Thompson v. Casas CA2/4

Filed 10/21/20 Thompson v. Casas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BRENDA THOMPSON et al., B293066, B297590
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC675611)

v.

JUVENTINO B. CASAS, JR.,

Defendant and Appellant.

APPEAL from a judgment and post-judgment order of the
Superior Court of Los Angeles County, Rita Miller and Lia Martin,
Judges. Affirmed.
James V. Mellein for Defendant and Appellant.
Thomas & Elliott, Jay J. Elliott; Benedon & Serlin, Judith E.
Posner and Kian Tamaddoni for Plaintiffs and Respondents.
 These consolidated appeals arise from a garden-variety settlement
agreement, stipulation for judgment and judgment against defendant
and appellant, attorney Juventino Casas, Jr., by his former clients,
1
plaintiffs and respondents Brenda Thompson and Daniel Pompa III, a
mother and son deprived of an inheritance due to their attorney’s
alleged malpractice.
The litigants participated in a mediation conference before a
retired judge which did not result immediately in a formal settlement
agreement but did yield the written stipulation for settlement
(Stipulated Settlement) signed by the litigants memorializing the terms
of the settlement. The parties specifically agreed the Stipulated
Settlement was a “settlement document . . . intended by [them] to be
binding and enforceable in . . . state court by motion pursuant to [Code
2
of Civil Procedure section] 664.6.” The Stipulated Settlement required
Casas to pay plaintiffs a total of $250,000 in settlement in specific
installments. Among other things, the Stipulated Settlement required
Casas to “execute a stipulated judgment in the amount of $433,275” to
be filed in the event he “default[ed] on the payment terms of [the
Stipulated Settlement].”

1
For clarity, we refer to Thompson and Pompa individually by their
surnames and, collectively, as plaintiffs.

2
Statutory references are to the Code of Civil Procedure.

2
 After Casas refused to execute the formal settlement documents
contemplated by the Stipulated Settlement or to make agreed upon
payments, plaintiffs filed a section 664.6 motion to enforce the parties’
settlement agreement. That motion was granted, and Casas filed a
timely appeal from the subsequent judgment entered against him.
While that appeal was pending, Casas filed a motion with the trial
court to vacate the judgment. The court denied the motion for lack of
jurisdiction, in light of the pending appeal. Casas filed a second appeal
from the order denying his motion to vacate. Casas maintains the
parties lacked a binding settlement agreement and the trial court erred
in entering judgment against him and in its subsequent refusal to
vacate that judgment. For reasons explained below, we find no merit in
Casas’s arguments. Accordingly, we affirm the judgment and the order
denying the motion to vacate.

FACTUAL AND PROCEDURAL BACKGROUND
Elsie Gomez’s Estate Plan
Elsie Gomez was Thompson’s mother and Pompa’s grandmother.
In March 2010, Gomez retained Casas to prepare her estate planning
documents, including a will and an irrevocable trust. Among Gomez’s
assets were two parcels of real property. One was her family home on
Avenida Cesar Chavez in Monterey Park (Cesar Chavez Property), and
the other was located on Houston Street in Los Angeles (Houston
Property). Gomez wished to bequeath the Cesar Chavez Property solely

3
to Thompson and Pompa, and the Houston Street Property to be shared
equally among her five children and Pompa.
Casas prepared several documents, including “Last Will and
Testament of Elsie Gomez” (Will), and an “Irrevocable Trust Agreement
of Elsie Gomez” (Trust), which Gomez executed on May 1, 2010. That
same day, Gomez executed grant deeds transferring title to the Cesar
Chavez and Houston Street Properties from herself to the Trust, the six
beneficiaries of which were her five children and Pompa. Gomez passed
away in August 2015.
After Gomez’s death, Thompson contacted Casas about her
mother’s estate plan, and learned Gomez had bequeathed the Cesar
Chavez Property to her and her son, and that Thompson was named
executor of Gomez’s Will and successor trustee for the Trust.
Thereafter, Thompson retained Casas, who represented and advised her
as to her rights and obligations in connection with administration of
Gomez’s estate. In October 2015, at Casas’s direction, Thompson
executed a grant deed transferring the Cesar Chavez Property from
herself, as successor trustee of the Trust, to herself and Pompa as
tenants in common.

4
Gomez’s Will and Trust Do Not Affect Her Intention to Bequeath the
Cesar Chavez Property to Plaintiffs

In December 2015, Robert Gomez, one of Elsie Gomez’s five
children,3 filed a petition in probate court to determine the validity of
his mother’s Trust and Will and sought to impose a constructive trust.
Robert contested transfer of the Cesar Chavez Property to Thompson
and Pompa. Thompson retained Casas to represent her and Pompa in
defense of Robert’s petition, and Casas filed a response to Robert’s
petition, conducted discovery and made court appearances.
The court referred that matter to mediation during which
Thompson and Pompa—still represented by Casas—were surprised to
learn that, due to errors made by Casas, Gomez’s estate documents did
not effect her intent to bequeath the Cesar Chavez Property to them. In
the Will Gomez left the Cesar Chavez Property to Thompson and
Pompa alone. However, Casas incorrectly prepared the Trust
documents and, as a result, upon Gomez’s death both the Cesar Chavez
and Houston Street Properties irrevocably became assets of the Trust to
be distributed equally among its six named beneficiaries.
In February 2017, Robert Gomez and Thompson reached a
settlement by which Robert agreed to dismiss his petition in exchange
for Thompson’s agreement to transfer title to the Cesar Chavez

3
Thompson and her brother Robert Gomez are the only two of Elsie’s
children whose names are relevant here.

5
Property back to the Trust. Following this settlement, Casas
abandoned his representation of Thompson and Pompa, refused to
communicate with them, and provided no further legal assistance.
In March 2017, Thompson retained new counsel to represent her
as trustee of the Trust. In April 2017, the Cesar Chavez Property was
transferred into the Trust. As trustee, Thompson continued to
administer and distribute Trust assets according to its terms. She sold
the Cesar Chavez Property and began distributing the net proceeds
from that sale to Trust’s beneficiaries. In the end, rather than
inheriting the Cesar Chavez Property in its entirety as Gomez intended,
Thompson and Pompa each received one-sixth of the net proceeds from
the sale of that house.

Plaintiffs Sue for Malpractice and the Parties Mediate and Settle the
Action

In March 2018, represented by attorney Jay Elliott, Thompson
and Pompa filed the operative complaint in this action against Casas
and his wholly owned law firm, alleging claims for legal malpractice in
connection with his drafting of Gomez’s estate planning documents, and
subsequent representation of Thompson as trustee in defense of the
petition filed by her brother. The suit also alleged Casas engaged in
concealment and breached his fiduciary duty by failing to inform
plaintiffs the estate plan documents he prepared for Gomez resulted in
an irrevocable transfer of the Cesar Chavez Property to the Trust.

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 Sometime before April 18, 2018, Casas filed what he referred to as
a “Petition to Probate Lost Will” (L.A.S.C. case No. 18STPB00747), “[In]
re Estate of Elsie Gomez.”
On April 18, 2018, Thompson, Pompa and Casas participated in a
mediation before retired judge Patricia Schnegg, at Judicate West. At
that mediation the litigants executed a written “Stipulation for
Settlement” (Stipulated Settlement) to settle this action “according to
the terms memorialized [in that agreement].” The Stipulated
Settlement explicitly states it is a “settlement document . . . intended by
the parties to be binding and enforceable . . . by motion pursuant to . . .
§ 664.6.” The Stipulated Settlement confirms the parties’ agreement to
settle this matter on the following terms:
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“Plaintiffs agree to accept and defendants agree to pay the sum of
$250,000 as a full and complete settlement of their claims against
defendant[]. This settlement is being entered into based upon the
representation that the [Cesar Chavez Property] was sold and
that distributions of approximately $87,000 were made to each of
the 6 beneficiaries under the Trust. The balance from the sale of
that property shall be distributed once all taxes and obligations
relating to that sale have been satisfied.

4
Casas’s wholly owned law firm was a named defendant in the action,
but Casas is the only party to the Stipulated Settlement and the only
appellant. Thus, our references to defendants are solely to Casas.

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 “The settlement sum of $250,000 shall be paid as follows: 1)
$25,000 concurrent with the signing of the settlement documents,
including the Stipulated Judgment and the Promissory Note and
Deed of Trust; 2) an additional $55,000 shall be paid on or before
May 31, 2018; and the balance of $170,000 shall be payable at the
rate of $6,000 a month commencing on July 1, 2018 and continue
on the 1st day of each month thereafter until the entire balance is
paid in full. In addition, defendant[] shall execute a stipulated
5
judgment in the amount of $433,275[ ] which judgment shall not
be filed until defendant[] default[s] on the payment terms of this
[Stipulated Settlement]. Finally, this obligation shall be secured
by a promissory note and deed of trust on defendant’s real
property located at 2013 West Cleveland Ave., Montebello, CA
. . . . In the event there is insufficient equity in this property then
another property of defendant’s shall be used in place of this
property. Defendant’s spouse must execute both the promissory
note and deed of trust. Other than what is set forth above each

5
The Stipulated Settlement does not identify the genesis for the
unusually specific sum of $433,275 in the Stipulated Judgment to be filed in
the event of Casas’s default. According to a declaration filed by Elliott in
support of plaintiffs’ section 664.6 motion, this sum “represents the
undisputed amount of damages [Thompson and Pompa] suffered due to the
malpractice of . . . Casas in drafting the trust for Elsie Gomez which did not
allow [Thompson and Pompa] to inherit the [Cesar Chavez Property] when
[Gomez] died.” Casas did not dispute this representation.

8
 party shall bear their own costs and fees. In the event defendant
dies prior to making all of the payments due under this
agreement, plaintiffs agree to forego foreclosure for 90 days to
allow defendant’s spouse to pay off the balance due under the
settlement agreement.
“Defendant[] agree[s] to dismiss his petition with prejudice filed in
the LASC re Estate of Elsie Gomez, case number 18STPB00747.
“Counsel for plaintiffs shall prepare the written settlement
documents and provide them to the defendant[] on or before April
27, 2018.”
The Stipulated Settlement contains signature lines for and was
signed by Thompson, Pompa and Casas.

The Litigants Begin—Then Casas Ceases—to Perform Under the
Stipulated Agreement

According to Elliott’s declaration in support of the section 664.6
motion, on April 20, 2018 (two days after the mediation), Casas filed
and served on plaintiffs a “Request that he filed with the Los Angeles
Superior Court to dismiss with prejudice the probate petition that he
filed in the Los Angeles Superior Court [action] regarding the Estate of
6
Elsie Gomez, case number 18STPB00747].

6
Casas claimed to have asked that his petition be “denied with
prejudice,” but it is unclear when or whether his petition was dismissed. In a

9
 Thompson and Pompa also began to fulfill their obligations under
the Stipulated Settlement. On April 25, 2018, Elliott sent Casas an
email stating:
“Pursuant to the settlement agreement reached in this matter,
[Elliott had] prepared and attached for [Casas’s] review and
approval the following documents:
“1. Settlement Agreement and Mutual Release
“2. Secured Promissory Note
“3. Deed of Trust
“4. Written Guaranty [to be signed] by Elizabeth Casas [Casas’s
wife]
“5. Stipulation For Entry of Judgment and Judgment.”
Elliott requested that Casas review the documents and contact
him with any questions about or proposed changes.
By a May 11, 2018 letter Casas informed Elliott that his wife
refused to sign a promissory note and deed of trust. Casas said he
“regret[ted] being unable to convince [his] wife to cooperate” but, in
light of her refusal to do so, Casas “[could not] sign the Stipulated
Judgment.” He requested an extension of time to respond to the
complaint.

May 25, 2018 letter to Elliott, Casas stated that, at a hearing on May 1, 2018,
the court had continued a hearing regarding Casas’s petition matter to July
31, 2018, for reasons not relevant here.

10
 Elliott responded a week later and informed Casas that, because
his wife refused to sign the promissory note and deed of trust, plaintiffs
had chosen to forgo that security, and had “removed the promissory
note and deed of trust from the settlement documents.” Elliott attached
for Casas’s review and signature only a revised Settlement/Release
Agreement, and Stipulation for Entry of Judgment. Elliott asked Casas
to execute and return the documents “as soon as possible, along with
the payments required by the April 18, 2018 settlement agreement.”
The modified settlement documents eliminated a signature line for
Casas’s spouse as well as the requirement that Casas provide real
property as security for the settlement.
On May 25, 2018, Casas responded to Elliott informing him again
he had decided he could not sign the settlement documents or
Stipulated Judgment because his wife, who did not participate in the
mediation, was “a necessary party to the [Settlement] Agreement
[which] required her to sign a Promissory Note and Deed of Trust.”
However, Casas’s wife was advised by an unidentified probate attorney
not to sign those documents. Casas opined that his wife’s execution of
the promissory note and deed of trust was an “essential condition” of the
settlement agreement because he alone could not encumber community
property. Casas observed that it was plaintiffs who had insisted on this
“essential” condition to secure the settlement, and they were not now
free unilaterally to change their mind and “say [they] no longer
require[d] security for payment.” Casas also stated that “[p]ursuant to
the Agreement” he had requested the trial court deny his petition with
11
prejudice and intended to continue to do so, because Thompson’s
probate petition had priority.
Elliott responded on June 6, 2018, informing Casas that his wife’s
“execution of a promissory note and deed of trust [was] not a condition
precedent to the settlement payments that [Casas] agreed to make
when [he] signed the written [Stipulated Settlement],” and the fact that
Casas’s wife would not sign those documents did “not abrogate or
excuse [Casas’s] obligation to make the required settlement payments.”
Elliott informed Casas that, “if [plaintiffs did] not receive the initial
settlement payments . . . due pursuant to the [Stipulated Settlement] by
. . . June 8, 2018, along with an executed stipulation for entry of
judgment, [plaintiffs] would be forced to file” a section 664.6 motion “to
enforce the settlement.”
Casas responded on June 11, 2018, informing Elliot he had no
intention to make either the $25,000 or $55,000 payments. He enclosed
a redacted copy of the April 18, 2018 Stipulated Settlement in which he
acknowledged his obligation to pay $80,000 to plaintiffs, but eliminated
his duty to pay the entire $250,000 and to provide a promissory note
and deed of trust as security. Casas “welcome[d]” plaintiffs to use his
redacted document in conjunction with their section 664.6 motion.
However, Casas opined that plaintiffs’ motion was unlikely to prevail
because the requirement for a promissory note and deed of trust
executed by both Casas and his wife was an essential condition of the
Stipulation.

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Plaintiffs Successfully Move to Enforce the Judgment
On June 14, 2018, Thompson and Pompa filed an ex parte
application to schedule a hearing on their section 664.6 motion to
enforce the settlement. (§ 664.6.) At a hearing on that application
(attended by Casas and Elliott), the trial court denied plaintiffs’ ex
parte relief. Instead, the court directed plaintiffs to submit a proposed
judgment accompanied by a supporting declaration, which the court
would “hold . . . for 15 days for any objections from” Casas.
On June 22, 2018, plaintiffs lodged a request seeking entry of the
proposed stipulated judgment of $433,275 against Casas, pursuant to
the terms of the Stipulated Settlement. Casas opposed the motion on
the ground that no judgment could be entered against him because his
wife’s execution of a promissory note and deed of trust was a necessary
precondition to the parties’ settlement, and that condition had not been
and could not be satisfied. Accordingly, Casas claimed none of his
payment obligations had become due and he was not in default. On
August 3, 2018, the trial court entered judgment of $433,275 against
Casas, based on the parties’ April 18, 2018 Stipulated Settlement. On
October 4, 2018, Casas filed a timely notice of appeal from that
judgment.

Casas Moves to Vacate the Judgment While His Appeal is Pending
On December 31, 2018, after initiating the instant appeal, Casas
moved to vacate the judgment. (§ 473, subd. (d).) On March 6, 2019,
the trial court denied the motion, concluding it lacked jurisdiction to
13
consider the motion in light of the pending appeal because the judgment
was “not void on its face.” On May 3, 2019, Casas filed an appeal from
7
the order denying his motion to vacate.

DISCUSSION
The Trial Court Did Not Err in Entering the Stipulated Judgment After
Casas’s Default as to the Settlement Agreement

Casas contends the trial court erroneously entered judgment
against him under section 664.6, based on the written April 18, 2018
Stipulated Settlement. He maintains that agreement was not valid
because his wife, who was a necessary party to any settlement
agreement, never signed such an agreement. He is mistaken.

A. Governing Legal Principles and the Standard of Review
Section 664.6 provides a summary procedure for entry of judgment
specifically enforcing a settlement agreement without the need for a
new lawsuit. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911
(Assemi); Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793, 809 (Weddington).) A trial court may grant a motion requesting
entry of judgment premised on a settlement agreement in pending
litigation if the litigants “stipulate, in a writing signed by the parties

7
We have consolidated the appeals.

14
outside the presence of the court . . . for settlement of the case, or part
thereof, . . . pursuant to the terms of the settlement.” (§ 664.6.)
It has long been the rule that the court may proceed under section
664.6 “even when issues relating to the binding nature or terms of the
settlement are in dispute, because, in ruling upon the motion, the trial
court is empowered to resolve these disputed issues and ultimately
determine whether the parties reached a binding mutual accord as to
the material terms.” (Assemi, supra, 7 Cal.4th at p. 905.) In making its
factual determinations on a section 664.6 motion, the trial court may
consider oral evidence or declarations of the parties and their counsel.
(Id. at p. 911; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182
(Hines).)
In ruling on a section 664.6 motion, the trial court has authority to
interpret both the express and implied terms of a settlement
agreement. (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884,
889; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.) “The power of the
trial court under Code of Civil Procedure section 664.6, however, is
extremely limited. ‘Although a judge hearing a section 664.6 motion
may receive evidence, determine disputed facts, and enter the terms of
a settlement agreement as a judgment [citations], nothing in section
664.6 authorizes a judge to create the material terms of a settlement, as
opposed to deciding what terms the parties themselves have previously
agreed upon.’ [Citation.] . . . [¶] A settlement agreement is simply a
contract, . . . [and] [t]he court is powerless to impose on the parties more
restrictive or less restrictive or different terms than those contained in
15
their settlement agreement.” (Hernandez v. Board of Education (2004)
126 Cal.App.4th 1161, 1176; see Terry v. Conlan (2005) 131 Cal.App.4th
1445, 1459 [court erred in granting section 664.6 motion where record
demonstrated no meeting of minds concerning material terms of
settlement].) Before judgment can be entered under section 664.6, two
key prerequisites must be satisfied. (Weddington, supra, 60
Cal.App.4th at p. 797.) “First, there must be contract formation. The
litigants must first agree to the material terms of a settlement contract
before a judgment can be entered ‘pursuant to the terms of the
settlement.’ If no meeting of the minds has occurred on the material
terms of a contract, basic contract law provides that no contract
formation has occurred. If no contract formation has occurred, there is
no settlement agreement to enforce.” (Ibid.) “Second, there must be a
‘writing signed by the parties’ that contains the material terms.” (Ibid.)
“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.’”
(Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; accord, Hines,
supra, 167 Cal.App.4th at p. 1182.) We review the trial court’s legal
conclusions de novo. (Weddington, supra, 60 Cal.App.4th at p. 815.) In
determining whether substantial evidence exists, our review “begins
and ends with the determination as to whether, on the entire record,
there is substantial evidence, contradicted or uncontradicted, which will
support the determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d
870, 873–874, italics omitted.)
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 B. The Absence of Mrs. Casas’s Signature Does Not Impact the
Enforceability of the Parties’ Settlement

Casas contends the trial court erred in granting plaintiffs’ motion
for entry of judgment because his wife—a necessary party to the
settlement agreement—did not sign that agreement. Casas misreads
the statute. That Casas’s wife never signed the settlement agreement
is of no consequence. She was not a party to this action. Plaintiffs’
motion for entry of judgment did not seek to enforce the settlement
against Mrs. Casas, and her signature was not required. (Harris v.
Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 305 [section 664.6
only “require[s] the signatures of the parties seeking to enforce the
agreement under section 664.6 and against whom the agreement is
sought to be enforced”].) The statute does not refer to “parties to the
settlement agreement;” it refers to “parties to [the] pending litigation.”
(§ 664.6.) Here, only Casas and plaintiffs were parties to the pending
litigation and the Stipulated Settlement, signed by each party to the
pending litigation, met the requirements for entry of judgment under
section 664.6.

C. The Parties’ Written Agreement Containing Material Settlement
Terms Demonstrates Their Intent to be Bound

As noted above, the Stipulated Settlement begins with the
following words: “This settlement document is intended by the parties to
be binding and enforceable in court . . . by motion pursuant to C.C.P.
§ 664.6 and Evidence Code § 1123.” (Italics added.) The plain meaning
17
of this language is that the litigants intended to be bound by the terms
of the Stipulated Settlement reached during mediation. That
Stipulation contains no language, nor has Casas presented any extrinsic
evidence indicating, that the Stipulated Settlement was not intended to
embody a binding and enforceable settlement agreement.

D. Casas Failed to Perform His Obligations Under the Settlement
Agreement

Casas is correct that the Stipulated Settlement authorizes a
motion for enforcement only upon a party’s failure to comply with the
terms of the Stipulated Settlement. To obtain a judgment under section
664.6, Thompson and Pompa had the burden to prove a breach
occurred. In his declaration in support of plaintiffs’ motion, Elliott
presented evidence that Casas breached the agreement by failing to pay
the first two payments totaling $80,000 of the total $250,000 owed. The
court implicitly found Casas breached the agreement when it entered
the stipulated judgment the parties explicitly had agreed would only be
triggered and eligible for entry upon Casas’s default.
The requirements of section 664.6 were satisfied. The trial court
did not create material terms of the parties’ settlement. It ordered only
that the settlement be enforced pursuant to terms explicitly
memorialized in the executed Stipulated Settlement.

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 E. Casas’s Arguments Lack Merit
1. It Was Not Necessary for Mrs. Casas to Sign a Promissory Note
and Deed of Trust to Make the Settlement Agreement Binding

Casas’s wrongly contends that the terms of the Stipulation
required his wife to become a co-obligor for the entire settlement
amount.
The Stipulated Settlement requires that Casas secure his
settlement payments by providing a jointly executed promissory note
and deed of trust on real property co-owned with his wife.
Nevertheless, Mrs. Casas’s signature on final settlement documents
anticipated by the Stipulated Settlement was not necessary to bind
Casas to that agreement. Casas conflates the notion of a necessary
party to a settlement agreement with the provision of additional
security in the form of a promissory note and deed of trust signed by
him and his wife. However, that security—which benefitted only
plaintiffs—was merely part of the consideration Casas agreed to provide
in exchange for plaintiffs’ agreement to end their lawsuit.
The authorities on which Casas relies do not support his
contention. In Sully-Miller Contracting Co. v. Gledson/Cashman
Construction, Inc. (2002) 103 Cal.App.4th 30, 37, section 664.6 was
found inapplicable because the defendants failed to execute a settlement
agreement they sought to enforce. Here, all parties to the litigation
signed the Stipulated Settlement. Further, the court in Anthony
Macaroni Co. v. Nunziato (1935) 5 Cal.App.2d 588 (Anthony Macaroni),
relied on the rule that, when “an instrument has been executed by only
19
a portion of the parties between whom it purports to be made it cannot
be enforced against those who have executed it.” (Id. at p. 590, italics
added.)
Again, the Stipulated Settlement does not purport to be made
between anyone other than plaintiffs, on one hand, and Casas on the
other. Indeed, the Stipulated Settlement explicitly states that the
parties agreed to finally resolve the litigation: “It is hereby stipulated
by and between the parties . . . that the above-referenced case has been
settled.” (Italics added.) The reference to Casas’s spouse in the
Stipulated Settlement appears only as an “addition[al]” requirement
that Casas’s wife execute certain documents. Casas stood to gain
nothing if his wife agreed to encumber community property. Indeed,
Casas acknowledges the provision requiring a promissory note and deed
of trust was intended solely to benefit plaintiffs, who “required the
execution of the Promissory Note and Deed of Trust” because they
“wanted security for payment . . . [under] the [Settlement] Agreement.”
(Italics added.) Thompson and Pompa reasonably sought this
additional security to allay concerns their former attorney would
compound their injuries by failing to make settlement payments.
However, Thompson and Pompa were free to waive a security
requirement intended solely for their benefit. (See Wind Dancer
Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78
[contractual terms may be waived by the party for whose benefit they
are made].) The signing of a promissory note and deed of trust by
Casas’s wife was not an “essential condition” of the Settlement
20
Agreement (a term never employed until Casas attempted to escape his
payment obligations).

2. Casas’s Obligation to Pay the Agreed Upon $250,000 Was
Independent of His Obligation to Provide Additional Security

Casas argues that the statute of frauds prevented him from
encumbering community property without his wife’s written consent.
True. However, this did not serve to eliminate Casas’s obligation to pay
the agreed upon settlement. The security provided for an obligation is
independent of the obligation itself. Plaintiffs’ decision to abandon the
security did not absolve Casas of his obligation to pay the $250,000.
We are not persuaded by Casas’s self-serving attempt to use the
parties’ post-mediation correspondence to show the Stipulated
8
Settlement was not binding. Casas’s own post-mediation conduct

8
Casas also points to plaintiffs’ decision not to file a notice of settlement
under California Rules of Court, rule 3.1385, to indicate the Stipulated
Settlement was not binding. But one need not file a notice of settlement to
enforce a valid settlement agreement: “When a dispute arises on whether a
binding settlement of a pending action has been reached, the party asserting
the settlement has several options. If applicable, the proponent may use the
summary procedures of a motion to enforce settlement under . . . section
664.6. . . . When the party asserting settlement prevails under section 664.6,
. . . the Legislature has specifically authorized the trial court to enter
judgment in accordance with the agreement. . . . [¶] In contrast, the Judicial
Council formulated California Rules of Court, rule 3.1385 as a case
management tool for delay reduction, designed specifically to ‘assist courts in
identifying inactive cases from the active cases that may require judicial

21
shows he understood he was bound by the Stipulated Settlement. (See
Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 264 [“‘“conduct of
the parties after execution of the contract and before any controversy
has arisen as to its effect affords the most reliable evidence of the
parties’ intentions”’”].) Two days after the mediation, Casas began
taking steps to satisfy his obligation under the Stipulated Settlement to
dismiss his own litigation regarding the Gomez estate. Casas offers no
explanation why he would take such action if he doubted the existence
of a binding agreement. Moreover, although Casas relies on his request
for an extension to respond to the complaint to show otherwise, his
extension request was made four weeks after the mediation, and after
Casas told Elliott he had no intention to sign the final settlement
documents.

3. Casas Defaulted on His Obligations Under the Settlement
Agreement

Casas maintains the trial court erred in entering the stipulated
judgment because he did not default on his obligation under the
Stipulated Settlement to pay the first installments of the $250,000, he
owed. Not so.

attention.’ [Citation.] Although effective as a case management tool, rule
3.1385 is not intended as a means to enforce settlements.” (Irvine v. Regents
of University of California (2007) 149 Cal.App.4th 994, 1000–1001, fn.
omitted.)

22
 That Settlement required Casas to “execute a stipulated judgment
in the amount of $433,275 which judgment [to] be filed [if] [Casas]
default[ed] on the payment terms of [the Stipulated Settlement].” The
Stipulated Settlement was set up to enable Casas to pay the majority of
the $250,000 in monthly installments. Under that agreement his
obligation to begin making payments arose no later than May 31, 2018.
Only Casas’s initial $25,000 payment was linked to the parties’
concurrent execution of formal post-mediation settlement documents.
The Stipulated Settlement contains no condition precedent to Casas’s
obligation to make a $55,000 payment by May 31, 2018 or to begin
making monthly $6,000 payments by July 1, 2018, until the entire
$250,000 was satisfied. Thus, even if Casas’s duty to make the initial
$25,000 payment was linked to the parties’ execution of additional
documents, it did not excuse his obligation to make any other scheduled
payment. Casas defaulted on the parties’ agreement by failing to make
(at least) the $55,000 payment on May 31, 2018, and triggered
plaintiffs’ ability to move to seek entry of the stipulated judgment under
9
section 664.6.

9
Casas has never argued the stipulated judgment constitutes an
unlawful liquidated damages award. Indeed, he concedes it is enforceable in
the event of his default. Casas made no attempt to contradict Elliott’s
assertion that the amount of the Stipulated Judgment represented the actual
damages plaintiffs suffered due to Casas’s malpractice.

23
II. The Trial Court Properly Denied Casas’s Motion to Vacate Judgment
A. Once an Appeal Has Been Perfected, the Trial Court May Grant
a Motion to Vacate Only as to a Facially Void Judgment

Casas filed an appeal from the August 2018 judgment. Once an
appeal is perfected, further trial court proceedings are automatically
stayed as to matters embraced in or affected by a judgment appealed
from. (§ 916.) This automatic stay is intended “‘to protect the appellate
court’s jurisdiction by preserving the status quo until the appeal is
decided. [It] prevents the trial court from rendering an appeal futile by
altering the appealed judgment . . . by conducting other proceedings
that may affect it.’” (Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 189.) A matter is “embraced in” or “affected by” an
appealed judgment if the purpose of the appeal would be frustrated by
further trial court proceedings on that matter. As to such matters, the
trial court’s power to enforce, vacate or modify an appealed judgment is
suspended while the appeal is pending. (Id. at pp. 189–190.)
A limited exception to this rule exists if the judgment or order
appealed from is void on its face, i.e., the defect appears on the face of
the judgment or otherwise from the record itself. (Lovret v. Seyfarth
(1972) 22 Cal.App.3d 841, 854 (Lovret) [“‘An appeal will not prevent the
court from at any time lopping off what has been termed a dead limb on
the judicial tree—a void order’”]; Dill v. Berquist Construction Co.
(1994) 24 Cal.App.4th 1426, 1441 [“‘A judgment or order is said to be
void on its face when the invalidity is apparent upon an inspection of
the judgment-roll’”]; Trackman v. Kenney (2010) 187 Cal.App.4th 175,
24
181 [the inquiry “does not hinge on evidence: A void judgment’s
invalidity appears on the face of the record”].) We independently review
the legal question of whether a judgment is void on its face. (Calvert v.
10
Al Binali (2018) 29 Cal.App.5th 954, 961.)

B. The Judgment Is Not Void on Its Face and the Trial Court
Properly Concluded It Lacked Jurisdiction to Vacate It

Casas contends no further record is necessary here because the
invalidity of the judgment is apparent from an inspection of the
judgment roll or record without consideration of extrinsic evidence. We
disagree.
An order or judgment is considered void on its face “only when the
invalidity is apparent from an inspection of the judgment roll or court
record without consideration of extrinsic evidence.” (Pittman v. Beck
Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) The judgment

10
Again, Casas is not assisted by the authorities on which he relies to
avoid the rule of vacatur, as each of those cases involved a judgment void on
its face. (See Lovret, supra, 22 Cal.App.3d at p. 854 [affirming trial court
decision to vacate order being appealed because it is “settled law” that an
“order which is void on its face . . . may be set aside on motion at any time
after its entry by the court which rendered the judgment or made the order”];
People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 467 [judgment or
order void on its face, which requires only an inspection of the judgment roll
or record to demonstrate its invalidity, is subject to motion to set aside];
Macmillan Petroleum Corp. v. Griffin (1950) 99 Cal.App.2d 523, 529 [where
record showed that successor company lacked the capacity to sue at the time
the order appealed from was made, the order could be vacated as void].)

25
against Casas is not void on its face. The record shows the court had
authority to enter it under section 664.6, pursuant to the express terms
of the Stipulated Agreement signed by all litigants which provided for
entry of judgment in the event of Casas’s default. Casas defaulted
when he failed to make the May 31, 2018 payment, affirmatively
declared his refusal to make any payment, and failed to cure the default
despite being given an opportunity to do so. The terms of the parties’
settlement were sufficiently definite to enable the court to determine
whether there was a breach. (See Weddington, supra, 60 Cal.App.4th at
pp. 810–812.)
Casas acknowledges the trial court had jurisdiction to enter
judgment. He argues, however, that the court lacked jurisdiction here
to enter judgment under section 664.6 because “the parties never
agreed to submit to the court’s jurisdiction to enter the judgment on
stipulation.” The record reflects otherwise. The Stipulated Settlement,
signed by all litigants, explicitly states it is “intended by the parties to
be binding and enforceable . . . by motion pursuant to [section] 664.6.”
We have rejected Casas’s claims there was no binding settlement
because Mrs. Casas did not sign the promissory note or deed of trust,
and she was a necessary party to the settlement. Plaintiffs sued Casas,
not his wife. Only Casas’s signature was necessary to create a binding
agreement. (See § 664.6 [requiring signatures of parties to the action
for a binding settlement]; see also Anthony Macaroni, supra, 5
Cal.App.2d at p. 590.)

26
 Casas points to the unremarkable fact that the settlement
documents sent to him after the mediation contain a signature line for
his wife, and state that “part of the consideration” to plaintiffs was her
agreement to sign the promissory note and deed of trust. At the
mediator’s direction, plaintiffs’ counsel drafted and forwarded to Casas
formal settlement documents a week after the parties agreed to settle.
Those documents were sent to Casas two weeks before he announced
his intention to renege because his wife refused to cooperate. Casas
ignores the fact that, after he informed plaintiffs’ counsel his wife would
not sign a promissory note or deed of trust, plaintiffs chose to forego
that security and Elliott sent new documents removing both the
security and signature lines for Casas’s spouse.
In sum, there is no merit to Casas’s assertion that the judgment
was void on its face. His wife was not a party to this action and her
consent was unnecessary to give effect to the Stipulated Settlement,
and Casas expressed his intent to default. There is no support for
Casas’s claim that plaintiffs’ alleged “nonperformance” (by choosing to
forgo the security and sending revised documents) discharged his
obligations under the settlement agreement. The judgment was not
void. As a result, the trial court lacked jurisdiction to vacate it, and
Casas’s motion to vacate was properly denied.
//
//

27
 DISPOSITION
The judgment is affirmed. Respondents shall recover costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.
We concur:

COLLINS, J.

CURREY, J.

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