Bajan v. Mikos CA4/1

Filed 7/25/16 Bajan v. Mikos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

MATTHEW BAJAN, JR., et al., D068314

Plaintiffs and Respondents,

v. (Super. Ct. No. 37-2008-00094754-
CU-FR-CTL)
JAN MIKOS, et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Richard E. L.

Strauss, Judge. Affirmed.

Jan Mikos and Halina Mikos, in pro. per., for Defendants and Appellants.

Grunsky, Ebey, Farrar & Howell, Thomas N. Griffin and Frederick H. Ebey, for

Plaintiffs and Respondents.

Matthew Bajan, Jr. and Boguslaw Bajan filed a lawsuit against Jan and Halina

Mikos. The parties later entered into a settlement agreement in which the Bajans agreed

to dismiss the lawsuit in exchange for the Mikoses transferring their home to the Bajans,

subject to the Mikoses retaining a life estate in the property.
 The sole issue on appeal concerns the court's order appointing an elisor to sign

deeds implementing this settlement agreement. The Mikoses contend the order must be

reversed because the deeds are inconsistent with the Settlement Agreement. They also

contend the court erred in granting the motion on an ex parte basis and denying their

continuance request. These contentions are without merit and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

The Bajans (two adult brothers) sued the Mikoses and the representatives of Henry

Lisowski's trust and estate. In their lawsuit, the Bajans alleged the Mikoses and Lisowski

engaged in wrongful conduct (including fraud and forgery) pertaining to their father's

will and estate assets. The Bajans also alleged these parties were responsible for their

father's death. Lisowski later committed suicide.

On October 4, 2011, numerous parties who had claims against the Lisowski estate

and against the Mikoses engaged in a global mediation of all claims asserted in the

various lawsuits, including the Bajans' claims. At the end of the day, all parties agreed to

a comprehensive multi-party written settlement agreement (Settlement Agreement). The

Settlement Agreement provided it was a final resolution of all disputes and controversies

between and among the parties. The Bajans and Mikoses were each represented by

counsel.

1 We summarize only the facts relevant to the appellate issues before us. A more
detailed discussion of the facts is contained in our prior unpublished opinion, Bajan v.
Mikos (Mar. 19, 2013, D061380) (Bajan I).

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 Under the settlement terms, the Bajans agreed to release their claims against the

Mikoses in exchange for the Mikoses transferring their home (the Property) into an

irrevocable trust which provided the Mikoses with a life estate with the remainder to the

Bajans upon the death of both Mikoses.2 The parties also "agree[d] to execute any

documents necessary to accomplish" this property transfer. The Mikoses signed the

agreement, as did Matthew Bajan on behalf of himself and his brother Boguslaw (who

lives in Poland) under a power of attorney.

About two weeks later, the Mikoses stated their intent to revoke or rescind their

consent to the Settlement Agreement. They claimed their consent resulted from "undue

influence and mistake" and that they did not understand the alternatives and

consequences of the settlement before signing the agreement.

In response, the Bajans filed a motion requesting the court enter judgment on, and

enforce, the Settlement Agreement. (Code Civ. Proc., § 664.6 (§ 664.6).) The Mikoses

opposed the motion on several grounds, including that the agreement was not enforceable

under section 664.6 because one of the brothers (Boguslaw) did not personally sign the

Settlement Agreement and because the agreement was the product of undue influence,

2 Specifically, the agreement stated: "Within 10 days of the court order approving
the Settlement, Jan and Halina Mikos will transfer ownership in the [Property] to an
irrevocable trust (to be known as the 'Jan and Halina Mikos Irrevocable Trust') or
otherwise so as not to trigger reassessment of property taxes, said trust or other transfer to
be drafted by the attorney for the Bajan Plaintiffs and subject to the approval of Jan and
Halina Mikos, the terms of which trust or other transfer shall include a life estate in favor
of Jan and Halina Mikos and distribution of the property after the deaths of both Jan and
Halina Mikos to the Bajan Plaintiffs."

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economic duress, and mistake of fact. After an evidentiary hearing, the court rejected

these contentions, granted the section 664.6 motion, and entered judgment on the

Settlement Agreement.

This court reversed the judgment on appeal. (Bajan I, supra, D061380.) We held

that parties are not entitled to use the expedited section 664.6 procedure to enforce a

settlement agreement unless all parties personally signed the agreement, and that a

signature by an authorized agent does not meet this test. (See Levy v. Superior Court

(1995) 10 Cal.4th 578, 585; Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1122.)

We stated, however, that this conclusion meant "only that the settlement agreement is not

enforceable through the expedited section 664.6 procedure. It does not preclude the

enforcement of the written settlement agreement through other procedural means,

including an amendment of the pleadings or an independent breach of contract action."

(Bajan I, supra, D061380, at p. *2.)

On remand, the Bajans moved to amend the complaint to add a cause of action for

breach of the Settlement Agreement, and requested bifurcation of this claim. The day

before the court was scheduled to rule on this motion, the Mikoses filed for bankruptcy.

After several months of bankruptcy proceedings, the bankruptcy court transferred

the case back to the superior court for a determination on the enforceability of the

settlement between the Mikoses and the Bajans. The superior court then held a "[c]ourt

[t]rial" on the issue of the enforceability of the Settlement Agreement. At the July 2014

trial, the Mikoses were represented by counsel and had an interpreter (their native

language is Polish). The Mikoses testified and presented evidence in support of their

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claims that their signatures on the Settlement Agreement resulted from duress and they

did not understand what they were signing.

The next month, in August 2014, the court entered an order (August 2014 order)

rejecting the Mikoses' claims and determining the Settlement Agreement was enforceable

by the Bajans "through the remedy of specific performance." The court found the

Mikoses failed to meet their burden to establish the Settlement Agreement resulted from

coercion or duress or that the Agreement was unconscionable. The Mikoses' attorney

signed the order, approving it as conforming to the court's ruling.

The matter then returned to the bankruptcy court. About six months later, the

bankruptcy court issued an order dismissing the bankruptcy case and terminating all stays

related to the case.

Meanwhile, the parties' counsel engaged in discussions regarding the form of the

transfer deeds required by the Settlement Agreement, but the Mikoses ultimately refused

to execute the deeds. In response, on April 20, 2015, the Bajans brought an ex parte

motion seeking an order appointing an elisor to sign the necessary documents to transfer

title under the terms of the Settlement Agreement and the August 2014 order.

In support of this motion, the Bajans submitted a copy of the Settlement

Agreement and their attorney's declaration explaining the history of the litigation.

Counsel stated the only remaining settlement term "is the Mikos Defendants' transfer of

title on the [Property] to the Bajan plaintiffs," and that the action would be dismissed

upon the execution of the deeds. (Capitalization omitted.) As detailed below, the Bajans'

attorney also described the reasons the Bajans were moving ex parte (rather than by a

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noticed motion), and stated he had given the Mikoses' counsel (David Pomeranz) 28 days'

notice of the hearing and had scheduled the hearing date to accommodate Pomeranz's

schedule.

At the April 22 ex parte hearing, the Mikoses were present and represented by

attorney Pomeranz. The Bajans were represented by their attorney, Thomas Griffin. At

the outset of the hearing, the Mikoses asked the court (through an interpreter) for an

extension of time, stating they wanted a new attorney. Pomeranz said he had been

unaware of the request, but he did not object and urged the court to grant a continuance.

The court asked the Mikoses when they expected to retain a substitute attorney. The

Mikoses responded they did not "exactly know," but they would be "grateful" if the court

postponed the hearing to allow them to seek a new attorney.

The Bajans' attorney strenuously objected:

"Mr. Pomeranz is the attorney of record. We have communicated
with him. We set this date pursuant to his calendar. He was
representing them in the bankruptcy proceeding, aware of
everything. We served him with the moving papers in this, followed
up with an email. I came here from San Jose this morning. [¶]
[There is] [s]ignificant cost and expense to my client to come down
here, arrive, and then suddenly this, and it's just the same pattern that
has been occurring in this case for five years, the same pattern that
the court found in the bankruptcy proceeding."

The Mikoses' interpreter said the Mikoses are "begging" the court for an

extension, stating they "would like to get different representation" and the Property

"represents 30 years of their life earnings." When the court asked the Mikoses to explain

their need for more time, the interpreter replied: "They basically—in many instances

were not aware of what was going on. Like, they don't understand why it was in

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bankruptcy. They don't understand why somebody else wants their house. They don't

understand all that. They say that the last time they were here, they didn't have an

interpreter. When the [Settlement Agreement] was signed by them, they didn't know

what they were signing."

The Bajans' counsel countered by directing the court to evidence that the Mikoses

did have an interpreter at the prior hearing, and stated:

"They've made this argument, 'We didn't understand what we
signed,' multiple times. It's been rejected multiple times. . . . They
were represented by an attorney who spoke Polish. . . .

"I think it is extraordinarily prejudicial, as well as extremely
expensive to my client, to keep coming . . . down here, and then
having the defendants in the case simply say, 'Oh, we don't know
what's going on.' They have been represented by attorneys at every
stage of this proceeding. They've never appeared in pro. per. [¶]
They've . . . taken it up on appeal. They've gone to bankruptcy on
two different bankruptcy filings. At some point, someone has to
hold them accountable for what they have done, for the documents
to sign, for the orders that have been entered in this case."

The court responded: "I think that's correct. This has been drawn out, drawn out,

and drawn out, and these people have been represented throughout . . . ." The court

stated the Mikoses have not identified a justifiable need for a continuance, and that "the

underlying facts have been determined. What's left is to sign the documents. I'm not

going to reopen things that have already been done." The court also observed that the

Mikoses do not "have any arrangements with [another attorney] to come into this case

and they can't tell me when they would have anyone. If they were going to do that, they

should have made the arrangements and had the attorney here." The court also declined

the Mikoses' request to submit new documents (which their attorney had not seen).

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 The Mikoses' interpreter then said the Mikoses are "asking for [an] extension

because they don't want to give away . . . their house. That's what it is. It's giving it

away." The court said, "That's been determined." The court asked whether there are

"final orders . . . in this case?" And the Mikoses' counsel responded: "Yes, sir. Yes,

Your Honor, your order of August 27, 2014."

The court then stated it would grant the Bajans' motion. Later that day, the court

entered an order appointing an elisor (the San Diego County Superior Court Clerk) to

sign two attached deeds, a grant deed and a quitclaim deed. The grant deed states in

relevant part: "HALINA MIKOS . . . [¶] hereby GRANTS [the Property] to [¶]

MATTHEW BAJAN, JR. and BOGUSLAW BAJAN as tenants in common, while

reserving therefrom a life estate in favor of HALINA MIKOS and JAN MIKOS, subject

to the terms and conditions set forth in the . . . Settlement Agreement in Exhibit B

attached hereto, and incorporated herein by reference." The quitclaim deed states in

relevant part: "JAN MIKOS . . . [¶] hereby [quitclaims the Property] to [¶] MATTHEW

BAJAN, JR. and BOGUSLAW BAJAN as tenants in common, while reserving therefrom

a life estate in favor of HALINA MIKOS and JAN MIKOS, subject to the terms and

conditions set forth in the . . . Settlement Agreement in Exhibit B attached hereto, and

incorporated herein by reference."3

3 This second deed was necessary because during the litigation, Mr. Mikos
transferred the Property by quitclaim to Mrs. Mikos.
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 DISCUSSION

I. Appealability

The Mikoses appeal solely from the April 22, 2015 order appointing the elisor.

On our own motion, we raised the issue of whether this order is appealable and provided

the parties an opportunity to brief the issue. The Bajans filed a responsive letter brief, but

the Mikoses did not.

Based on the applicable authorities, we conclude the order is appealable as a

postjudgment order. (See Code Civ. Proc., § 904.1, subd. (a)(2).) Although there has

been no final judgment entered in the action (because the matter was settled), in its

August 2014 order, the court made a final determination of the parties' rights pertaining

to the settlement and determined the settlement is enforceable and binding on the parties.

The Settlement Agreement required dismissal of the action, and thus the court's August

2014 order enforcing the agreement effectively ended the litigation. The order came after

a hearing at which the parties were represented by counsel, filed briefs, submitted

evidence, and provided testimony on the issue whether the Settlement Agreement was an

enforceable contract. The Mikoses' counsel later confirmed the order was intended as a

final order. On the record before us, this order may be treated as a final judgment for

purposes of determining that the later order appointing the elisor is appealable as a

postjudgment order. (See Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53

Cal.App.4th 841, 845-846.)

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 II. Appellate Principles

A fundamental rule of appellate review is that a challenged order is presumed

correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'All intendments and

presumptions are indulged to support it on matters as to which the record is silent, and

error must be affirmatively shown.' " (Ibid.; see In re Marriage of Arceneaux (1990) 51

Cal.3d 1130, 1133.) If the judgment or order is correct on any theory, the appellate court

will affirm it. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777.)

An appeal is not a second hearing or trial. The role of an appellate court is to

determine whether any error occurred, and if so whether that error was prejudicial to the

defendant. Absent a prejudicial error, a Court of Appeal cannot reverse an order or

remand a matter for a new hearing. (See Foust v. San Jose Construction Co., Inc. (2011)

198 Cal.App.4th 181, 187.) Additionally, the fact the Mikoses are representing

themselves on appeal does not give them greater rights than a represented litigant.

(Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) In propria persona litigants are

presumed to know the applicable rules. (Ibid.)

III. Analysis

A court may appoint an elisor to enforce its orders or judgments. (Blueberry

Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020-1021; Rayan v. Dykeman

(1990) 224 Cal.App.3d 1629, 1635.) If a party "will not or cannot execute a document

necessary to carry out a court order, the clerk of the court, or his or her authorized

representative or designee may be appointed as an elisor to sign the document." (Super.

Ct. San Diego County, Local Rules, rule 2.5.11.)

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 The Mikoses do not challenge the court's authority to appoint an elisor to enforce

its earlier August 2014 order. They instead contend the court erred because the deeds to

be signed by the elisor were inconsistent with the Settlement Agreement. They also

contend the court erred in issuing the order at an ex parte hearing and in refusing to

continue the hearing. As explained below, these contentions are without merit. We also

reject the Mikoses' request that we consider newly submitted evidence.

A. Deeds Are Consistent with Settlement Agreement

The Mikoses contend the court erred in appointing the elisor because they say the

deeds contained conditions inconsistent with the Settlement Agreement terms. The

argument is without merit. The court appointed an elisor to sign the deeds that expressly

incorporated the terms of the Settlement Agreement. The deeds provided that the transfer

of the Property (while reserving a life estate) was "subject to the terms and conditions set

forth in the . . . Settlement Agreement . . . attached [to the deed]." Under these

provisions, the deeds were expressly derived from, and consistent with, the Settlement

Agreement.

In support of their appellate contentions, the Mikoses rely solely on a draft grant

deed that is not the final version of the deed attached to the court's order appointing the

elisor and is not the version of the deeds signed by the elisor.4 The deeds ordered to be

4 We grant the Bajans' request that we take judicial notice of the grant deed and
quitclaim deed signed by the elisor (the Clerk of the San Diego County Superior Court).
(See Evid. Code, § 452, subd. (c).)

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signed did not contain the identified deficiencies. Thus, the Mikoses' arguments are

unavailing.

We also reject the Mikoses' contention the court erred in appointing the elisor

because the signed deeds "may fail to prevent property tax reassessment." (Capitalization

omitted.) The Settlement Agreement contains a provision stating the Property is to be

transferred "so as not to trigger reassessment of property taxes." The Mikoses forfeited

this argument because they did not raise it in the proceedings below. (Kaufman & Broad

Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226.)

Additionally, as the Mikoses admit, there is nothing in the record showing the signed

deeds will trigger a property tax reassessment. To the extent the transfer does trigger a

property tax reassessment, the Mikoses retain their rights (if any) to seek reimbursement

from the Bajans.

The Mikoses next contend the elisor appointment was improper because the

Settlement Agreement states the transfer document will be drafted by the Bajans' attorney

with "approval" by the Mikoses. The Mikoses argue that because they never approved

the deeds, the court erred in appointing the elisor to sign the documents. The argument is

without merit. Viewed in context, this approval provision gave the Mikoses limited

review authority over the transfer document, but did not permit the Mikoses to refuse to

execute the document without any reasonable basis. A contrary conclusion would render

the Settlement Agreement illusory.

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 B. Procedural Challenges Are Without Merit

The Mikoses next contend the court erred by appointing the elisor at an ex parte

hearing and in refusing to provide them with a continuance. These arguments are without

merit.

Generally, an ex parte application requires the moving party to submit evidence

showing "irreparable harm" or "immediate danger." (Cal. Rules of Court, rule

3.1202(c).) In moving for ex parte relief, the Bajans presented their counsel's declaration

stating the court's noticed motion calendar is "significantly impacted" and any additional

delay in executing the deeds would substantially prejudice the Bajans' rights. Counsel

explained that the Mikoses have claimed significant health problems, and that if one or

both of the defendants were to die before the deeds could be signed, this would likely

trigger protracted probate litigation. Counsel also said an expedited hearing was

necessary because the Mikoses had "engaged in a pattern[ ] of transferring ownership of

[the Property] in an attempt to conceal the true ownership, or otherwise frustrate the

terms of the Settlement Agreement," including an interspousal transfer despite the

ongoing litigation.

On this record, the court did not abuse its discretion in deciding the matter on an

ex parte basis. At the ex parte hearing, the Mikoses were represented by counsel. The

Mikoses had 28 days' prior notice of the motion, and the hearing was held on a date

requested by the Mikoses' counsel. The Bajans served the Mikoses with their papers

before their hearing, including a memorandum of points of authorities and supporting

declarations.

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 We also reject the Mikoses' contention the court erred in refusing to continue the

hearing. Trial courts have broad discretion in ruling on continuance motions, and a

reviewing court must uphold the ruling absent an abuse of discretion. (Mahoney v.

Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)

" ' "Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason,

all of the circumstances before it being considered." ' " (Ibid.) In evaluating the court's

ruling, relevant factors include the reasons presented to the trial court for the request,

whether a continuance was necessary to allow the parties to present relevant evidence,

and whether the refusal of a continuance will have the practical effect of denying a fair

hearing. (See In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) An

appellant has the burden of showing an abuse of discretion and prejudice resulting from

the denial of the request. (People v. Barnett (1998) 17 Cal.4th 1044, 1126.)

The court did not abuse its discretion in denying the continuance motion. The

court repeatedly asked the Mikoses for the reason for the continuance. They responded

by reasserting their objections to the Settlement Agreement and/or stating they wanted to

retain a new attorney. The court had a reasonable basis to find these assertions did not

justify additional delay. The court found the Mikoses already had a full and fair

opportunity to assert their objections to their Settlement Agreement at the July 2014

hearing, and had been represented by counsel at the time. The issue at the ex parte

hearing concerned only a narrow issue of enforcing the court's prior order. The Mikoses

did not suggest they were precluded from presenting all relevant evidence on this issue at

the ex parte hearing. Additionally, the court reasonably found the Mikoses' request to

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retain a new attorney did not justify a continuance, as the Mikoses were raising the issue

for the first time at the hearing (despite 28 days' prior notice of the hearing); the Mikoses

had apparently taken no steps to find a new attorney; and the Mikoses were unable to

identify any reasonable basis that they needed a new attorney.

C. Additional Materials Are Not Properly Before this Court

The Mikoses did not file a reply brief, but after the deadline for filing a reply brief,

they filed 75 pages of new materials. These materials include the Mikoses' lengthy joint

declaration (prepared after they filed their opening brief in this case) in which they

reassert many of their prior arguments challenging the Settlement Agreement and ask this

court to issue a ruling "so [they] can keep the house as theirs." Many of the attached

documents are dated more than 18 years ago.

We decline to consider the Mikoses' declaration or the attached materials. First,

they are untimely. Absent good cause, a party cannot submit new materials after the

statutory briefing deadlines. The Mikoses did not present any grounds showing good

cause for the untimely filing. Second, there is no indication that these materials were

before the trial court when it ruled on the Bajans' motion. Thus, we are precluded from

considering them. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th

434, 444, fn. 3; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.)

Third, the materials do not appear to be relevant to the issues before us, concerning the

court's authority to appoint an elisor to implement the terms of its prior order. The

documents refer mainly to the enforceability of the Settlement Agreement, and the court's

ruling on that issue has long been final.

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 DISPOSITION

Affirmed. Appellants to bear respondents' costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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