Filed 10/8/26 Strauss v. Weerts Real Estate CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NATHAN STRAUSS, B346357
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV23746)
v.
WEERTS REAL ESTATE, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lee S. Arian, Judge. Affirmed.
Downtown L.A. Law Group, Andrew M. Morrow and Jami
I. Copeland, for Plaintiff and Appellant.
Courtney D. Flannery & Associates, Michael H. Park for
Defendants and Respondents.
_________________________
Nathan Strauss (Strauss) filed a premises liability action
against Weerts Real Estate, Inc., and Kin Wa Yung, Janet Rhee,
and Kin Kwok Yung, as individuals and as trustees of the Yung
Family Trust (collectively, Weerts). After mediation, the
mediator proposed a settlement that included a release of all
claims and waiver of Civil Code section 1542. The parties agreed
to the proposal. However, Strauss then refused to execute the
release, saying there was no meeting of the minds on the release.
Weerts moved to enforce the settlement. The trial court granted
the motion, finding that there was an enforceable settlement
agreement. We agree and affirm the judgment.
BACKGROUND
I. The mediation and proposal
Weerts owned real property in Santa Monica. In 2022,
Strauss filed a negligence and premises liability action against
Weerts, alleging he was injured at the property. The parties
mediated the dispute. Afterwards, the mediator emailed this
settlement proposal to the parties:
“[Weerts] to pay [Strauss] the sum of $75,000.00 in
exchange for [Strauss]’s acceptance of said sum. [Strauss] to be
responsible for all liens he/she/they have incurred. [Strauss] to
execute a more comprehensive Full Release of All Claims which
will include a Civil Code section 1542 waiver, and dismiss this
entire action with prejudice following receipt of settlement
monies. Each side to bear own costs and attorney’s fees.
[¶] . . . [¶]
“Note: Your ‘Yes’ vote email or text is an electronic
signature. From a legal point of view, if you vote ‘yes’ and there
is a deal, because all other parties also voted ‘yes,’ you are
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agreeing that your email or text to me accepting the proposal will
constitute a valid electronic signature from your client(s)
creating—along with the others’ ‘yes’ responses—an enforceable
and binding agreement by your clients as to the proposal. As
such, by responding via text or email to this proposal, you agree
that the responsive ‘yes’ emails or texts may be disclosed by me
with all other parties if necessary for any party to enforce such
agreement. Thus, if all responses are ‘yes’ all parties agree that
the proposal itself, and the affirmative email or text responses to
it, may be subject to disclosure and discoverable under Evidence
Code 1123, and the agreement may be enforceable under Code of
Civil Procedure 664.6.”
Both parties timely agreed to the proposal, with Strauss’s
counsel responding via email, “Plaintiff agrees yes to the
proposal.” The mediator then sent an email confirming, “We
have a settlement pursuant to the terms of the proposal.”
Thereafter, Weerts’s counsel sent a release and request for
dismissal to Strauss to execute, stating that on receipt of the
executed release and dismissal, counsel would forward the
$75,000.
Weerts did not hear back from Strauss for weeks, until his
counsel sent this email: “Please give us a call. In thirty years of
practice I’ve never had a client back out of a mediator proposal
(although I’ve been the victim of it many times) but Nathan’s wife
blew a gasket when she learned the amount (she’s his primary
caretaker) and to stave off a divorce he is rejecting the
settlement. I apologize for the inconvenience this may cause you
and your client.”
The next day, Strauss’s counsel told Weerts’s counsel that
he believed his client would follow through with the agreement
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and offered to stipulate to continue the trial so that the parties
could resolve issues arising from the settlement. However, the
parties were unable to resolve the issues.
II. Weerts’s motion to enforce the settlement
Weerts moved to enforce the settlement under Code of Civil
Procedure section 664.6. Strauss opposed the motion, arguing
there was no meeting of the minds on an essential term, namely,
the release. According to Strauss, the unsettled essential terms
included “the handling of Medi-Cal reimbursement, the
resolution of outstanding medical liens, and the inclusion and
effect of a [Civil Code section] 1542 waiver,” which was
“particularly critical” “given the ongoing landlord-tenant dispute
between” the parties and Strauss’s tenancy with Weerts.1
On February 19, 2025, the trial court issued its order
granting Weerts’s motion. The trial court rejected Strauss’s
argument that there was no meeting of the minds regarding the
release. Rather, the mediator’s proposal expressly said Strauss
would be responsible for all liens, which the trial court observed
generally included medical liens in personal injury lawsuits. As
to the Civil Code section 1542 waiver, the mediator’s proposal did
1
Strauss raised other arguments below that he does not
raise on appeal. However, in a footnote in his reply brief, Strauss
suggests that the parties did not sign the agreement. To the
extent Strauss intends to raise any issue regarding whether the
parties signed the agreement, we do not consider arguments
raised by an appellant for the first time in a reply brief absent a
showing of good cause. (See, e.g., Raceway Ford Cases (2016)
2 Cal.5th 161, 178; Habitat & Watershed Caretakers v. City of
Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6; Holmes v.
Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1064,
fn. 2.)
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not limit it or indicate it was subject to further negotiation. And
when Strauss agreed to the proposal, he raised no objection to the
waiver, which was in the standard language.
The trial court accordingly entered judgment pursuant to
the terms of the settlement.
DISCUSSION
I. General principles and standard of review
California’s public policy encourages voluntary settlement
of litigation. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359
(Osumi).) Code of Civil Procedure section 664.6 promotes this
policy by providing an expedited procedure to enforce a
settlement once parties have agreed to it. (Osumi, at p. 1360.)
The section provides: “If parties to pending litigation stipulate,
in a writing signed by the parties outside the presence of the
court or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to
the terms of the settlement. If the parties to the settlement
agreement or their counsel stipulate in writing or orally before
the court, the court may dismiss the case as to the settling
parties without prejudice and retain jurisdiction over the parties
to enforce the settlement until performance in full of the terms of
the settlement.” (Code Civ. Proc., § 664.6, subd. (a).)
Before a judgment may be entered under this provision, the
trial court must determine whether the parties entered an
enforceable settlement. (Osumi, supra, 151 Cal.App.4th at
p. 1360.) An enforceable contract requires (1) parties capable of
contracting, (2) the parties’ consent, (3) a lawful object, and
(4) adequate consideration. (Civ. Code, § 1550; see generally
Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
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810–812.) “In order for acceptance of a proposal to result in the
formation of a contract, the proposal ‘must be sufficiently
definite, or must call for such definite terms in the acceptance,
that the performance promised is reasonably certain.’ ”
(Weddington, at p. 811.) To determine whether the parties
entered into an enforceable contract, the trial court may consider
the parties’ declarations and other evidence. (Osumi, at p. 1360.)
When a trial court grants a motion brought under Code of
Civil Procedure section 664.6, we review its findings of fact for
substantial evidence and its resolution of questions of law de
novo. (Osumi, supra, 151 Cal.App.4th at p. 1360; Burckhard v.
Del Monte Corp. (1996) 48 Cal.App.4th 1912, 1916.) The
substantial evidence standard of review requires us to resolve
evidentiary conflicts and draw all reasonable inferences to
support the trial court’s finding that the parties entered an
enforceable settlement agreement and its order enforcing that
agreement. (Osumi, at p. 1360.)
Here, Strauss argues that the parties never agreed on the
“scope and effect of the Civil Code section 1542 waiver within the
comprehensive release.” He specifically asserts that there was no
agreement whether the release included an “unrelated landlord-
tenant litigation” with Weerts, which had not been raised during
the mediation.
True, the release proposed in the settlement here did not
reference any specific litigation. Nonetheless, the settlement
proposal very clearly released “All Claims” and included a “Civil
Code section 1542[2] waiver.” Such a general release is
2
Civil Code section 1542 provides, “A general release does
not extend to claims that the creditor or releasing party does not
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enforceable and acts as a “complete bar to all claims (known or
unknown at the time of the release) despite protestations by one
of the parties that he did not intend to release certain types of
claims.” (San Diego Hospice v. County of San Diego (1995)
31 Cal.App.4th 1048, 1053; Winet v. Price (1992) 4 Cal.App.4th
1159, 1173.) Further, a release of “ ‘any and all claims’ ” and
express waiver of all rights under Civil Code section 1542 is
enforceable where the agreement was explicit and parties were
represented by counsel, whom we presume explained the import
of the release in the absence of evidence to the contrary. (Belasco
v. Wells (2015) 234 Cal.App.4th 409, 422; accord, Salehi v.
Surfside III Condominium Owners’ Assn. (2011) 200 Cal.App.4th
1146, 1160.) And, in general, courts will not set aside contractual
obligations embodied in written contracts merely because a party
claims to have been ignorant of or misunderstood the contract’s
provisions. (Estate of Eskra (2022) 78 Cal.App.5th 209, 228.)
Strauss and Weerts were both represented by separate
counsel, so we presume counsel explained the release to their
clients. (Belasco v. Wells, supra, 234 Cal.App.4th at pp. 421–
422.) Strauss offered no evidence to the contrary. Indeed, in his
declaration opposing the motion to enforce the settlement,
Strauss’s counsel merely restated that the settlement proposal
was ambiguous and lacked essential terms because it did not
address “the handling of Medi-Cal reimbursement, the resolution
of outstanding medical liens, and the inclusion and effect of a
California Civil Code §1542 waiver.” But the settlement proposal
know or suspect to exist in his or her favor at the time of
executing the release and that, if known by him or her, would
have materially affected his or her settlement with the debtor or
released party.”
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directly addressed these issues. It stated that Strauss was
“responsible for all liens he/she/they have incurred” and required
him to execute a more comprehensive “Full Release of All Claims
which will include a Civil Code section 1542 waiver.” As the trial
court observed, liens generally include medical liens. That the
proposal contemplated the preparation and execution of a more
formal comprehensive release does not alter the agreement’s
validity. (Blix Street Records, Inc. v. Cassidy (2010) 191
Cal.App.4th 39, 48.)
Weerts offered evidence that Strauss’s problem with the
settlement had nothing to do with the release. Rather, Strauss’s
wife was unhappy with the amount of the settlement, so he
needed to reject the settlement “to stave off a divorce.” Although
the trial court did not expressly so state, it could have credited
that evidence as showing that the parties’ supposed failure to
agree on release terms was a smokescreen to avoid the
settlement.
Strauss nonetheless asserts that the trial court exceeded its
authority under Code of Civil Procedure section 664.6 by
imposing terms. He cites Weddington, supra, 60 Cal.App.4th 793
in support. In that case, the parties’ mediation yielded a one-
page memorandum containing “many material terms” but also
providing that the parties would later formalize a licensing
agreement with additional material terms. (Id. at pp. 796, 799–
800.) The record showed that the licensing agreement was “of
central material importance to both sides” because it concerned a
sound library at the heart of the dispute. (Id. at p. 800.) When
the parties could not agree on the licensing agreement, the
mediator engaged in additional proceedings, which the defendant
eventually refused to attend. Ultimately, the mediator issued a
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33-page order purporting to enforce the alleged settlement
agreement and imposing material terms the parties never agreed
to. (Id. at pp. 796–797.) The trial court enforced the settlement
agreement, but the appellate court reversed, stating that Code of
Civil Procedure section 664.6 does not authorize a judge to create
material settlement terms, as opposed to deciding what terms the
parties themselves agreed to. (Weddington, at p. 810.)
In contrast, Strauss cites no evidence that resolving the
separate landlord-tenant dispute was material to the settlement
agreement. To the contrary, it was never raised at the mediation.
It was also not raised in various emails between counsel
postmediation. Indeed, Strauss concedes in his reply that the
“parties never discussed the need to carve out the landlord-
tenant dispute from the waiver, even though” it was purportedly
“essential” to Strauss. It is unclear why, if the term was so
essential to Strauss, he never mentioned it. (Compare with
Marin Storage & Trucking, Inc. v. Benco Contracting &
Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1050–1051 [parties’
course of dealing over years established that oral agreement
included various terms].) Rather, as we have said, Strauss’s
stated reason for refusing to sign the release was his wife’s
unhappiness with the $75,000 settlement payment, not with
potentially releasing a known claim. Accordingly, the release’s
failure to mention a landlord-tenant dispute was entirely
consistent with the parties’ agreement.
Finally, we do not decide any issue regarding the landlord-
tenant dispute Strauss references. Other than a few references
to it in the parties’ papers, no evidence of that dispute is before
us. Whether the release bars any lawsuit between the parties
can be raised as an affirmative defense in any such action. (See
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Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877,
fn. 3.)
DISPOSITION
The judgment is affirmed. Respondents to recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ASHWORTH, J.*
We concur:
ADAMS, P. J.
HANASONO, J.
* Retired Judge of the El Dorado County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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