Pollard v. Abramovic CA2/8

Filed 2/24/22 Pollard v. Abramovic CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FARLEY POLLARD et al., B309220

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC705748)
v.

NICHOLAS ABRAMOVIC et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Thomas D. Long, Judge. Affirmed.

The Kruger Law Firm and Jackie Rose Kruger for Plaintiffs
and Appellants.

Freeman Mathis & Gary, Daniel C. Walsh and Zachariah
E. Moura for Defendants and Respondents.
_________________________
 INTRODUCTION
Appellants Farley Pollard and Chelsea Pollard (appellants)
appeal from the judgment on the trial court’s order granting
summary judgment in favor of respondents Nicholas Abramovic
and Katja Grosch (respondents). On appeal, appellants argue:
1) the trial court’s ruling “assumed facts not in evidence as the
exhibits upon which [respondents] based its motion for summary
judgment were distorted and did not support their argument of
accord and satisfaction”; and 2) “the exhibits that were not
distorted do not support the granting of [respondents’] Motion for
Summary Judgment as a matter of law.”
We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
A. Civil Complaint
On May 10, 2018, appellants filed a civil complaint against
respondents jointly and severally for damages arising out of an
automobile accident.
The complaint alleged that on February 9, 2017,
respondent Abramovic drove through a red light and collided
with appellants’ vehicle, injuring them. At the time, Abramovic
was allegedly under the influence of alcohol. Respondent Grosch
was the passenger in and owner of the vehicle Abramovic drove.
Abramovic was subsequently arrested for driving under the
influence. Appellants alleged they suffered physical, mental, and
emotional injuries; wage loss; loss of earning capacity; and
hospital and medical expenses as a result of the accident. They
sought general and special damages according to proof.
Respondents’ answers to the complaint denied all
allegations and asserted 10 affirmative defenses, including that

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appellants’ claims “are barred in whole, or in part, by the doctrine
of Accord and Satisfaction.”
B. Motion for Summary Judgment
On June 19, 2019, respondents moved for summary
judgment on the ground that a settlement was entered into by
the parties by virtue of an accord and satisfaction under Uniform
Commercial Code section 3311, subdivision (a). Respondents
argued “no triable issue of material fact exists and [they are]
entitled to summary judgment as a matter of law in that a
settlement was entered into by the parties by virtue of an accord
and satisfaction, and that [appellants] failed and refused . . . to
dismiss their complaint.”
In support of the motion, respondents filed the declaration
of their counsel Dee Bartholomew, which provided:
On July 31, 2018, GEICO issued two checks: 1) Check
No. 198604009 in the amount of $15,000 made payable to “Law
Office of Jackie Rose Kruger and Farley Pollard”; and 2) Check
No. 198604969 in the amount of $15,000 made payable to “Law
Office of Jackie Rose Kruger and Chelsea Pollard.” Appellants
(the Pollards) were represented by Kruger and her law firm. On
August 3, 2018, GEICO mailed two proposed releases and the two
checks to Kruger’s Law Firm. The August 3, 2018 letter and
release specified the check payments were “for full and final
settlement” of the claims. The letter further requested that
appellants “forward a conformed copy of the dismissal with
prejudice” and to hold the checks “in escrow” and to not disburse
the funds “until the enclosed release is signed by [appellants] and
returned” to GEICO. On August 17, 2018, the two checks “were
cashed.”

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 The two checks “conspicuously state on the front: ‘In full &
final settlement of any and all claims. Each side to bear their
own costs.’ ” The checks “were endorsed on the back by the
Kruger Law Firm.” None of the words on the checks were crossed
out or altered by appellants or their attorney Kruger. The money
“has never been returned to GEICO.” Because appellants and/or
their attorney “cashed the two settlement checks and retained
the funds, amounting to an accord and satisfaction,” and because
respondents pled the affirmative defense of accord and
satisfaction in their answers, respondents requested summary
judgment in their favor.
Attached to the motion and declaration as exhibits were
copies of the two checks, the letter from GEICO to Kruger Law
Firm dated August 3, 2018 with the proposed releases, and a
letter of representation to GEICO from Kruger’s Law Firm
confirming representation of appellants.
Appellants failed to timely file opposition to the motion for
summary judgment. The trial court continued the hearing on the
motion to November 13, 2019, and ordered appellants to file
opposition papers at least two weeks before the hearing.
As of November 13, 2019, appellants again had failed to file
opposition. The trial court granted the motion, and found
respondents “adequately show, in their moving papers, that their
insurance company engaged in settlement negotiations with
[appellants] after the accident that forms the basis of this case,
and ultimately settled the claims for the total amount of $15,000
to each of the two [appellants]. [Respondents] show that they
actually paid the money per the claims.” The court’s ruling
provided: Respondents “met their moving burden to show they
are entitled to judgment as a matter of law” and appellants

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“failed to meet their burden to raise a triable issue of material
fact.”
C. Appellants’ Motion for Reconsideration
On November 27, 2019, appellants filed a motion for
reconsideration of the court’s order granting summary judgment.
Appellants asked the court to reconsider its November 13, 2019
order because appellants “were never given notice of the ruling
from the initial hearing for [the] September 19, 2019 motion for
summary judgment hearing” and “have new information and
evidence that could not be provided to the Court.”
On January 22, 2020, respondents filed their opposition to
the motion for reconsideration, which included declarations of
their counsel and copies of the two checks, each for $15,000. The
checks were endorsed by the Kruger Law Firm and deposited on
August 17, 2018.
On February 4, 2020, the trial court granted appellants’
motion for reconsideration because of the court’s mistake in
calendaring the November 13, 2019 date. The court set March 4,
2020 as the hearing date for the summary judgment motion and
ordered appellants to file their opposition at least two weeks
before the hearing.
D. Appellants’ Opposition to Summary Judgment
On February 19, 2020, appellants filed their opposition to
the motion. They argued there was no accord and satisfaction,
and that respondents “sent the checks even though there was
never an agreement between the parties, establishing that [they
were] not sent in good faith. Alternatively, even if the checks
were mailed and deposited by [appellants], it was done so in the

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ordinary course of business inadvertently and without knowledge
of the notation.” (Italics added.)
In support of their opposition, appellants included a
declaration of their attorney Kruger. She declared that the
checks “may have been inadvertently deposited in the ordinary
course of [her] office’s day without knowledge of the notation on
the checks.” The declaration also stated her office “did not
receive a release with the checks that were purportedly sent.”
She had “not distributed the checks” to appellants, as they “have
not informed [Kruger] that they agreed to settle the claim for the
amounts listed on the checks.” Finally, she stated she “do[es] not
have [the] checks that are endorsed by [appellants].”
Appellants also included their own declarations that they
had never agreed to settle their claims; they had never received
any of the funds; they had neither received nor executed any
releases; and they had received no notice that the checks had
been sent.
E. Trial Court’s Ruling
On March 13, 2020, the trial court “made clear that it is
considering certain enumerated facts to be undisputed for
purposes of this motion.” The court found “the parties did not
have an explicit agreement to resolve their claims prior to receipt
of the settlement checks, and [appellants] did not execute the
release agreement sent with the checks. [Respondents] mailed
the checks for policy limits with a proposed release agreement,
and [appellants’] attorney deposited the checks into the client
trust account. The checks bear a notation that they are for ‘full
and final’ payment of all claims.”

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 The trial court ordered the parties to brief the application
of Civil Code section 1526 and Uniform Commercial Code section
3311 and continued the hearing to September 15, 2020.
At the September 15, 2020 hearing, the trial court granted
respondents’ motion for summary judgment as to all causes of
action. The court found Civil Code section 1526 inapplicable and
that Uniform Commercial Code section 3311 governed the issue.
In granting the motion, the court found appellants “have not, to
date, returned the money received from the checks.” It further
found: Appellants “now contend[] that some of these facts are
disputed, despite not having disputed them at prior hearings.
The court is not convinced there is a dispute, except perhaps as to
whether [appellants] received a release with the checks. That
dispute, however, is not material. The release was not signed.
The accord and satisfaction arises out of the negotiation of the
checks which made payment for ‘any and all claims’ asserted in
the lawsuit.” The court noted the checks were “for the full policy
limits on [respondents’] policy, which is a very strong factor in
favor of a showing of good faith.”
On October 5, 2020, judgment was entered in favor of
respondents. This appeal followed.
DISCUSSION
Appellants contend the trial court erred in granting
summary judgment because there are triable issues of material
fact. Appellants argue the record does not contain substantial

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evidence of the existence of an accord and satisfaction between
the parties. (Cal. U. Com. Code,1 § 3311.)
Respondents argue appellants fail “to point to any evidence
submitted to show a triable issue [of material fact exists], or to
show that there is an alternative reasonable interpretation of the
established facts, that defeats the prima facie case.”
We agree with respondents.
A. Standard of Review
We review an appeal from the grant of a motion for
summary judgment de novo; because “a summary judgment
motion raises only questions of law regarding the construction
and effect of the supporting and opposing papers, we
independently review them on appeal . . . .” (AARTS Productions,
Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064
(AARTS).) We examine the record to determine whether triable
issues of material fact exist and “consider[] all the evidence set
forth in the moving and opposition papers except that to which
objections were made and sustained.” (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 65–66.)
The moving party “bears the burden of showing the court
that the plaintiff ‘has not established, and cannot reasonably
expect to establish, a prima facie case.’ ” (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) The burden then shifts
to the plaintiff to show the existence of a triable issue; to meet
that burden, the plaintiff cannot “rely on assertions that are
‘conclusory, argumentative[,] or based on conjecture and

1 Undesignated statutory references are to the California
Uniform Commercial Code.

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speculation,’ but rather were required to ‘make an independent
showing by a proper declaration or by reference to a . . . discovery
product that there is sufficient proof of the matters alleged to
raise a triable question of fact . . . .’ ” (Roberts v. Assurance Co. of
America (2008) 163 Cal.App.4th 1398, 1404; see Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
Thus, we must identify the issues framed by the pleadings,
determine whether the moving party has negated the opponent’s
claims, and determine whether the opposition has demonstrated
the existence of a triable, material factual issue. (AARTS, supra,
179 Cal.App.3d at pp. 1064–1065.) We will not, however,
entertain new factual allegations or arguments on appeal that
were not raised before the trial court. “ ‘[U]nless they were
factually presented, fully developed[,] and argued to the trial
court, potential theories which could theoretically create “triable
issues of material fact” may not be raised or considered on
appeal.’ ” (Peart v. Ferro (2004) 119 Cal.App.4th 60, 70.) A new
theory may be presented for the first time on appeal where it
“involves only a legal question determinable from facts which not
only are uncontroverted in the record, but which could not be
altered by the presentation of additional evidence.” (In re
Marriage of Priem (2013) 214 Cal.App.4th 505, 510–511, internal
quotation marks omitted.)
B. Applicable Law
The requirements for an accord and satisfaction based on
acceptance of a negotiable instrument are governed by section
3311. (Bellows v. Bellows (2011) 196 Cal.App.4th 505, 510.)
Section 3311 provides, in relevant part: “(a) If a person against
whom a claim is asserted proves that (1) that person in good faith
tendered an instrument to the claimant as full satisfaction of the

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claim, (2) the amount of the claim was unliquidated or subject to
a bona fide dispute, and (3) the claimant obtained payment of the
instrument, the following subdivisions apply. [¶] (b) [T]he claim
is discharged if the person against whom the claim is asserted
proves that the instrument or an accompanying written
communication contained a conspicuous statement to the effect
that the instrument was tendered as full satisfaction of the
claim” unless “(c)(2) The claimant . . . proves that within 90 days
after payment of the instrument, [he] tendered repayment of the
amount of the instrument to the person against whom the claim
is asserted.” (§ 3311, subds. (a), (b), & (c)(2).)
According to official code comment No. 4 on section 3311:
“Normally the statement required by subsection (b) is written on
the check. Thus, the canceled check can be used to prove the
statement as well as the fact that the claimant obtained payment
of the check. Subsection (b) requires a ‘conspicuous’ statement
that the instrument was tendered in full satisfaction of the claim.
. . . The statement is conspicuous if ‘it is so written that a
reasonable person against whom it is to operate ought to have
noticed it.’ If the claimant can reasonably be expected to examine
the check, almost any statement on the check should be noticed
and is therefore conspicuous.” (See Official Comments on
U. Com. Code, Deering’s Ann. Cal. U. Com. Code (2017 ed.) foll.
§ 3311, pp. 443–444.)
Whether an accord and satisfaction has been reached is a
question of fact. (Woolridge v. J.F.L. Electric, Inc. (2002)
96 Cal.App.4th Supp. 52, 57 (Woolridge); In re Marriage of
Thompson (1996) 41 Cal.App.4th 1049, 1059.) An accord and
satisfaction may be implied; whether a transaction constitutes an
accord and satisfaction depends on the intention of the parties as

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determined from the surrounding circumstances, including the
conduct and statements of the parties, and notations on the
instrument itself. (In re Marriage of Thompson, at
pp. 1058--1059.)
C. Analysis
To obtain an accord and satisfaction under section 3311, a
debtor must prove that: 1) the debtor in good faith tendered an
instrument to the claimant as full satisfaction of the claim; 2) the
amount of the claim was unliquidated or subject to a bona fide
dispute; and 3) the claimant obtained payment of the instrument.
(Lucky United Properties Investment, Inc. v. Lee (2010)
185 Cal.App.4th 125, 148.)
Appellants first contend the copies of the checks attached
as respondents’ exhibits are “distorted” and “have no recognizable
language” from which a reasonable person could discern that the
checks were intended as payment in full of the dispute between
the parties.
Appellants did not propound this argument in their
opposition to summary judgment nor was it set out in their
complaint. “Generally, the rules relating to the scope of appellate
review apply to appellate review of summary judgments.
[Citation.] An argument or theory will generally not be
considered if it is raised for the first time on appeal. [Citation.]
Specifically, in reviewing a summary judgment, the appellate
court must consider only those facts before the trial court,
disregarding any new allegations on appeal. [Citation.] Thus,
possible theories that were not fully developed or factually
presented to the trial court cannot create a ‘triable issue’ on
appeal.” (American Continental Ins. Co. v. C & Z Timber Co.
(1987) 195 Cal.App.3d 1271, 1281.) “A party is not permitted to

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change his position and adopt a new and different theory on
appeal. To permit him to do so would not only be unfair to the
trial court, but manifestly unjust to the opposing litigant.” (Ernst
v. Searle (1933) 218 Cal. 233, 240–241; see also Mattco Forge, Inc.
v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.)
“ ‘[U]nless they were factually presented, fully developed[,] and
argued to the trial court, potential theories which could
theoretically create “triable issues of material fact” may not be
raised or considered on appeal.’ ” (Peart v. Ferro, supra,
119 Cal.App.4th at p. 70.)
In addition, if appellants objected to evidence in support of
the motion for summary judgment, they should have submitted
their objections in writing. (See Cal. Rules of Court, rule 3.1354.)
The record includes no written objections to the checks. (See
id., (b).)
Accordingly, we do not exercise our discretion to entertain
appellants’ new argument. Were we to do so, we would find it a
non-issue. Although the copies of the two checks are slightly
distorted in one portion of the record, there are clear copies of the
two checks attached as exhibits to respondents’ January 22, 2020
opposition to appellants’ motion for reconsideration of order
granting summary judgment. The checks clearly and
conspicuously state on the front: “Full & final settlement of any
& all claims. Each side to bear their own costs.” The checks also
clearly show they were endorsed for deposit by the Kruger Law
Firm. The conspicuous language was not crossed out by
appellants or their attorney before deposit. The checks plainly
stated they were intended to settle the entire dispute.

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 Second, appellants argue there is no substantial evidence
that the two checks were tendered “in good faith.” In support,
they rely on and cite to Woolridge, where the settlement check
was found to have been tendered in good faith. In Woolridge,
Woolridge and the insurance adjuster reached an agreement on a
settlement figure during telephone discussions and, in reliance on
that agreement, a check payment for that settlement amount was
mailed to Woolridge. The court found the “check was tendered in
good faith.” (Woolridge, supra, 96 Cal.App.4th Supp. at p. 60.)
We note, however, Woolridge does not stand for the proposition
that evidence of oral discussions is the only way to calibrate good
faith in tendering a settlement check.
Specifically, official code comment No. 4 on section 3311
provides: “ ‘Good faith’ . . . is defined . . . as not only honesty in
fact, but the observance of reasonable commercial standards of
fair dealing. (See Official Comments on U. Com. Code, Deering’s
Ann. Cal. U. Com. Code, supra, foll. § 3311, pp. 443–444.) The
meaning of ‘fair dealing’ will depend upon the facts in the
particular case. For example, suppose an insurer tenders a check
in settlement of a claim for personal injury in an accident clearly
covered by the insurance policy. The claimant is necessitous and
the amount of the check is very small in relationship to the extent
of the injury and the amount recoverable under the policy. If the
trier of fact determines that the insurer was taking unfair
advantage of the claimant, an accord and satisfaction would not
result from payment of the check because of the absence of good
faith by the insurer in making the tender.” (Italics added.) Here,
respondents provided two checks for the full policy limits with a
statement that the checks were in full settlement of all claims.
This is a very strong factor showing good faith.

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 Appellants note “the checks were held in escrow without
acceptance by appellants as to the terms accompanied with the
checks in the letter and release.” Substantial evidence in the
record demonstrates otherwise. The conspicuous language on the
front of the two checks stating “full & final settlement of any &
all claims” was not crossed out by appellants or their attorney
prior to being deposited by Kruger Law Firm. Additionally, as of
the date of the order granting summary judgment, appellants
had not returned the funds to respondents, their counsel, or
GEICO, even though section 3311, subdivision (c)(2) provided
appellants with an out if they “tendered repayment of the amount
of the instrument” within 90 days after payment was made.”
(§ 3311, subd. (c)(2).) As the trial court found, it was the
negotiation of the checks expressly made in full settlement,
without a later return of the funds to respondents, that
constituted the accord and satisfaction. That appellants’ counsel
did not actually disperse the funds to her clients does not negate
the fact that the checks were, in fact, negotiated.
We conclude the record establishes substantial evidence of
an accord and satisfaction pursuant to section 3311 and the
absence of triable issues of material fact.

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 DISPOSITION
The judgment is affirmed. Respondents Nicholas
Abramovic and Katja Grosch are awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

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