Alkasabi v. Chandler Heights AZ CA4/1 (2014) · DecisionDepot
Alkasabi v. Chandler Heights AZ CA4/1
California Court of Appeal Nov 5, 2014 No. D064652Unpublished
Filed 11/5/14 Alkasabi v. Chandler Heights AZ CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
OSAMA A. ALKASABI, D064652
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00099949- CU-FR-CTL) CHANDLER HEIGHTS AZ, LLC,
Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed; motions to dismiss and to declare appellant a
vexatious litigant are denied.
Osama A. Alkasabi, in pro. per., for Plaintiff and Appellant.
ARC IP Law and Ariel J. Sabban for Defendant and Respondent.
Plaintiff and appellant Osama A. Alkasabi appeals from a judgment of dismissal
and an order granting a motion by defendant and respondent Chandler Heights AZ, LLC
(Chandler) to enforce a settlement of the claims in the complaint Alkasabi filed. (Code
Civ. Proc., § 664.6; all undesignated statutory references are to the Code of Civil
Procedure.) We affirm the judgment of dismissal and deny Chandler's related motions to
dismiss and to declare Alkasabi a vexatious litigant.
B. Requirements for Enforceability of a Purported Settlement Agreement
In relevant part, the text of section 664.6 provides: "If parties to pending litigation
stipulate, in a writing signed by the parties outside the presence of 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." This Agreement referenced the enforcement procedures of
section 664.6.
A settlement is valid, binding, and enforceable under section 664.6 if the parties
agreed to all material settlement terms. (Hines v. Luke (2008) 167 Cal.App.4th 1174,
1182-1183.) The role of the court in deciding these summary proceedings is to determine
what terms the parties themselves have previously agreed upon, and not to create or
10
impose material terms. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793, 810 (Weddington); Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206
Cal.App.4th 724, 732.) "The court ruling on the motion may consider the parties'
declarations and other evidence in deciding what terms the parties agreed to, and the
court's factual findings in this regard are reviewed under the substantial evidence
standard. [Citation.] If the court determines that the parties entered into an enforceable
settlement, it should grant the motion and enter a formal judgment pursuant to the terms
of the settlement." (Hines v. Luke, supra, at pp. 1182-1183; Malouf Bros. v. Dixon
(1991) 230 Cal.App.3d 280, 283-284 [trial court has discretion to adjudicate existence of
binding settlement terms upon declarations presented].)
Contract principles apply for analyzing the terms of such an agreement: "A
settlement agreement is a contract, and the legal principles which apply to contracts
generally apply to settlement contracts. [Citation.] An essential element of any contract
is 'consent.' [Citations.] The 'consent' must be 'mutual.' [Citations.]" (Weddington,
supra, 60 Cal.App.4th at pp. 811-812.) Further: " 'The existence of mutual consent is
determined by objective rather than subjective criteria, the test being what the outward
manifestations of consent would lead a reasonable person to believe.' [Citation.]
Outward manifestations thus govern the finding of mutual consent required by Civil Code
sections 1550, 1565 and 1580 for contract formation. [Citation.] . . . The parties'
outward manifestations must show that the parties all agreed 'upon the same thing in the
same sense.' [Citation.] If there is no evidence establishing a manifestation of assent to
11
the 'same thing' by both parties, then there is no mutual consent to contract and no
contract formation." (Weddington, supra, at p. 811.)
C. Ambiguous Term in the Agreement; Review
Since the trial court essentially took evidence from Alkasabi at the hearing, after
having him sworn as a witness, extrinsic evidence was presented about the mutual
understandings of the parties in entering into the Agreement. The tentative ruling noted
that the term in the Agreement, "consideration equal to . . . $60,000" was arguably vague
or ambiguous, and requested argument on the point. To the extent the Agreement
contained ambiguous language, a de novo standard of review applies to the threshold
determination of the ambiguity of its provisions. (Winet v. Price (1992) 4 Cal.App.4th
1159, 1165-1166 (Winet).) We think the trial court had a reasonable basis to determine
that this language was ambiguous and to consider the extrinsic evidence offered.
When considering extrinsic evidence as a means of clarifying an ambiguous
provision, the courts follow these steps: "The decision whether to admit parol evidence
involves a two-step process. First, the court provisionally receives (without actually
admitting) all credible evidence concerning the parties' intentions to determine
'ambiguity,' i.e., whether the language is 'reasonably susceptible' to the interpretation
urged by a party. If in light of the extrinsic evidence the court decides the language is
'reasonably susceptible' to the interpretation urged, the extrinsic evidence is then admitted
to aid in the second step—interpreting the contract." (Winet, supra, 4 Cal.App.4th at
p. 1165.)
12
III
ANALYSIS
A. Procedural Arguments
Alkasabi argues several overlapping objections to the order and judgment
confirming the Agreement. We first address his procedural objection that he was
deprived of an evidentiary hearing. The record shows the trial court swore him in at the
outset of the hearing on the enforceability of the Agreement, and heard his claims. In any
event, the summary procedure of section 664.6 for determining the enforceability of a
settlement allows the use of declarations and argument to the court. The trial court had
before it declarations and lodged documents sufficient to present the relevant issues, and
it followed the appropriate procedure here. (Hines v. Luke, supra, 167 Cal.App.4th at
pp. 1182-1183.) Alkasabi does not discuss the reconsideration ruling and it need not be
addressed here.
Alkasabi seems to seek reopening of the underlying dispute about Chandler's
alleged breach of the exclusive listing agreement in 2010, and he proposes amendments
to his pleadings and argues the amount of damages he still wants. He also relies on the
language of the prior opinion in this case as somehow adjudicating his rights. None of
those arguments is properly before this court. In our prior opinion, we only addressed
specific anti-SLAPP issues, not the merits of the underlying case. (§ 425.16.) The only
issues properly brought before the trial court in 2013, and the subjects of this appeal,
concern the enforceability of the Agreement that addressed the settlement of that
underlying dispute, according to section 664.6 procedures.
13
B. Substantive Arguments
1. Signatures and Revocation
Alkasabi first attacks the existence of any settlement by pointing to the June 20
revocation by Chandler of its June 12 consent to the Agreement, even though Chandler
again signed the Agreement June 24, after Alkasabi did so. An objective standard is used
for determining whether mutual consent to material contract terms was reached, "the test
being what the outward manifestations of consent would lead a reasonable person to
believe." (Weddington, supra, 60 Cal.App.4th at p. 811.) The Agreement provided that
it could be signed in counterpart.
Alkasabi, a sophisticated realtor with several professional degrees (including a
J.D.), signed a copy of the Agreement after negotiating its terms, and he cannot properly
claim surprise or a default from the manner in which the Agreement was still being
finalized during the period when the parties were continuing to negotiate. He has not
shown his offer to settle was withdrawn. When Chandler signed another copy of the
Agreement's signature page, it completed the process of obtaining the consent of the
parties, and this was not shown to exceed the terms of the Agreement.
2. Definition of "Consideration"
Alkasabi argues there was a failure of consideration for the Agreement and it
should be rescinded because there was never a meeting of the minds or mutual consent to
the material terms of the Agreement, on the meaning of the term "consideration."
(Weddington, supra, 60 Cal.App.4th at pp. 810-811 [parties' outward manifestations must
show that the parties all agreed 'upon the same thing in the same sense'].) He thus claims
14
Chandler committed fraud in the inducement to settle when it represented it would pay
$60,000 net cash as "consideration," but it instead obtained the Coldwell Banker assigned
judgment and applied the same $60,000 amount to that balance due, as performance in
supplying "consideration." At argument before the trial court, Alkasabi objected that
buying up another debt was somehow improper.
In support, Alkasabi mainly argues that there was an oral understanding at the
settlement conference (presided over by Judge Nugent) that Alkasabi would be receiving
$60,000 net cash proceeds out of the deal, possibly as a condition precedent to settlement.
He cites to In re Marriage of Assemi (1994) 7 Cal.4th 896, 911 for the concept that a
supervising judicial officer may question the parties regarding their understanding of
terms in a settlement that was reached orally before the court. However, this was not an
oral settlement arrived at in open court, and only a written settlement agreement exists.
In any case, settlement negotiations are privileged and not admissible to show the
negotiated subjects and disposition. (Evid. Code, §§ 1152, 1154.)
The language of the Agreement states that Chandler will supply "consideration
equal to . . . $60,000," as payment in full "for any and all monies alleged to be due and
owing as a result of the Dispute between the Parties." In relevant part, Civil Code
section 1605 defines the term "consideration": "[a]ny benefit conferred, or agreed to be
conferred, upon the promisor, by any other person, to which the promisor is not lawfully
entitled . . . as an inducement to the promisor, is a good consideration for a promise."
15
To the extent the trial court had to consider extrinsic evidence as a means of
clarifying an ambiguous provision in the Agreement ("consideration equal
to . . . $60,000"), it provisionally received Alkasabi's declaration and his sworn evidence
on his intentions and interpretation of the term. The court made specific findings in the
reporter's transcript that both parties had signed the same agreement, and the subjective,
limited interpretation by Alkasabi that he was entitled to cash or "fresh money" was not a
reasonable one. Rather, the term "consideration" was broad enough to encompass
Chandler's reasonably objective interpretation. " 'The existence of mutual consent is
determined by objective rather than subjective criteria, the test being what the outward
manifestations of consent would lead a reasonable person to believe.' " (Weddington,
supra, 60 Cal.App.4th at p. 811.)
Moreover, the assignment and lien procedure used here has not been shown to be
defective or forbidden by the Agreement. Under section 708.410, subdivision (a)(2), a
judgment creditor who has a money judgment against a judgment debtor who is a party to
a (different) pending action may obtain a lien, to the extent required to satisfy that
judgment creditor's money judgment, on the rights of the judgment debtor "to money or
property under any judgment subsequently procured in the action or proceeding."
Section 680.240 defines a "judgment creditor" as "the person in whose favor a judgment
is rendered or, if there is an assignee of record, [meaning] the assignee of record . . . ."
"Assignment of a judgment constitutes an assignment of the debt upon which it
was based." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 734, p. 817.)
Under Civil Code section 1459, an assignment "merely transfers the interest of the
16
assignor. The assignee 'stands in the shoes' of the assignor, taking his or her rights and
remedies, subject to any defenses that the obligor has against the assignor prior to notice
of the assignment." (See 1 Witkin, supra, Summary of Cal. Law, § 735, p. 819.) The
record shows that in the Seahaus Case, Alkasabi independently owed a debt to Coldwell
Banker, apart from his dealings with Chandler. It is not now before us whether both of
the Coldwell Banker abstracts of judgment (recorded Feb. 15, 2008 and Aug. 1, 2011) are
enforceable, in view of the concluding language of the November 23, 2009 amended
judgment that states one final judgment shall incorporate all prior awards and judgments.
The main point here is that nothing in the Agreement prevented Chandler from obtaining
the assignment of the asset of another's final judgment.
Thus, the trial court was justified in treating the assignment of the existing
Coldwell Banker judgment as a separate contractual matter from the underlying
contractual settlement shown in the Agreement. When Chandler applied the disputed
$60,000 amount to another, existing debt of Alkasabi (the assigned judgment), its activity
did not extinguish the effect of that amount as "consideration." Chandler followed the
lien procedure of section 708.410, subdivision (a)(2) to cover the $60,000 amount of
consideration it was providing.
Also, Chandler supplied its own consideration (incurred prejudice) when it gave
up its right to enforce a monetary sanctions award or to pursue its cross-complaint against
Alkasabi. (Civ. Code, § 1605 ["any prejudice suffered, or agreed to be suffered, by such
person, other than such as he is at the time of consent lawfully bound to suffer, as an
inducement to the promisor, is a good consideration for a promise."].)
17
The trial court's construction of the Agreement will be upheld on appeal, so long
as it is reasonable and supported by substantial evidence. (Winet, supra, 4 Cal.App.4th at
p. 1159, 1166; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1632-1633 [" '[I]f the word "substantial" [is to mean] anything at all, it clearly implies
that such evidence must be of ponderable legal significance. Obviously the word cannot
be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of
solid value . . . .' ".].) The trial court had a reasonable basis to accept the meaning urged
by Chandler. It expressly ruled that the cited language was not reasonably susceptible to
Alkasabi's interpretation. (Winet, supra, at p. 1165.) Its factual determinations are
supported by substantial evidence, and the related legal rulings are appropriate.
(Weddington, supra, 60 Cal.App.4th at p. 815.)
Moreover, when Alkasabi points out portions of the evidence that might support
his view of things, it is not equivalent to demonstrating that there was no substantial
evidence in support of the trial court's conclusions that sufficient consideration was
provided to him in return for his promises and performance. Alkasabi has not shown that
the assignment of the other judgment was somehow improper or unenforceable. Instead,
he vaguely contends it was somehow unfair for Chandler to obtain an assignment of the
existing Coldwell Banker judgment, but he has waived such an appellate approach.
" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; In re Marriage of Falcone & Fyke,
supra, 164 Cal.App.4th 814, 830.)
18
3. Third Party Beneficiary Clause in Agreement
Paragraph 11 of the Agreement provides that the named parties to the agreement
are bound by it, and there are no third party beneficiaries of it. Alkasabi points to that
term of the Agreement, and seems to construe Chandler's obtaining of the assigned
judgment as the same as Chandler's granting benefits to a third party (the assignor
Coldwell Banker). However, the concept of a contractual third party beneficiary is
different from a contractual assignment. There are two major types of contractual third
party beneficiaries, an intended beneficiary or an incidental beneficiary. (1 Witkin,
Summary of Cal. Law, supra, Contracts, § 687, p. 773.) This Agreement does not
demonstrate any intention by the parties to create a right to performance in any third
party beneficiary, but instead it clearly states the opposite. The assignment of another
judgment was a separate contractual transaction and did not violate the terms of the
Agreement, even combined with the lien procedure.
In conclusion, Alkasabi has not shown how or why the trial court's conclusions
that he showed objectively ascertainable consent to the material terms of the Agreement
are lacking in any substantial evidence support. (Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632.)
Although Chandler's respondent's brief seeks an award of attorney fees and costs
for settlement enforcement purposes, we decline to decide such a request, which could
properly be brought before the trial court.
19
DISPOSITION
Judgment and underlying orders are affirmed. The ordinary costs on appeal are
awarded to Respondent.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
20
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment of dismissal and the order enforcing the settlement agreement, finding that the term 'consideration' was broad enough to encompass the defendant's interpretation and that the parties had reached a binding agreement under Code of Civil Procedure section 664.6.
Issues
Whether the trial court erred in enforcing a settlement agreement under Code of Civil Procedure section 664.6.
Whether the term 'consideration' in the settlement agreement was ambiguous and subject to extrinsic evidence.
Whether the defendant's acquisition and application of an assigned judgment against the settlement amount constituted a breach of the settlement agreement.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The Court finds that the reference to 'consideration equal to' is broad enough to encompass the interpretation being advocated by the defense and is not limited as being advocated by plaintiff.”
“The Court grants the motion and directs the judgment be entered in accordance with the reasonably objective terms of the agreement that at one time both parties asked the Court to enforce.”
“A settlement is valid, binding, and enforceable under section 664.6 if the parties agreed to all material settlement terms.”