Feng v. Mallard
Filed 9/23/11 Feng v. Mallard CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
JANE FENG et al.,
Plaintiffs and Appellants, A130553
v. (San Mateo County
Super. Ct. No. CIV491251)
THOMAS EARL MALLARD,
Defendant and Respondent.
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Jane Feng and Zhen Zhou appeal contending the trial court erred when it enforced a settlement agreement that they signed. We conclude appellants have forfeited the right to argue the court erred and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The background of this dispute has been difficult to ascertain because appellants have provided an inadequate record and they have largely ignored their obligation to support statements of fact in their briefs with citation to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) As best as we can tell, on October 28, 2009, shortly before 7:00 p.m., appellant Zhou was driving with his mother appellant Feng along El Camino Real in Millbrae. When Zhou stopped for a traffic light, his car was struck from behind by a car being driven by respondent Thomas Earl Mallard.
Sometime thereafter, appellants filed a complaint against Mallard seeking damages for personal injuries.[1] Mallard filed a cross-complaint against Zhou seeking apportionment of fault and indemnity.
The parties stipulated to mediation and the case was referred to a mediator, Stephen Harper. The mediation occurred on August 16, 2010. Appellants were represented by their attorney, Arthur Liu and by a relative, Glen Perkins who speaks Chinese. Respondent Mallard was represented by an attorney Kevin Cholakian. The case was settled and appellants signed a written settlement agreement. Mallard’s insurance carrier agreed to pay $20,000 to Feng and $5,000 to Zhou. Three days later on August 19, 2010, Cholakian sent a formal release to Liu and asked appellants to sign it.
The following day, counsel for appellants sent a letter to Cholakian “rescinding” the settlement agreement. Cholakian replied that he would resist any attempt to rescind.
On September 3, 2010, appellants filed a substitution of attorney electing to represent themselves. Appellants then sent a letter to respondent’s counsel asking that the settlement check be prepared in their names only.
Respondent’s counsel arranged a meeting with appellants in order to finalize matters, but respondent failed to appear for the meeting. When appellants failed to appear, on September 15, 2010, respondent filed a motion to enforce the settlement.
On September 27, 2010, Feng filed a request to dismiss her complaint. The request was entered as requested by a court clerk on that same date.
Appellant Zhou opposed the motion to enforce arguing the settlement agreement had been procured through duress. Specifically Zhou alleged that respondent’s attorney Cholakian acted improperly at the mediation hearing by threatening to have Zhou’s driver’s license suspended.
The trial court conducted a hearing on respondent’s motion to enforce on October 13, 2010. Zhou testified at the hearing and reiterated his claim that the settlement agreement had been procured through duress. Perkins, who had attended the mediation hearing on Zhou’s behalf, denied that Cholakian acted improperly saying he did not hear “anything specific of that sort.” Rather, what Perkins heard Cholakian say was “if you go to court, we are going to tell the Court about this driving incident and this statement and so on.”
Weighing this conflicting testimony, the trial court ruled Cholakian had not acted improperly, stating, “I do not believe the threat as alleged was actually made especially in light of the statement that was made here by Mr. Perkins. So I don’t see any reason why the settlement should not be enforced as agreed.”
Accordingly, the court vacated Feng’s dismissal and ordered Feng and Zhou to execute the documents necessary to complete the settlement as agreed. On November 4, 2010, the court entered a formal order that incorporated its ruling.
As contemplated by the settlement agreement, respondent’s insurance carrier sent Feng and Zhou checks for $20,000 and $5,000 respectively. Appellants negotiated those checks on or after November 24, 2010.
II. DISCUSSION
Appellants contends the trial court erred when it enforced the settlement agreement. Zhou argues the court should not have enforced that agreement because (1) it was obtained through the improper conduct of Cholakian, (2) “defense counsel [had] no authority to dismiss the cross complaint” and (3) the court abused its discretion when it granted respondent’s motion to enforce. Feng argues the court erred when it set aside her dismissal and enforced the settlement agreement. We need not address any of these arguments because appellants have forfeited the right to raise them on appeal.
A fundamental rule of appellate practice is that one who accepts the benefits of a judgment cannot thereafter attack the judgment on appeal. (Lee v. Brown (1976) 18 Cal.3d 110, 114.) The theory is that the right to accept the fruits of a judgment is inconsistent with an attack thereon and that an election to take one course of action is a renunciation of the other. (Ibid.)
Here, respondent contends and appellants concede that after the court entered the order enforcing the settlement, they obtained and then negotiated the $20,000 and $5,000 checks required by the order they now challenge. Having enjoyed the benefits of that order, we conclude appellants cannot validly challenge the order on appeal.
Appellants acknowledge the forfeiture rule we have described, but they argue that rule should not apply here because the underlying settlement was obtained through Cholakian’s improper conduct. Appellants have not cited any case that supports their position, and the argument is unpersuasive in any event. The trial court expressly ruled that Cholakian did not act improperly and its ruling on this point is supported by substantial evidence. The court’s ruling on this factual issue is binding on appeal. (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1166.)
We conclude the court did not err when it enforced the settlement.
III. DISPOSITION
The order at issue is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
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