Filed 11/20/14 Bank of America v. World Trading CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BANK OF AMERICA, N.A., B248973
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GC038299)
v.
WORLD TRADING, INC., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County. C. Edward
Simpson, Jr., Judge. Dismissed as to appellants Robert Tieger and Tieger Enterprises,
Inc., and affirmed as to World Trading, Inc.
Sacha V. Emanuel; Lieber Williams & Labin, Stanley P. Lieber for Defendants
and Appellants.
Richard D. Simpson, Jr.; Severson & Werson, Kerry W. Franich for Plaintiff and
Respondent.
___________________________________
A dispute between appellant World Trading, Inc. and respondent Bank of America
over title to residential property was sent to a court supervised settlement conference. At
the conclusion of the conference, the court accepted settlement terms specifying, among
other things, that Bank of America would relinquish its interest in the property upon
appellant paying $250,000 within 18 months, and that failure to pay would result in a
quiet title judgment in favor of Bank of America. When Bank of America received no
payments from appellant for 30 months, it moved to enforce the settlement agreement
and to quiet title. The trial court granted the motion and entered judgment quieting title.
On appeal, World Trading contends the settlement agreement is unenforceable
because (1) it included a material term to which World Trading had not agreed and (2)
Bank of America failed to perform one of its obligations.
We affirm.
BACKGROUND
Robert Tieger wholly owns World Trading and Tieger Enterprises, Inc. Tieger
Enterprises entered into an agreement to sell a single family residence it owned on
Oakwood Avenue in Arcadia (hereafter the Oakwood property) to Victor and Silvia
Neander. To satisfy the down payment, Victor’s mother, Donna Mae Neander, executed
a deed of trust to a property on Colorado Boulevard in Arcadia (hereafter the Colorado
property) in favor of Tieger Enterprises. Donna Mae had previously executed a deed of
trust to the Colorado property in favor of Bank of America on an unrelated loan. She
later conveyed the Colorado property outright to Tieger Enterprises in exchange for a
price reduction on the Oakwood property. On June 16, 2004, Tieger Enterprises
conveyed the Colorado property to World Trading. Meanwhile, on December 30, 2003,
Bank of America recorded a deed of trust on the Colorado property to secure an unrelated
loan to Donna Mae.
After the Neanders defaulted on both loans secured by deeds of trust to the
Colorado property: the one taken in exchange of the price reduction on the Oakwood
property and the preceding loan made to Donna Mae by Bank of America, Bank of
America foreclosed and initiated eviction proceedings against a tenant of World Trading
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who occupied the property. A dispute subsequently arose between World Trading and
Bank of America over title to the Colorado property.
The court ordered the parties to attend a mandatory settlement conference, which
took place over three days: February 10, February 25, and March 2, 2010. Tieger and
Bank of America’s counsel attended the February 10 conference. Counsel for Tieger and
World Trading attended the February 25 conference, and a Bank of America management
representative participated by speaker phone. Only Bank of America’s counsel attended
the March 2 conference.
At the February 10 conference, Bank of America agreed to “relinquish all interest
in the Colorado Boulevard Property to World Trading . . . upon payment of $250,000” by
World Trading “no later than . . . 18 month[s]” following the parties’ consent on the
record to the settlement agreement. No interest would accrue on the $250,000 during the
first 12 months of the 18 month term, but would start to accrue “at an annualized note
rate of 6.25 percent” on the first day of the 13th month with “interest payments only . . .
due on the first day of each month during that last six month period.” If any payment
was more than 30 days late, “a stipulation for entry of judgment [would] be entered . . . in
favor of Bank of America quieting title to the Colorado property.” Bank of America
agreed not to “interfere with Mr. Tieger’s right or ability to obtain . . . secondary
financing, and [would] reasonably cooperate in any effort that he undertakes to get such
financing . . . to be used to repair and/or rehabilitate the property to enhance its
marketability and its market value,” but “Bank of America . . . [would] not subordinate or
in any way impact its claim of ownership or its priority claim with respect to any junior
financing that Mr. Tieger may seek or may obtain.” Tieger agreed to assign the deed of
trust obtained to the Colorado property from Donna Mae to Bank of America as
additional security to Bank of America in the event the $250,000 and any interest
payments due were not paid. The parties agreed the court would retain jurisdiction to
enforce any term of this settlement agreement and enter judgment as necessary.
Bank of America, through its counsel, gave preliminary consent to the settlement,
pending formal approval by a bank management committee. On February 25, the bank
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management committee, represented telephonically by Jacqueline Toboloski, consented
to the settlement, with one modification: the 6.25 percent annual interest rate would
accrue “daily, payable in full at the time either the property is sold or up to the first day of
the 19th month.” As Tieger was not present during this conference, the court instructed
Adrian Zamora, World Trading’s counsel, to contact him and confirm his consent to the
modification. World Trading’s counsel later sent Bank of America two emails stating
that Tieger agreed to the modification. The court entered the emails into evidence on
March 2, accepted the settlement terms, and ruled it was “satisfied that Mr. Tieger, not
only is aware of all these terms and conditions, but has agreed to all terms and conditions,
both those exactly stated and those implied. [¶] And that he . . . verbally agreed to those
conditions, and acquiesced to his attorney clearing up the issue of the . . . accrual on the
interest.” The court set an order to show cause re dismissal (OSC) for May 7, 2010.
World Trading made no payments to Bank of America during the 18-month period
following the settlement. Bank of America then granted a 12-month extension, but
World Trading made no payments during the additional 12 months either.
In June 2012, World Trading initiated a trustee’s sale on the Colorado property,
but the court granted Bank of America’s ex parte application for a temporary restraining
order to stop the foreclosure. Bank of America then moved to enforce the 2010
settlement pursuant to section 664.6 of the Code of Civil Procedure.
In October 2012, the trial court found World Trading failed to comply with the
terms of the 2010 settlement agreement, granted Bank of America’s motion to enforce the
settlement, and entered a quiet title judgment in favor of Bank of America. Tieger,
Tieger Enterprises, and World Trading appealed, contending the settlement is
unenforceable because there was no meeting of the minds as to a material term.
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During the pendency of the appeal, Bank of America requested judicial notice of
material indicating World Trading’s corporate charter was suspended in Nevada, its state
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of incorporation.
On July 28, 2014, we directed the parties to file letter briefs addressing whether
the appeal should be dismissed due to World Trading’s inactive status. Only Bank of
America responded.
On August 27, 2014, we issued an order to show cause why this appeal should not
be dismissed on the grounds that: (1) Tieger and Tieger Enterprises had no standing; (2)
World Trading could no longer prosecute the appeal because its corporate status had been
revoked; and (3) World trading abandoned the appeal by failing to respond to our July 28
request for briefing. Appellants filed a letter brief that indicated they had not abandoned
the appeal, but was otherwise nonresponsive. On September 25, 2014, we received a
letter from World Trading’s counsel indicating its corporate charter had been reinstated.
No party has contested the truth of that representation so we accept it.
DISCUSSION
First, we address whether Tieger, Tieger Enterprises, and World Trading have
standing to appeal. Section 902 of the Code of Civil Procedure provides that any party
“aggrieved” by a judgment or order may appeal. (Code Civ. Proc., § 902.) In an action
to quiet title to real property, a party is aggrieved, within the meaning of Code of Civil
Procedure section 902, only if it claims an interest in the property in controversy.
(Landfield v. Gardner (1948) 88 Cal.App.2d 320, 323.)
It is undisputed that in 2003, Donna Mae Neander executed a grant deed to the
Colorado property in favor of Tieger Enterprises. It is also undisputed that Tieger
Enterprises subsequently conveyed its interest in the Colorado property to World Trading
by a grant deed recorded on October 4, 2004. At no point did Tieger himself claim an
interest in the Colorado property. Therefore, under section 902 of the Code of Civil
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Bank of America’s request for judicial notice regarding World Trading’s
suspended Nevada corporate charter is granted.
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Procedure, only World Trading, the latest recipient of a grant deed to the Colorado
property, may claim an interest in the property and appeal the trial court’s judgment.
Consequently, we dismiss the appeal as to Tieger and Tieger Enterprises due to lack of
standing.
Next, we address World Trading’s contention that the trial court erred in enforcing
the 2010 settlement agreement. California’s public policy favors enforcement of
judicially supervised settlements where the parties have agreed to the settlement’s
material terms. (Greyhound Lines, Inc. v. Superior Court (1979) 98 Cal.App.3d 604,
608.) A court, upon motion, may enter judgment pursuant to a settlement agreement “[i]f
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.” (Code Civ. Proc., § 664.6; Greyhound Lines, Inc. v. Superior Court, supra, 98
Cal.App.3d at p. 608; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182-1183.) A
settlement made in a writing signed by the parties, or one made orally by the parties
before the court is enforceable. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.)
In ruling on a motion to enforce an oral settlement agreement, the trial court
should determine whether “(1) the material terms of the settlement were explicitly
defined, (2) the supervising judicial officer questioned the parties regarding their
understanding of those terms, and (3) the parties expressly acknowledged their
understanding of and agreement to be bound by those terms.” (In re Marriage of Assemi,
supra, 7 Cal.4th at p. 911.) A settlement agreement is enforceable if, at the time it was
entered into, there was a meeting of the minds as to its material terms. (Weddington
Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797; Greyhound Lines, Inc. v.
Superior Court, supra, 98 Cal.App.3d at p. 608.)
To determine whether a binding settlement agreement exists, the trial court may
consider declarations, transcripts of the oral settlement, and live testimony. (In re
Marriage of Assemi, supra, 7 Cal.4th at p. 911.) A determination that the parties entered
into a binding settlement agreement is reviewed for abuse of discretion, and will be
upheld if supported by substantial evidence. (Ibid.)
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In Greyhound Lines, Olsen, a car passenger, sued the car’s driver, Hurson, and
Greyhound for injuries sustained in a car-bus collision. (Greyhound Lines, Inc. v.
Superior Court, supra, 98 Cal.App.3d at p. 606.) After several pretrial settlement
conferences, Greyhound and Hurson agreed to pay Olsen a combined amount of $39,500
and sent her the settlement agreement and a release that contained a “hold harmless”
clause. (Ibid.) Olsen refused to sign the release or the agreement. (Ibid.) The court
found she was aware of the settlement amount and had orally agreed to accept it, but
because she refused to sign the release, the settlement could not be enforced. (Id. at p.
607.) The appellate court agreed, ruling that because the release imposed a potentially
substantial obligation on Olsen, her refusal to sign it indicated she had not consented to
the settlement. (Id. at pp. 607-608.)
Here, it is undisputed that on February 10, 2010, World Trading and Bank of
America agreed orally in the presence of the trial court that World Trading would pay
Bank of America $250,000 within 18 months, and that interest would accrue on the
unpaid amount at an annual rate of 6.25 percent beginning on the first day of the 13th
month. However, on February 25, 2010, Bank of America proposed and World
Trading’s counsel assented to an additional term: The interest would accrue daily.
World Trading contends this additional term fails to satisfy Code of Civil
Procedure section 664.6 because World Trading did not agree to it either orally before the
court or in writing out of court. It is correct. When the additional term was proposed on
February 25, 2010, World Trading was not present—only its attorney was. And when
Tieger purportedly agreed to the term later, out of court, he did not do so in writing.
However, the additional term is immaterial. The calculation is the same whether
interest is said to accrue at an annual rate or “daily,” absent some sort of compounding,
which no party contends would occur here. World Trading contends for the first time in
its reply brief that it would be required to pay more under a “daily” scheme than an
annual one, but makes no attempt to explain why. Absent such a showing, we cannot
conclude the term added at the February 25 conference was material. The parties agreed
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orally in court to every material term of the settlement, thus satisfying Code of Civil
Procedure section 664.6.
World Trading contends Bank of America represented it would clear title to the
Colorado property but then refused to do so, which prevented World Trading from selling
the property and made it impossible to pay the $250,000 settlement amount. No such
representation was made part of the agreement on the record. On the record, Bank of
America agreed to relinquish its interest in the Colorado property only “upon payment of
$250,000,” i.e., after the money was paid. Although World Trading agreed to seek
secondary financing and Bank of America agreed it would “not interfere” with that effort,
nothing obligated Bank of America to clear title or otherwise assist in securing financing.
On the contrary, the agreement provided that Bank of America would not “subordinate or
in any way impact its claim of ownership” to the property. The sale of the Colorado
property and any title clearance that would have been necessary to effect it therefore were
not conditions precedent to World Trading paying Bank of America the $250,000.
Tieger declared that Bank of America’s counsel, Richard Simpson, promised he
would “clear the title,” but gives no account of when or under what circumstances such a
representation was made or when the proposed clearance was to occur. For all we can
determine, the alleged statement was made long after the settlement agreement, while
World Trading was attempting to sell the property. At any rate, the lawyer’s off-record
statement did not become part of the agreement on record, and therefore could not
modify Bank of America’s obligations. On the contrary, such a representation would
have contradicted Bank of America’s agreement to suborn its interest in the property only
upon receiving payment, and would subvert the purpose of the settlement.
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DISPOSITION
The order is affirmed. The appeal is dismissed as to appellants Robert Tieger and
Tieger Enterprises. Respondent is to recover costs.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
*
MILLER, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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