Filed 4/30/18 Mitchell v. Neves CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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SUSAN D. MITCHELL,

Plaintiff and Respondent,

v.

MICHAEL NEVES et al.,

Defendants and Appellants.
C080845

(Super. Ct. No. 158227)




Defendant Michael Neves and plaintiff Susan D. Mitchell entered into a stipulated judgment in which Neves promised to transfer property to Mitchell, and Mitchell agreed to pay Neves or lose possession of the property. A dispute arose as to whether Mitchell made the payment. Both parties filed motions to enforce the stipulated judgment. The court granted Mitchell’s motion, finding she complied with the agreement between the parties. Neves appeals, arguing the court erred in granting the motion. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Transaction
In October 2008 Mitchell borrowed $60,000 from Neves secured by a deed of trust against her property. When Mitchell breached the deed of trust, Neves instituted a nonjudicial foreclosure proceeding. When Mitchell failed to cure the breach, the property was sold to Neves. A trustee’s deed upon sale transferring the property to Equity Trust Company, the custodian of Neves’ self-directed individual retirement accounts, was executed on August 24, 2012. When Mitchell refused to vacate the property, Neves filed an unlawful detainer action against Mitchell on September 20, 2012. The following month Mitchell filed a fraud action against Neves, arguing that Neves had promised to postpone the sale while Mitchell obtained the funds to pay the past due balance.
The Settlement Agreement
On September 8, 2014, in lieu of a trial in the wrongful foreclosure action, the parties entered into a stipulated judgment. The stipulated judgment states: “3) Plaintiff, Susan Mitchell, is to pay one hundred fifteen thousand dollars ($115,000) on or before January 8, 2015. This amount will be paid into an escrow account to be opened by a title company to be retained to facilitate the transfer of title of the subject property from Neves to Mitchell. [¶] . . . [¶] 5) Plaintiff, Susan Mitchell, is to pay the deferred property taxes incurred due to the death of her mother which were advanced by the Defendant, Michael Neves, in the amount of fifteen thousand ninety four dollars and four cents ($15,094.04). This amount will be paid into an escrow account to be opened by a title company to be retained to facilitate the transfer of title of the subject property from Neves to Mitchell.”
Under the stipulated judgment, Mitchell was liable for deferred taxes on the property: “8) There are deferred taxes which were triggered by the transfer of the property and the death of [Mitchell’s] mother. Upon the transfer back to [Mitchel], she will be responsible for the remainder of those taxes. The property will be transferred subject to the outstanding taxes and insurance premiums.” In addition: “9) In the event payments are not made in a timely manner, the unlawful detainer matter will be advanced and a Writ of Possession would be granted. [¶] 10) The parties further understand that if Plaintiff, Susan Mitchell, at any time cannot comply with this settlement agreement, the Court will grant the Writ of Possession, the deed will stay as it is, and Defendant, Neves, will own the property.”
Subsequent Events
Mitchell borrowed $300,000 on January 6, 2015, and deposited it into escrow. On January 8, 2015, the title company received a payoff demand for a $37,328.33 tax lien which rendered the $300,000 deposit insufficient to remove the lender approval contingency and pay Neves.
On January 14, 2015, Neves filed a “Motion for Entry of Judgment Pursuant to Terms of Stipulated Settlement.” Neves claimed Mitchell breached the stipulated judgment by not paying the $115,000 by January 8, 2015.
Mitchell opposed the motion, arguing she had deposited $300,000 into escrow by January 8 and that amount exceeded the amount owed Neves. Therefore, she had complied with the stipulated judgment requirement to make timely payment. Mitchell’s counsel stated in a declaration: “Significantly, the Stipulated Judgment does not contain any terms requiring the amounts of $115,000.00 and $15,094.04 being paid or received by Neves on or before January 8, 2015. What was clearly contemplated and understood was that funds were to be on deposit on or before January 8, 2015. Had Neves wanted to insert additional terms of settlement to include having escrow closed by a date certain, then such terms should have been negotiated for at the time the settlement was agreed to, drafted, and executed. [¶] . . . The Stipulated Judgment did not state a date certain upon which escrow would close. Indeed it would be nearly impossible for the partie[s] to have predicted a date upon which escrow would close based upon unknown variables such as those required by standard title company procedures and documents necessary to close the escrow.” The court denied the motion.
What happened next is a matter of contention. According to Neves, Mitchell “surreptitiously deposited an additional $30,000 into escrow.” On February 26, 2015, Mitchell’s attorney executed a declaration stating that as of February 18 escrow was ready to close. Neves contends “the declaration neglected to inform the court or Neves that escrow was only ready to close because Mitchell had deposited an additional $30,000 into escrow on February 18.”
Mitchell filed a motion to enforce the stipulated judgment. During oral argument, the court set forth the facts: “Ms. Mitchell owed Mr. Neves on a second deed of trust approximately $115,000, and/or more. Payments were made pursuant to the agreement up to January 8th, complying with the agreement in full. On January 6th she deposited $300,000 in escrow. The agreement called for her to deposit $115,000 into escrow.” The court noted the agreement did not provide specifically that escrow was to close on that date, although there were indications it was anticipated to close on that date. According to the court, if time was of the essence a party must show it would suffer significant harm without timely performance. Since Neves failed to show such harm, the court tentatively determined the agreement should be enforced. Following further argument, the court granted the motion.
Neves filed a motion for reconsideration and a request for a statement of decision. Following oral argument, the court denied both motions. Neves failed to abide by the order directing him to sign the documents required to transfer the property to Mitchell. Subsequently, the court issued an order appointing the county clerk to sign the required documents. Neves filed a timely notice of appeal.
DISCUSSION
Neves argues the trial court erred in granting Mitchell’s motion to enforce the stipulated judgment. Neves reasons: “Under the concept of tender, [Mitchell] was required to make an unqualified tender of payment of $130,000 to escrow on behalf of [Neves] by January 8, 2015. Where [Mitchell’s] lender approval contingencies required [Mitchell] to deposit $330,000 in escrow to clear those contingencies, [Mitchell’s] deposit of $300,000 into escrow by January 8, 2015 did not constitute an unqualified offer to pay the full $130,000 due on January 8. Thus, it was improper tender. [¶] Further, the fact that [Neves] authorized escrow to receive the payment does not excuse [Mitchell’s] failure to make an unqualified offer of payment to escrow by January 8, 2015 nor did the designation of escrow to accept the payment extend the deadline for [Mitchell] to tender unqualified payment.” In other words, the settlement agreement contemplated payment of $130,000 to Neves on January 8. Because of other amounts owed by Mitchell, the deposit of $300,000 into escrow was inadequate to ensure the lender would release the required payment to Neves—and indeed the payment was not made until later when Mitchell deposited additional funds.
The notion that the parties may have intended escrow to close and final payment made to Neves on January 8 is plausible. It may be that a payment of $300,000 into escrow was not enough to induce the lender to release funds to Neves on January 8. However, plausibility and possibilities are not our guiding lights. The question is what did the parties intend, and we divine that intent from the written agreement entered into by them. The agreement before us is a stipulated judgment based on a settlement agreement between Mitchell and Neves. A settlement agreement is governed by the legal principles applicable to contracts. A settlement agreement 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 and the agreement may be enforced under Code of Civil Procedure section 664.6. (Gorman v. Holte (1985) 164 Cal.App.3d 984, 988-989.)
Under section 664.6, on motion of either party, the court may enter judgment enforcing a settlement agreement reached during pending litigation and entered into by the parties. (§ 664.6.)
On appeal, when questions of law are raised in a motion to enforce a settlement agreement under section 664.6, we independently review the trial court’s decision. (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1166.)
Neves contends Mitchell agreed escrow was to close and he was to be paid on January 8, 2015. However, the record does not support this claim.
During the hearing, the parties and the court discussed the timing and manner of Mitchell’s compliance with the settlement agreement.
“[Neves’ counsel]: With that Your Honor, the assumption has been that the other case would be advanced, [the] unlawful detainer [case] and writ of possession would be granted if any of the payments are not made in a timely manner.
“The Court: What I prefer to do—we can say we’re advancing it, but the resulting writ of possession, I’m not going to make any findings one way or the other, because there’s a dispute as to what those findings would be, which is encompassed in the settlement agreement. If that’s acceptable, in other words, the writ of possession will issue immediately on January 8, or in the extended period, should all of those preconditions not be met. Is that what we’re to understand[?]
“[Mitchell’s counsel]: January 9.
“The Court: January 9. Fair enough.”
“The Court: All right. And in lieu of all that, we’re set for trial today. You heard the representations made by the attorneys with regard to what you’re agreeing to pay in order to get the property back?
“[Mitchell]: Yes.
“The Court: And are you willing to do that?
“[Mitchell]: Yes.
“The Court: And can I ask you what your relationship with the bank is now in terms of your ability to close an escrow by January 8?
“[Mitchell]: I had submitted a loan a year ago this last spring to FSA, Farm Service Agency. It had been approved in their office ready to be sent to Sacramento for final approval pending on a purchase amount, which we never received.
“The Court: Okay.
“[Mitchell]: I talked with Ed just this last week. A couple days ago. Ed is the loan officer that I deal with in the Red Bluff office of FSA, and I just have to resubmit a new loan application, and that’s why we were needing a little longer than the ninety day period. I have to resubmit and do the process.
“The Court: All right. And are you able to make the interim payments as required by the agreement?
“[Mitchell]: Yes. [¶] . . .[¶]
“The Court: And do you understand that if you can’t comply with this agreement, the Court is going to grant a writ of possession, deed will stay as is, which means Mr. Neves will own your property, you’ll be required to leave the property when the writ of possession is handed to the sheriff after they’re posted, ten days for you to get out—ten or five, I don’t remember now. . . . It’s a few days, but it’s not a lot of time. You understand that?
“[Mitchell]: Yes.”
The court did not conclude that the parties had agreed that escrow must close and Neves paid by January 8, 2015. The court noted a “writ of possession will issue immediately on January 8, or in the extended period, should all of those preconditions not be met.” Nowhere in the discussion did the court state the preconditions referenced consisted of the close of escrow or Neves’ receipt of the $115,000. Neves’ counsel did not offer such a construction or object to the court’s description of the agreement.
Nor does the stipulated judgment support Neves’ argument that Mitchell was required to close escrow or pay him by January 8, 2015. The stipulated judgment states: “3) Plaintiff, Susan Mitchell, is to pay one hundred fifteen thousand dollars ($115,000) on or before January 8, 2015. This amount will be paid into an escrow account to be opened by a title company to be retained to facilitate the transfer of title of the subject property from Neves to Mitchell.”
The terms of the stipulated judgment do not require that Neves receive the money on January 8, 2015, only that Mitchell pay the money into an escrow account. During the hearing on Neves’ motion the court considered the plain language of the stipulated judgment: “I’ll just make a statement what the facts are. Ms. Mitchell owed Mr. Neves on a second deed of trust approximately $115,000, and/or more. Payments were made pursuant to the agreement up to January 8th, complying with the agreement in full. On January 6th she deposited $300,000 in escrow. The agreement called for her to deposit $115,000 into escrow. The document that was to be enforced sought – that it sought to be enforced does not provide specifically that escrow was to close on that date. There are some indications from the transcript and from the document that it was anticipated escrow might close, but it’s not clearly stated.” The court concluded whether escrow had to close or payment made on January 8 “was not explicit and unambiguous as the law requires.” We agree with the trial court’s analysis of the agreement.
In the alternative, Neves argues the court erred because even though Mitchell deposited $300,000, the sum was insufficient to pay Neves because there was a lender approval contingency that when added to what she owed Neves exceeded the $300,000. This necessitated Mitchell depositing an additional $30,000 into the escrow. Therefore, Mitchell’s $300,000 escrow deposit was only partial performance and improper tender.
Neves’ counsel briefly made this argument before the court during the motion for reconsideration and request for a statement of decision. The court rejected the argument: “I didn’t draft the contract, Counsel. I think you did . . . . But the term lender’s contingency is not contained in that contract.” Neves’ counsel further argued Mitchell caused the problem by a delay in starting the escrow process and a lack of diligence in pursuing the escrow. The court responded: “It’s a fact I’ve never been aware of. It’s not in the declaration I’ve seen. . . . I don’t find it relevant. I think that the contract stands for itself.”
Again, we agree with the trial court the stipulated judgment only requires Mitchell to have in escrow the amount owed by Neves: $115,000 by January 8, 2015. Mitchell deposited $300,000 by the deadline. Nothing in the stipulated judgment addresses liens or other contingencies.
DISPOSITION
The judgment is affirmed. Mitchell shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



RAYE , P. J.



We concur:



MAURO , J.



RENNER , J.