settlement agreement after it granted defendant’s motion to enforce the settlement. “ ‘[Section 664.6] created a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met.’ ” (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429.) When enforcing a settlement agreement under section 664.6, the court has the authority to resolve factual disputes relating to the agreement, to interpret the terms of the settlement, and to incorporate the terms of the settlement into a judgment. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359–1360.)
With respect to the judgment on appeal, plaintiff’s primary contention is that defendants’ failure to pay him the $90,000 by the date originally specified in their oral settlement agreement rendered the agreement void and unenforceable. He asserts the court therefore should have denied defendants’ motion to enforce the settlement, and instead of entering judgment based upon the stipulated terms, it should have set a new trial date. He also contends the terms set forth in the stipulated judgment do not conform to the terms to which the parties orally agreed. He further makes several arguments concerning LBC and its participation in the settlement. Finally, plaintiff asserts the court displayed bias against him, and erred by granting defendants’ in limine motion to preclude him from presenting evidence inconsistent with recitals in a settlement agreement of prior litigation between the parties in Alameda County, and recitals in the deed of trust.
Plaintiff raises numerous issues that are not properly before this court because they amount to collateral attacks on prior judgments or settlements. The only issues properly before us concern the stipulated judgment from which plaintiff has appealed and the underlying order enforcing the settlement.
A. Effect of Failure to Pay Within 60 Days on Enforceability of Settlement
In its order granting defendants’ motion to enforce the judgment, the court found the parties intended to enter into a binding oral settlement agreement on October 12, 2007. It also found the parties had agreed defendants would pay plaintiff the $90,000 by December 11, 2007. Although defendants did not pay plaintiff until December 20, 2007, the court found defendants’ counsel, on December 7, 2007, informed plaintiff’s counsel that the settlement funds were available and plaintiff “could have been paid on that date.” It further found the parties had agreed the consequence for the failure to make a timely payment “would be that Plaintiff could file a motion for entry of a judgment in the amount of $90,000.00 and would not release the lis pendens until the amount was paid.” Based upon these factual findings concerning the terms of the agreement, the court concluded the late payment did not render the oral agreement void or unenforceable. 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.” (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162; see also Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360.)
Substantial evidence supports the court’s findings regarding the agreed consequence or remedy for failure to make a timely payment. The court, as the trier of fact, rejected plaintiff’s assertion that the parties agreed the settlement would be void or nullified if he were not paid on time. Plaintiff relied upon his counsel’s initial understanding, “[i]f the money isn’t paid then the settlement implodes. If we don’t have the money in 60 days we set the thing for trial again,” and argued this statement accurately reflected the agreed terms. Yet, the transcript of the ensuing discussion of the consequence of failure to timely pay amply supports the court’s finding that the parties ultimately anticipated the possibility that defendants might fail to pay, and agreed upon a remedy. When the parties had stated the terms of their agreement on the record, the court, directing its comments to plaintiff, summed up the consequence if defendants failed to pay as follows: “[I]f you make a motion to enforce the judgment you will end up with a judgment. Your lis pendens will remain on the property until the cash is in hand upon which time you will be required to release it. [¶] And if the cash never comes into hand the lis pendens is never released, and then you’ll record your abstract and you will have a secured judgment. If you need to you will sell the property.”
Thus, by the terms of the agreement, defendants’ failure to pay plaintiff on time did not render the settlement agreement void or unenforceable. Instead, the parties agreed the appropriate remedy would be for the court to grant a motion to enforce the oral settlement and enter a judgment. (See Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th 1421, 1428 [upholding trial court’s conclusion that failure of a party to perform does not necessarily nullify a settlement agreement, and instead oral agreement should by enforced by entry of judgment].) At most the late payment would have entitled plaintiff to move for entry of judgment in the amount of $90,000 and to refuse to expunge the lis pendens until he was paid. He elected not to move for entry of judgment, and since he had been paid by December 20, 2007, he no longer had grounds to refuse to expunge the lis pendens, or otherwise avoid enforcement of the agreement by entry of a judgment.
B. Terms of Judgment and the Agreed Terms
Plaintiff next contends the terms set forth in the judgment exceed the terms to which the parties agreed. Specifically, plaintiff contends he did not agree to expungement of the lis pendens or a mutual release of all claims against LBC, nor did he agree to the term quieting title in defendant LBC.
Plaintiff also asserts, to be a valid stipulated judgment, the judgment should have been signed by all parties. This is incorrect. Pursuant to section 664.6, the parties may enter into a binding oral settlement agreement by placing the terms of their agreement on the record before a judge. Once the parties have reached an oral settlement, they “may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms.” (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1431.) The oral agreement is enforceable by entry of judgment even if never reduced to writing, or if one or more party refuses to sign it.
The record does not support plaintiff’s contentions. Plaintiff’s counsel stated on the record that defendant’s payment of $90,000 to plaintiff “will be in exchange for a total release of all claims against all parties to this lawsuit.” (Italics added.) Since LBC was a named defendant, plaintiff necessarily agreed to release any claims against LBC in addition to claims against the Chens as individuals. He also expressly agreed to release or expunge the lis pendens upon receipt of payment, and agreed “defendants will have clear title to the property.” The reference to “defendants” again necessarily included LBC.
C. LBC’s Participation in Settlement
LBC and the individual defendants were represented by counsel at the October 12, 2007 hearing, and the individual defendants were sworn and agreed to the terms of the oral settlement. Plaintiff nonetheless asserts that the settlement was not enforceable because LBC was not “sworn-in as a party” at the October 12, 2007 settlement proceedings, and the individual defendants did not have authority to consent on behalf of LBC.
The contention is waived for two reasons: First, plaintiff cannot establish as a matter of fact, for the first time on appeal, that the individual defendants did not have authority to bind LBC. He cites only an unauthenticated corporate resolution purporting to be signed by Shu Fen Chou Chen declaring the stock certificate she and Lien Ping Chen held as the sole shareholders of LBC was “ ‘phony.’ ” Plaintiff does not provide any citation to the record showing he submitted the corporate resolution to the court in opposition to the motion to enforce the settlement, or even argued to the court that the individual defendants had no authority to consent on behalf of LBC. Second, plaintiff does not cite any legal authority in support of his assertion that LBC was not bound by the settlement agreement. In the absence of citation to the record, legal argument, or citation to legal authority, we deem plaintiff to have waived this contention. (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15.)
Plaintiff also asserts that LBC has not dismissed its cross-complaint and did not provide him with a release. The only record citation plaintiff provides does not support his assertion that the cross-complaint is still pending. He cites the transcript of a pretrial discussion in which Mr. Ackerman, counsel for LBC, in response to the court’s observation that little had been said about the cross-complaint, informed the court it was largely protective, but that he did not yet intend to dismiss it. This discussion preceded the settlement, the terms of which unequivocally included an agreement that the cross-complaint “will be dismissed with prejudice as part of the dismissal of plaintiff’s claim with prejudice.”
The record also does not support plaintiff’s assertion that LBC did not release its claims against him. The judgment expressly includes mutual releases by plaintiff and “Defendants” including LBC.
D. Limitations on Plaintiff’s Trial Testimony and Judicial Bias
Finally, plaintiff asserts the court erred in granting defendant’s motion in limine precluding plaintiff from presenting evidence inconsistent with recitals in the 1999 settlement of prior litigation between the parties in Alameda County, and recitals in the deed of trust. He also contends the court’s tentative ruling on the affirmative defense of unclean hands shows the court was biased against him.
Apart from the assertion that these rulings were not in his favor, plaintiff does not offer any legal argument as to why these rulings were erroneous, or showed bias against him. Nor does he cite or analyze any legal authority in support of his contention. We therefore deem plaintiff’s objections to these rulings, and his claim of judicial bias to be waived or abandoned. (H.N. & Frances C. Berger Foundation v. City of Escondido, supra, 127 Cal.App.4th at p. 15.)
We note the ruling on the unclean hands defense was only a tentative ruling. After hearing argument, the court did not adhere to its tentative ruling, and allowed plaintiff to proceed to try and prove his case.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.