Eitani v. Simayof CA1/2

Filed 5/3/22 Eitani v. Simayof CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

LISA KROGER EITANI,
Plaintiff and Respondent,
v. A159547
ADI SIMAYOF et al.,
(San Francisco County Super. Ct.
Defendants and Appellants. No. CGC-12519074)

Defendants Adi Simayof (Simayof) and Sarit Simayof-Cohen (Cohen)
appeal the trial court’s order entering judgment pursuant to Code of Civil
Procedure section 664.61 against each defendant, and various companies
associated with defendants, based on written settlement agreements which
Simayof and Cohen separately entered into with plaintiff Lisa Kroger Eitani.
Defendants argue that the evidence presented to the trial court was
insufficient to support entry of judgment against Simayof; that Cohen’s duty
to pay money to Eitani pursuant to the settlement agreement never arose;
that the settlement agreement between Eitani and Cohen was never intended
to involve entry of judgment against Cohen; and, if entry of judgment against

Further statutory references are to the Code of Civil Procedure unless
1

otherwise indicated.

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Cohen was proper, the trial court was required to reduce the amount of the
judgment to reflect payments Simayof made to Eitani. Simayof also attempts
to raise a new issue, which he did not raise in the trial court, namely, that he
and Eitani did not enter into a binding contract. Finding no error, we affirm.
BACKGROUND
A. Eitani Sues Simayof and Cohen for Breach of Contract
In 2008, Eitani, acting through her company Kroger Gems,
entered into a series of consignment agreements with SIMSF, Inc., a retail
jewelry company owned and operated by Simayof. Pursuant to the
consignment agreements, Eitani provided Simayof with loose diamonds
valued at approximately $462,000; Simayof agreed to pay for the diamonds
when he sold them or return the diamonds to Eitani. Cohen, an attorney
licensed to practice law in California, is Simayof’s sister. In 2010, Eitani
accepted post-dated checks for $170,000, executed by Cohen in her capacity
as chief executive officer of World of Charms (WOC), a Nevada corporation,
and provided additional diamonds to Simayof on consignment in reliance on
these checks. SIMSF, Inc. failed to either pay Eitani or return the diamonds
to her.
Eitani filed suit in the Superior Court for the City and County of
San Francisco on March 12, 2012, for conversion, fraud, breach of fiduciary
duty, common counts, and breach of contract against Simayof, as an
individual, and against the following businesses associated with Simayof:
SIMSF, Inc.; Simayof, Inc.; GISF, Inc.; and YDAF, Inc. (collectively, Simayof
defendants). Eitani also named Cohen, as an individual, and WOC as
defendants (collectively, WOC defendants). Eitani alleged that each of the
named defendants was the alter ego of the others.

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 B. Eitani Settles with the Simayof Defendants
On October 13, 2013, Eitani entered into a written settlement
agreement with the Simayof defendants entitled “Stipulation For Judgment”
(Simayof stipulation). Eitani agreed that she would not request entry of
judgment on the stipulation nor execute on the judgment provided the
Simayof defendants paid her $462,000 over nine years as follows:
(a) No payments due for the initial 18 months;
(b) Commencing April 4, 2015, six monthly payments of $2,500;
(c) Commencing October 4, 2015, 12 monthly payments of $3,500;
(d) Commencing October 4, 2016, 30 monthly payments of $5,400; and
(e) Commencing May 4, 2019, 42 monthly payments of $5,785.72 until
the balance was paid in full.
Eitani agreed to provide the Simayof defendants with written notice of
default. If the default was not cured within 10 days after written notice,
judgment “may be entered against [Simayof] Defendants for $462,000, less
credits for payments made, and a Writ of Execution may issue without notice
or hearing.” The parties agreed that “[t]his Stipulation contains the entire
agreement between the parties with regard to its subject matter,” and that it
could not be amended “except by a writing duly executed by the parties.” The
parties further agreed that the court shall retain jurisdiction to enforce the
terms of the settlement.
The Simayof stipulation allowed Simayof to request modification of the
payment terms annually under the following conditions:
“IT IS FURTHER AGREED that SIMAYOF may request a modification
of the payment amount and Plaintiff may agree to such modification upon a
verified showing of SIMAYOF’s financial difficulties, which proof shall
include any company owned or operated by SIMAYOF, or in which SIMAYOF
are [sic] an officer or holds a financial interest. Any such request can be

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made on an annual basis and shall be made no later than the September 1
preceding the date the payments are to begin.”
C. Eitani Settles with the WOC Defendants
On November 18, 2013, Eitani entered into a written settlement
agreement with the WOC defendants entitled “Stipulation.” The parties
agreed to the following terms:
“IT IS HEREBY STIPULATED that WOC will personally guarantee
payment by SIMAYOF in the amount of $135,000, and execute the attached
personal guarantee. Such guarantee shall remain in effect until Plaintiff
receives $200,000 from . . . SIMAYOF pursuant to a Stipulation for Judgment
entered into with SIMAYOF. Upon receipt and clearance of payment(s) in
the amount of $200,000, Plaintiff will file a dismissal with prejudice as to
WOC only.[2]
“IT IS HEREBY STIPULATED by and between Plaintiff and WOC . . .
that in the event of any default on the payments by SIMAYOF, not cured
within ten (10) days after written notice to WOC, WOC shall be obligated to
pay Plaintiff $135,000.00, less credit for payments made.”
The parties further agreed that: (1) the stipulation sets forth their
entire agreement; (2) the stipulation would not be filed with the court until
there was a default in performance; and (3) the court would retain
jurisdiction over the parties to enforce the stipulation until the stipulation
was fully performed.

2 Confusingly, the parties also agreed that Eitani would file a request to
dismiss the case against the WOC defendants without prejudice within 15
days of receiving the signed stipulation and personal guarantee. The timing
and method of dismissal is not an issue which has been raised on appeal.

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 D. History of Performance Pursuant to the Stipulations
i. Simayof Fails to Make the $2,500 Payment Due on
July 4, 2015
Simayof timely made the $2,500 payments to Eitani which were due on
April 4, 2015, May 4, 2015, and June 4, 2015. On July 6, 2015, Simayof told
Eitani’s attorney that he was experiencing temporary financial difficulties; he
asked for an immediate suspension of his obligation to make payments for
three months. Eitani’s attorney denied this request, and thereafter sent
written notice of default to defendants on July 9, 2015. The 10 days in which
to cure the default expired on July 19, 2015 without Simayof or Cohen taking
any steps to attempt to cure the default. Simayof renewed his request to
modify the payment plan on July 19, 2015. Eitani’s attorneys told Simayof
that if he submitted verified proof of his financial condition, as required by
the Simayof stipulation, they would review it. Simayof did not provide Eitani
with any financial documents in support of his request for modification prior
to the September 1, 2015 deadline.
ii. Eitani’s Initial Applications for Entry of Judgment
in 2015 and 2016 Are Denied
On October 14, 2015, Eitani submitted an ex parte application for entry
of judgment pursuant to the stipulations. The court denied the ex parte
application without prejudice to Eitani filing a noticed motion for entry of
judgment pursuant to section 664.6.
Eitani filed a noticed motion on March 7, 2016, seeking entry of
judgment against the Simayof defendants in the sum of $454,500, and
against the WOC defendants in the sum of $127,500. The court denied the
motion on May 5, 2016, finding that (1) Simayof’s right to request
modification of the payment schedule was a material term of the Simayof
stipulation; (2) Eitani had a duty to “act reasonably on Mr. Simayof’s request

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for modification of the payment schedule,” and her attorney’s emails
summarily denying Simayof’s request that the parties discuss modification of
the payment schedule were unreasonable; and (3) Eitani’s failure to
reasonably consider Simayof’s July 6, 2015 request for modification
“precludes her from establishing the required element of her claim for breach
of the stipulation that she performed all the conditions required by the
stipulation to be performed by her.” The court held that Cohen had no duty
to pay Eitani “until there is a determination that the payment obligations in
the [Simayof stipulation] have not been met[.]”
iii. Eitani and Simayof Negotiate Simayof’s Request to
Modify the Payment Schedule
On May 6, 2016, Simayof provided some financial information to
Eitani’s attorneys in an effort to substantiate his contention that he was
experiencing financial difficulties which warranted modification of the
payment schedule. Eitani’s attorneys asked Simayof to provide additional
information. In June 2016, Simayof asked to reduce his payments from the
$3,500 per month required by the Simayof stipulation to $500 per month
effective July 1, 2016. Simayof submitted additional financial records in
support of his request. On August 25, 2016, Eitani’s attorneys notified
Simayof that his financial data was still incomplete, and that the documents
they had reviewed did not support a modification to $500 per month.
One of Eitani’s attorneys met with Simayof on October 5, 2016; she
reviewed documents Simayof produced and questioned him about his
finances. Eitani thereafter agreed to accept Simayof’s offer to make
payments of $500 per month, but only on the condition that Simayof provide
a security interest in real properties owned by Simayof and Cohen in
exchange for the reduced payment plan. Simayof did not agree to provide the
security interest and did not remit payment of $500 or in any amount. The

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impasse between the parties continued through April of 2017, with Simayof
demanding that Eitani accept reduced payments of $500 per month and
Eitani declining to reduce the payments until Simayof verified his financial
data and/or provided a security interest in consideration of the payment
reduction.
iv. Eitani Renews Her Application for Entry of Judgment
in 2017
On March 24, 2017, Eitani filed a second noticed motion for entry of
judgment against the Simayof defendants and the WOC defendants. On
April 25, 2017, the court again denied the motion on the ground that Eitani
had not demonstrated that she reasonably considered Simayof’s modification
request. The court found that Eitani’s request for a security interest in real
property owned by Simayof and Cohen in connection with a payment
reduction “was unreasonable as a matter of law in the instant circumstance.”
In dictum, the court “suggested” that “it’s in [Simayof’s] best interest to
provide the financial documents and act in good faith in terms of doing that,
to make what payments you can make.”
v. Eitani Resumes Negotiations with Simayof Regarding
His Request to Modify the Payment Schedule
After the court denied Eitani’s second noticed motion to enter judgment
against defendants, Eitani’s attorneys and Simayof resumed negotiations
about whether the Simayof stipulation should be modified and, if so, on what
terms. Simayof began sending payments of $500 per month to Eitani’s
attorneys in May 2017. Simayof sent the checks despite being informed by
Eitani’s attorneys that Eitani would not agree to modify the payment
schedule “without a set payment proposal from you” and unless Simayof
provided complete, verified financial data that supported a reduction of
payments to $500 per month. Eitani’s attorneys explained to Simayof that a

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financial statement or an income and expense declaration signed under
penalty of perjury would satisfy their demand for verified financial data.
On September 5, 2017, Simayof informed Eitani’s attorneys: “As you
know, a modification agreement is already in place . . . . In October of 2016,
your client has agreed to a $500 a month payment structure modification.”
Eitani’s attorneys promptly responded: “[N]o agreement to modify your
obligations with respect to the October 2013 Settlement Agreement was ever
entered into. Our client never agreed to a $500 a month payment structure—
not in October of 2016 nor at any other time.” “In addition, while the $500
payments you have been sending recently have been received by our office,
they have been never cashed [sic] nor ‘applied’ as your email states.”
For the next 18 months, the negotiations continued in this vein:
Eitani’s attorneys repeatedly demanded signed copies of Simayof’s tax
returns and verified financial data, while Simayof reiterated that he had
already provided everything that Eitani’s attorneys had requested. Simayof
continued to insist that Eitani had agreed to accept $500 per month even
after Eitani’s attorneys returned Simayof’s uncashed checks to him on
October 5, 2017. During a face-to-face meeting with one of Eitani’s attorneys
on May 22, 2018, Simayof admitted that he was not able to provide wage
stubs or other documents verifying the amount of money he had recently
earned as a “consultant” for Cohen because Cohen had paid him in cash.
On March 29, 2019, Eitani’s attorneys informed Simayof that they
intended to file another motion to enter judgment on the Simayof stipulation.
For the next several months, the parties exchanged proposals to resolve their
dispute. In April 2019, Simayof offered $100,000, paid in monthly
installments of $8,000, in full settlement of what he owed Eitani. Eitani
counter-offered that she would accept $350,000 in full settlement of all issues

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between the parties or, alternatively, she would accept monthly payments of
$4,628.57 until the $462,000 was paid in full. The parties were unable to
reach an agreement.
E. The Trial Court Grants Eitani’s Motion to Enter Judgment
Against Defendants
Eitani filed her third motion seeking to enter judgment against
defendants on October 11, 2019. In the motion, Eitani painstakingly outlined
the chronology of the case and described the extensive negotiations between
Eitani and Simayof regarding modification of Simayof’s payment schedule
which had occurred since 2017.
In opposition, Simayof cited the two prior trial court rulings to support
his contention that Eitani had not acted reasonably in rejecting his request to
modify the payment schedule. Alternatively, Simayof argued that Eitani had
agreed to accept $500 per month because the financial data he provided
proved that $500 was all he could afford.3 Simayof also offered extrinsic
evidence in an attempt to demonstrate that Eitani had made assurances and
promises to him, which are not contained in the Simayof stipulation.4

At oral argument on the motion, Simayof appeared to relinquish the
3

argument that Eitani had agreed to modify the payments to $500 per month:
“The Court: There certainly has never been a written modification,
which is required by these agreements, that would modify the stipulation or
provide for any different payment provision.
“Cohen: Your Honor, you’re one hundred percent correct.”
4For example, Simayof claimed that he had shared his personal
financial data with Eitani and her attorneys during the 2013 settlement
negotiations, essentially putting them on notice that his financial condition
was precarious. He claimed to have discussed with Eitani in 2013 his
financial projections for a start-up he expected to generate income in the
future. Simayof also asserted that Eitani and her attorneys had verbally
represented that Eitani would agree to modify the payment to one he could

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 The motion was argued on November 22, 2019. The trial court
indicated that it was familiar with the voluminous record5 and was inclined
to adopt its tentative ruling to grant the motions. After hearing and
considering oral argument, the trial court granted the motion to enter
judgment on each stipulation. The trial court made the following factual
findings:
“The evidence indicates that Adi Simayof breached the stipulation for
entry of judgment by failing to make timely payments. Mr. Simayof failed to
provide Plaintiff with sufficient financial information to warrant a
modification of the payment plan to $500.00 per month. Evidence further
shows that Mr. Simayof did not properly document all of the funds he was
receiving. Entry of judgment against WOC is appropriate because
Mr. Sim[a]yof breached the stipulation and WOC agreed to guarantee
$135,000 in payments . . . WOC’s argument that it never received a notice of

afford, even though the Simayof stipulation states that Eitani’s duty is
simply to consider Simayof’s request for a modification.
In her reply, Eitani states that Simayof did not share financial
information during the 2013 settlement negotiations, nor was she aware from
any source that Simayof expected to generate income from a start-up
company. She maintained throughout the litigation that her obligation to
consider a payment modification arose only if Simayof complied with the
conditions set forth in the Simayof stipulation.
5 The trial court stated: “I have a mountain of paperwork that you all
have filed.” When Cohen cited to the rulings on the first and second motions
for judgment, the court replied: “I read them.” In rendering its oral decision
granting the motion, the court referenced the “considerable” amount of
evidence it had reviewed. Defendants’ accusation that the trial court
“completely ignore[d]” defendants’ evidence and argument is not supported by
the record. (See also Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183
(Hines) [appellants must affirmatively show that the trial court refused to
consider their arguments].)

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default fails. Eitani sent a notice of default to Ms. [Simayof]-Cohen on July 9,
2015, and February 17, 2017. While the letters are not expressly addressed
to World of Charms, Inc., Ms. [Simayof]-Cohen is an officer of that entity that
signed the stipulation and she is also its attorney.”
Judgment was entered against each defendant on November 22, 2019.
Defendants filed a timely notice of appeal on December 11, 2019.
DISCUSSION
I. Standard of Review
A. The Trial Court’s Factual Findings Must Be Affirmed if
Supported by Substantial Evidence
“If parties to pending litigation stipulate, in a writing signed by the
parties outside the presence of the court . . . for settlement of the case . . . the
court, upon motion, may enter judgment pursuant to the terms of the
settlement. If requested by the parties, the court may retain jurisdiction over
the parties to enforce the settlement until performance in full of the terms of
the settlement.” (§ 664.6.)
Section 664.6 “was enacted to provide a summary procedure for
specifically enforcing a settlement contract without the need for a new
lawsuit.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
809.) A trial judge hearing a motion pursuant to section 664.6 “ ‘may receive
evidence, determine disputed facts, and enter the terms of a settlement
agreement as a judgment . . . .’ ” (Osumi v. Sutton (2007) 151 Cal.App.4th
1355, 1360.) “A 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.” (Machado v.
Myers (2019) 39 Cal.App.5th 779, 790.) Legal questions, such as the proper
interpretation of section 664.6, or whether the granting of the motion
satisfied the strict requirements of the statute, are reviewed de novo. (J.B.B.

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Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984; Elnekave
v. Via Dolce Homeowners Assn. (2006) 142 Cal.App.4th 1193, 1198.)
B. It is Defendants’ Burden to Affirmatively Demonstrate Error
The judgments which are the subject of this appeal are presumed to be
correct and it is defendants’ burden to affirmatively demonstrate error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) In their opening brief,
Simayof and Cohen repeatedly demand that this court make factual
determinations,6 reweigh the evidence and reassess the credibility of
witnesses on appeal, functions that are exclusively within the province of the
trier of fact. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) “ ‘[T]he Court
of Appeal is not a second trier of fact.” (In re Marriage of Balcof (2006) 141
Cal.App.4th 1509, 1531.) “We do not retry cases on appeal and we do not
substitute our discretion for that of the trial court.” (FLIR Systems, Inc. v.
Parrish (2009) 174 Cal.App.4th 1270, 1276.)
“ ‘The rule is well established that a reviewing court must presume that
the record contains evidence to support every finding of fact, and an appellant
who contends that some particular finding is not supported is required to set
forth in his brief a summary of the material evidence upon that issue.’ ” (In
re Marriage of Fink (1979) 25 Cal.3d 877, 887) “We apply the substantial
evidence standard to the record as a whole. It has long been established that
an appellant must present in its brief all material evidence on the issue, not
just the evidence that supports its position, and failure to so state the

6 For example, the opening brief states: “Defendant Simayof is
respectfully asking this court to review the financials that were submitted for
review of the court under seal . . . . No reasonable person can conclude that
Defendant Simayof can afford [the payments suggested by Eitani].” Simayof
also argues a mixed issue of fact and law, which was not raised in the trial
court, namely, whether the Simayof stipulation is void or voidable because
the parties never had a “meeting of the minds” as to the modification clause.

12
evidence may be deemed a waiver of the substantial evidence challenge.”
(Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 621.)
Eitani asserts that defendants’ failure to provide an adequate record for
this court’s review, combined with their failure to accurately describe the
evidence in the record, should be deemed a waiver of the substantial evidence
argument. While we agree with Eitani “that [defendants] have ‘shirked’ their
responsibility to set forth all the evidence, failed to discuss or analyze the
contradictory evidence in their opening brief, and set forth only their version
of the evidence,” we nevertheless address the merits of Simayof and Cohens’
arguments below.
II. The Trial Court’s Decision to Enter Judgment Against Simayof is
Consistent with Section 664.6 and is Supported by Substantial
Evidence
A. Simayof’s Failure to Raise the Alleged Invalidity of the Simayof
Stipulation in Opposition to Eitani’s 2019 Motion to Enter
Judgement Precludes Him from Arguing This Issue on Appeal
Simayof correctly asserts that a settlement agreement is not valid or
enforceable unless the parties have agreed to all material terms. (Hines,
supra, 167 Cal.App.4th at p. 1182.) “An essential element of any
[enforceable] contract is [mutual] consent.” (Weddington Productions, Inc. v.
Flick, supra, 60 Cal.App.4th at p. 811; see also Civ. Code, §§ 1580, 1636.)
Simayof goes on to argue that Eitani and Simayof never reached a meeting of
the minds on a material term of the settlement agreement, namely, whether
Simayof is entitled to a modification of the payment plan in the event he
experiences financial difficulties. Alternatively, he argues that Eitani
“fraudulently induced” Simayof to sign the Simayof stipulation by verbally
promising that she would modify the payment plan if Simayof experienced
financial difficulties even though she had no intention of actually doing so.
There are several problems with these arguments.

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 First, Simayof did not argue in the trial court that the parties had
failed to reach a binding agreement in 2013. “It is elementary that questions
not raised in the trial court will not be considered on appeal. [Citations.]
Under this well settled rule a party is prohibited from asserting on appeal
claims to relief not asserted or requested in the court below, and is prohibited
from asserting matters of defense not there presented.” (Algeri v. Tonini
(1958) 159 Cal.App.2d 828, 832 [citing line of cases].)
Second, section 664.6 expressly authorizes the trial court to determine
whether a settlement has occurred (Skulnick v. Roberts Express, Inc. (1992)
2 Cal.App.4th 884, 889; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.) This
court is required to presume that the evidence supports the trial court’s
finding that the parties had reached a binding agreement. (See, e.g., Hines,
supra, 167 Cal.App.4th at pp. 1182–1183.) If, as Simayof now argues,
Simayof and Eitani had different understandings of the terms of the
agreement, which prevented a “meeting of the minds,” the trial court was in
the best position to hear and decide the disputed factual issues. As discussed
above, it is not the role of the appellate court to decide disputed factual
issues.
Third, the record in this case contains ample evidence that Simayof
considered the Simayof stipulation to be valid and enforceable. Simayof
partially performed by making three payments of $2,500 in 2015. He also
successfully asserted Eitani’s duty under the agreement to reasonably
evaluate his request to modify the payment schedule to defeat Eitani’s first
two motions to enter judgment pursuant to section 664.6. “ ‘Ordinarily, a
party cannot accept the benefits of a judgment, in whole or in part, and then
attack it by appeal. His conduct in taking any of its advantages while

14
seeking to reverse it is inconsistent, and the result is a waiver of the right.’ ”
(In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1179.)
For the reasons discussed above, we find that Simayof is precluded
from arguing on appeal that the Simayof stipulation was not a valid
agreement that could be entered as a judgment pursuant to section 664.6.
B. The Trial Court’s Decision That Eitani Proved Each of the
Conditions Precedent to Entry of Judgment is Supported by
Substantial Evidence
The parties agreed that judgment would not be entered upon the
Simayof stipulation unless Simayof failed to make the payments required
under the agreement, Eitani provided Simayof with a written notice of
default, and Simayof failed to cure the default within 10 days. The trial court
found that Eitani had proven each of these prerequisites to entry of
judgment. The trial court’s findings are amply supported by evidence in the
record.
The primary point of contention throughout these proceedings is the
degree to which each party complied with the clause that authorizes Simayof
to request a modification of the payment schedule based on a verified
showing of financial difficulties. On appeal, Simayof contests the trial court’s
findings that Simayof failed to support his request to modify the payment
schedule with “verified financial data,” and that Eitani acted reasonably and
in good faith in considering and denying Simayof’s request for modification.
We find that the trial court’s factual findings on each point are supported by
substantial evidence.
As an initial matter, the trial court properly rejected Simayof’s
interpretation of the Simayof stipulation as requiring Eitani to reduce the
payment schedule at Simayof’s request if he claimed to be suffering from
financial difficulties. “The court generally may not consider extrinsic

15
evidence of any prior agreement or contemporaneous oral agreement to vary
or contradict the clear and unambiguous terms of a written, integrated
contract.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th
1107, 1125–1126.) Here, Simayof’s self-serving declaration was contrary to
the clear and unambiguous terms of the Simayof stipulation, which required
Eitani to consider modification of the payment schedule annually only if
Simayof had submitted verified proof of financial difficulties prior to
September 1 in any calendar year.
The evidence established that between July 2015 and October 2019,
Simayof repeatedly requested to defer payments or reduce payments due to
unspecified financial difficulties. Despite explicit and repeated demands,
Simayof refused to produce “verified” financial data, that is, a financial
statement and/or financial documents accompanied by an affidavit in which
Simayof declared under penalty of perjury that the information was true and
correct. It is true, as Simayof argued in the trial court and again on appeal,
that over time he eventually produced copies of bank records, signed and
unsigned tax records, and other types of financial data. The trial court
correctly found that simply producing some financial data did not comply
with the term of the Simayof stipulation, which required Simayof to make “a
verified showing of Simayof’s financial difficulties” in support of any request
to modify the payment schedule.
The trial court’s finding that Eitani acted reasonably in rejecting
Simayof’s demand to reduce payments is also supported by substantial
evidence. Following the denial of Eitani’s second motion to enter judgment,
Eitani’s attorneys understood that the trial court had set a “high bar,” which
required Eitani to negotiate Simayof’s request for a modification of the
payment schedule in good faith. The evidence demonstrated that between

16
2017 and 2019, the parties exhaustively negotiated whether the payment
plan should be modified and if so, on what terms. This evidence supported
the trial court’s determination that Eitani had reasonably exercised her
discretion to consider, and ultimately deny, Simayof’s request.
III. The Trial Court’s Decision to Enter Judgment Against the WOC
Defendants is Consistent with Section 664.6 and is Supported
by Substantial Evidence
A. The Trial Court Properly Determined That the WOC
Defendants and Eitani Entered into a Written Settlement
Agreement Which is Enforceable as a Judgment
Cohen represented herself and her brother Simayof throughout this
litigation. She argues that the stipulation she negotiated with Eitani on
behalf of the WOC defendants, unlike the Simayof stipulation, was never
intended to be entered as a judgment.
On its face, section 664.6 requires only that “parties to pending
litigation stipulate, in a writing signed by the parties outside the presence of
the court . . . for settlement of the case . . . .” (§ 664.6, subd. (a).) The statute
does not require the parties to reference entry of judgment in order for their
settlement to be enforceable as a judgment. (See, e.g., Hines, supra, 167
Cal.App.4th at p. 1177; In re Marriage of Hasso, supra, 229 Cal.App.3d at
pp. 1180–1185.) It is essential, however, that when a settlement calls for
dismissal of an action, or when a case is actually dismissed, prior to
dismissal, the parties ask the court to retain jurisdiction until such time as
all of the terms of the settlement have been performed by the parties. (Sayta
v. Chu (2017) 17 Cal.App.5th 960, 966.) The stipulation in this case expressly
asks the court to retain jurisdiction until all terms have been performed,
bringing the stipulation squarely within section 664.6.

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 B. The Trial Court’s Determination That the WOC Defendants’
Duty to Pay Was Triggered by Simayof’s Default is Supported
by Substantial Evidence
Cohen asserts that the trial court’s findings in 2016 and 2017 that
“Simayof was not in default” are evidence that the trial court should have
relied upon in 2019 to find that the WOC defendants’ duty to pay Eitani had
not yet arisen. Cohen misconstrues the trial court’s 2016 and 2017 findings,
both of which focused on whether Eitani had established a condition
precedent to entry of judgment and never reached the question of whether
Simayof was in default.
In contrast, when squarely presented with the issue on November 22,
2019, the trial court found that Simayof’s failure to make the required
payments, in the absence of an agreed-upon written modification of the
payment schedule, was a breach which triggered the WOC defendants’ duty
to pay Eitani $135,000. As discussed above, the trial court’s finding that
Simayof breached the Simayof stipulation is supported by substantial
evidence. So, too, are the trial court’s findings that Cohen, as WOC’s agent,
was provided with written notice of Simayof’s default and failed to timely
cure the default. As Eitani points out, it is Simayof’s failure to make the
payments required by the Simayof stipulation that triggers the WOC
defendants’ duty to pay rather than, as Cohen asserts, a court determining
that Simayof is in default.7
Cohen further argues that in the event that judgment is entered
against the WOC defendants, they are entitled to set-offs against the

7To interpret either stipulation as requiring a contested evidentiary
hearing on whether Simayof was in default would undermine the summary
nature of entering judgment pursuant to section 664.6. (See, e.g., Machado v.
Myers, supra, 39 Cal.App.5th at p. 790 [statutory procedure for enforcing
settlement agreements is an “expeditious” alternative].)

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$135,000 guarantee. First, Cohen argues that the trial court erred by
entering judgment for $135,000 because the WOC defendants are entitled to
a $7,500 set off for the three payments Simayof made to Eitani in 2015.
Cohen’s second argument is that Eitani breached the stipulation when she
refused to accept Simayof’s offer of an emerald ring in lieu of the $2,500
payment required on July 4, 2015, and returned the $500 payments that
Simayof had tendered because the WOC defendants would have been entitled
to offset such payments against the $135,000 guarantee. Neither contention
is meritorious.
The stipulation provides that the WOC defendants will personally
guarantee Simayof’s payment to Eitani in the amount of $135,000. “Such
guarantee shall remain in effect until Plaintiff receives $200,000 from the
[Simayof] Defendants.” “[I]n the event of any default on the payments by
SIMAYOF, not cured within ten (10) days after written notice to WOC, WOC
shall be obligated to pay Plaintiff $135,000.00, less credits for payments
made.”
Eitani interprets the stipulation as allowing the WOC defendants to
offset any payments Cohen or WOC made to Eitani, not those made by
Simayof. According to Eitani, allowing the WOC defendants to offset
payments made by Simayof contradicts the language that said defendants
remain obligated to pay $135,000 until Simayof has paid Eitani at least
$200,000: The trial court agreed with Eitani’s interpretation of the
stipulation, as do we.
“ ‘ “If interpretation of a stipulation is in order, the rules applied are
those applied to the interpretation of contracts.” ’ ” (Machado v. Myers,
supra, 39 Cal.App.5th at p. 792.) Under statutory rules of contract
interpretation, the mutual intent of the parties must be inferred, if possible,

19
solely from the written terms of the contract. (Civ. Code, § 1639; AIU Ins. Co.
v. Superior Court (1990) 51 Cal.3d 807, 821–822.) “We consider the contract
as a whole and interpret the language in context, rather than interpret a
provision in isolation.” (American Alternative Ins. Corp. v. Superior Court
(2006) 135 Cal.App.4th 1239, 1245.) “Contractual language is ambiguous if it
is susceptible of more than one reasonable interpretation in the context of the
[contract] as a whole.” (Ibid.) “Whether contractual language is ambiguous
is a question of law that we review de novo.” (Ibid.) In cases of uncertainty,
which are not resolved by application of the preceding rules, the ambiguous
language should be interpreted most strongly against the party which caused
the uncertainty to exist. (Civ. Code, § 1654; Sandquist v. Lebo Automotive,
Inc. (2016) 1 Cal.5th 233, 248.)
While the stipulation is arguably ambiguous in failing to specify
whether the WOC defendants are entitled to credits for payments they have
made, Simayof has made, or both, the ambiguity is easily resolved by reading
this clause in the context of the stipulation as a whole. The parties agreed
that the WOC defendants would guarantee payment of $135,000 to Eitani
until such time as Eitani received $200,000 or more from the Simayof
defendants. The trial court found that Simayof had paid Eitani only $7,500
in six years. To allow the WOC defendants credits of $7,500 would render
the requirement that the guarantee for $135,000 remain in effect until Eitani
receive $200,000 a nullity. For this reason, Cohen’s claim of entitlement to a
$7,500 setoff against the judgment is rejected.
We also reject Cohen’s argument that Eitani breached the stipulation
by refusing to accept an emerald ring from Simayof in lieu of monetary
payments or by returning the $500 payments Simayof tendered while the
parties negotiated a possible modification of the payment schedule. The

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stipulation provides that the WOC defendants’ duty to personally guarantee
$135,000 arose in July 2015, when WOC received the initial written notice of
Simayof’s default. We agree with Cohen’s implicit argument that the WOC
defendants stood to benefit if Eitani had agreed to modify the payment
schedule by accepting the ring or reduced payments because, at that
juncture, Simayof would not have been in default. However, the evidence
clearly established that Eitani and Simayof never entered into a written
agreement to modify Simayof’s payment schedule. Accordingly, the WOC
defendants are not entitled to the benefit of payments, which Simayof
tendered, but Eitani was under no duty to receive.
DISPOSITION
The judgments are affirmed. Eitani shall recover costs on appeal.

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 _________________________
Mayfield, J.*

We concur:

_________________________
Richman, Acting P.J.

_________________________
Miller, J.

Eitani v. Simayof et al. (A159547)

* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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