Williams v. North American
Title Ins. Co.









Filed 7/9/12
Williams v. North American Title Ins. Co. CA1/4

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR




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ANDRES LAMAR WILLIAMS, as Trustee, etc., Plaintiff and Appellant, v. NORTH AMERICAN TITLE INSURANCE COMPANY, Defendant and Respondent.

A131968 (Alameda County Super. Ct. No. RG06255389 & RG09456832)

I.

Introduction

Appellant Andres Lamar Williams,
individually and as Trustee of the Andres Williams Trust dated June 25, 2004
(collectively, Williams), appeals from summary
judgment entered in favor of respondent North American Title Insurance
Company (North American). Williams filed
suit against North American for bad faith and related insurance claims after
Williams was sued by his neighbor Christopher Murphree (Murphree) for
interference with Murphree’s sewer line, which ran across Williams’s
property. Williams and North American
had earlier settled a claim when it was learned that the Murphree sewer line
was not disclosed at the time Williams purchased his property.

The pivotal issue on appeal is
whether a previous release executed by these parties in conjunction with the
settlement of Williams’s earlier claim bars Williams’s current lawsuit against
North American. Among other arguments,
Williams contends North American’s representative misrepresented the terms of
the release and, as a result, he never understood that his earlier name="SR;413">settlement with North American
included a release of the
“duty to defend [Williams] in a civil action concerning the
encroachments.” Williams claims that
since the potential for coverage exists, summary judgment was erroneously
granted. We conclude, as did the trial
court, that the release bars the current lawsuit, and we shall therefore affirm
the summary judgment.

II.

Procedural History

Williams was sued by Murphree on
February 15, 2008, in the Alameda County Superior Court (case number
RG06255389). The complaint alleged 12
causes of action all arising from a sewer line serving the Murphree residence
that ran through a portion of Williams’s property. The complaint noted that since Williams
purchased his property in 2000, and Murphree purchased his adjoining property
in 2001, the two have been mired in disputes between themselves, the prior
owners of both parcels, the real estate sales agents, and Williams’s title
insurance company over the placement and rights associated with the sewer
line. These disputes were alleged to
have resulted in Williams receiving compensation relating to the Murphree sewer
line in the amount of $22,000.
Notwithstanding these payments, the complaint goes on to allege that
Williams interfered with the Murphree sewer line in ways that obstructed its
flow and the right of Murphree to the use of said line.

On June 10, 2009, Williams sued
North American in the same court (case number RG09456832) for declaratory
relief, insurance bad faith, and breach of contract. The complaint alleged that North American had
a duty to defend and to indemnify Williams against the Murphree lawsuit, and
that it has acted in bad faith in failing and refusing to do so.

North American filed a general
denial to the Williams’s complaint, including 16 affirmative defenses. The twelfth affirmative defense alleged that
Williams’s claims asserted against North American had been previously settled
and released, and therefore any recovery under the current complaint was
barred.

Apparently, sometime thereafter, the
two cases were ordered consolidated.href="#_ftn1" name="_ftnref1" title="">>[1] North American filed a motion for summary
judgment on December 17, 2010, on the ground that all of the claims in Williams’s
complaint against North American were barred by a prior settlement entered into
between Williams and North American which resulted in Williams being paid
$23,500, and for which he had released North American from any further claims
and liability arising out of the Murphree sewer line dispute.

Williams opposed the motion, and the
matter was set for a hearing on March 10, 2011.
Prior to the hearing date, a tentative ruling was issued by the trial
court indicating an intention to grant the motion. The tentative ruling was not contested and
became the order of the court on March 11, 2011. Judgment was entered in favor of North
American on March 15, 2011. This appeal
followed.

III.

The Motion for Summary Judgment

North American’s motion for summary
judgment and supporting papers included a historical record relating to the
parties’ dispute. It was uncontested
that Williams was and is an attorney licensed to practice law in California
since 1988. In September 2000, Williams
purchased a residential property in Oakland located at 6741 Snake Road
(the Property). At the time the Property
was purchased, Williams also purchased a homeowner’s title insurance policy
from North American covering the Property (the Policy).

In May 2002, Williams made a claim to
North American under the Policy relating to two separate conditions discovered
on the property. One was the discovery
of an adjoining neighbor’s (Murphree’s) sewer line that crossed the Property.href="#_ftn2" name="_ftnref2" title="">[2] In his May 9, 2002 letter tendering his
claim, Williams explained that the existence of the neighbor’s sewer line was
not disclosed or noted in North American’s title report, and that “[t]here is
no easement.”

North American responded to the
claim by letter dated October 18, 2002.
In that letter, North American confirmed that its investigation
discovered that the neighbor’s sewer line crossed a portion of the Property and
connected to a line at the rear of the Property. The letter reported further: “Although there
does not appear to be a recorded easement or right of way for the storm drain
and the sewer line to traverse your property, it does appear >the City and your neighbor are asserting a
right to do so.” (Italics
added.) As a result, North American
conceded the claim was proper under “Covered Risk number 4” of the Policy,
“[t]o the extent you suffer any actual loss as a result of the existence of the
storm drain and the sewer line . . . .” Covered Risk number 4 provided coverage when
“[s]omeone else has an easement on the Land. . . .”

The October 18, 2002 letter went on
to explain that North American essentially had seven options available to it
under the Policy when it learns of a claim, including: “(3) Bring or defend a legal action relating to the claim.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(5) End the coverage of this
Policy for the claim by paying You Your actual loss resulting from the Covered
Risk, and those costs, attorneys’ fees and expenses incurred up to that time
which We are obligated to pay . . . .”

The letter went on to advise
Williams that North American might exercise its right under the policy to pay
his losses and terminate further coverage for the claim: “Consistent with paragraph 4 of the
Conditions section of the Policy, [North American] may exercise its option to
pay the loss compensable under the terms and conditions of the Policy. The measure of the loss compensable under the
Policy is the market value of your property with the existence of the covered
matters and the value of the property without the existence of the covered
matters, based on the use to which the property is being devoted on the date of
the discovery of those matters. [Citation.] By so
exercising this option [North
American] terminates any defense
obligation under the Policy.”
(Italics added.)

The letter then informed Williams
that North American was retaining an appraiser to assess any diminution in
value to his property attributable to the storm drain and sewer line, and that
a copy of the appraiser’s report would be provided to Williams.

North American wrote again to
Williams on December 12, 2002, confirming that it had sent him a copy of the
appraiser’s report concluding that the diminution in value to Williams’
property attributable to the City of Oakland’s storm drain and the sewer line
“that runs from your neighbor’s house and connects to the sewer line at the
rear of your house” to be $4,500. The
letter tendered a check in this amount, telling Williams that the tender “was
without prejudice to your right to assert that the value is greater than
$4,500[] and without prejudice to your right to assert and pursue any other
claims you may have under the policy.”

The parties had a telephone
conference during which Williams advised North American that he disagreed with
the appraiser’s conclusion that his loss was only $4,500. North American wrote again to Williams on
December 18, 2002, advising him that if he disagreed with the appraiser’s
report, he could send information supporting his view as to the value of the
loss, or the parties could submit the dispute to arbitration.

Williams sent a six-page,
single-spaced letter to North American on December 26, 2002, attacking in
detail North American’s position at to the value of his loss, and complaining
about the long delay by North American in investigating and resolving his
claim. Near the conclusion of his letter
Williams implored North American to settle under threat of litigation if it did
not do so: “Surely, there must be a
reasonable man or woman at [North American] with good business judgment, who is
willing to work toward an informal resolution.
To this end, I am prepared to resolve this matter for $23,500, minus the
$4,500 unilaterally tendered by [North
American] . . . .
[¶] I cannot afford further delay.
My health, safety and welfare are at stake, in addition to the
substantial damages which I have already incurred and which are
continuing. Consequently, I must have
your response by January 2, 2003.”

The letter concluded by informing
North American that, absent a settlement, Williams intended “to bring a civil
action against you and others for breach of contract, abstractor’s negligence,
insurance bad faith, the tort of another,^{[href="#_ftn3" name="_ftnref3" title="">[3]]}
and such other causes of action as appropriate under the law.”

North American agreed to pay the
demanded amount, and on January 7, 2003, sent an additional check for $19,500
to Williams. The accompanying cover
letter also enclosed a release to be signed by Williams, noting that the
settlement was “in full settlement and resolution of your claim of loss on
account of the City of Oakland’s storm drain and your adjoining neighbor’s
sewer line easements affecting your property under the title policy.”

Williams signed the release. The title of the document was “FULL
SETTLEMENT AND RELEASE OF ALL CLAIMS.”
The recitals included that Williams “desires to resolve and compromise
any and all claims relating directly and indirectly to the Easements^{[href="#_ftn4" name="_ftnref4" title="">[4]]}
he may have against [North American] under the Policy.”

The release also included several
provisions describing the breadth and scope of the actual and potential claims
being released as a result of the settlement:

“3.
[Williams] fully releases and forever discharges [North American]
. . . from and against any and all claims, demands, liabilities,
obligations, actions and causes of action of any kind or nature whatsoever
relating directly or indirectly to the Easements . . . and any and
all claims or causes of action in any way relating to or arising out of the
handling of the claims of [Williams] including claims of bad faith, lack of
good faith, unfair practices of every kind or character, including but not
limited to alleged violations of California Insurance Code section 790.03.

“4.
It is understood by [Williams] that the facts and acts that he believes
to exist with regard to the Release may turn out to be other than or different
from facts and acts as he understands them today and that there may be other
facts and acts not known to him or believed by him to be true. [Williams] expressly assumes the risk of any
and all acts and facts subsequently turning out to be different and this
Release shall be effective and not subject to termination, rescission, or href="http://www.mcmillanlaw.com/">modification by reason of any such
difference in fact or facts.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“6.
To the extent that Civil Code section 1542 of the State of California
may be applicable to this Release, [Williams] waives, to the full extent
permitted by law, Civil Code section 1542 and any purported right to rely
thereon. Civil Code section 1542 reads
as follows: [¶] ‘A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the debtor.’
[¶] This Release shall act as a release of all future claims that
arise out of or in any way relate to matters released hereby whether such
claims are currently known, unknown, foreseen or unforeseen. [Williams] understands and acknowledges the
significance and consequence of such specific waiver of Section 1542 and hereby
assumes full responsibility for any injuries, damages, losses, or liabilities
that he may incur from the above-specified claim.”

Lastly, the document disavowed any
reliance by Williams on any written or oral statement by North American not
specifically incorporated into the release:

“11.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(b) [Williams] has not
relied upon any statement, representation, or promise, oral or written of
[North American] except as expressly set forth herein. Any representation, warranty, promise or
condition, whether written or oral, not specifically incorporated herein shall
not be binding upon any of the parties hereto.”

North American’s motion for summary
judgment claimed that Williams’s causes of action for declaratory relief,
insurance bad faith and breach of contract had no merit because Williams “has
settled and/or released and/or discharged those claims and relief.” Williams filed an opposition to the motion
for summary judgment on February 28, 2011.
His principal position was that, regardless of the content of the
written documents, Williams was assured by the North American representative
with whom he had been corresponding, attorney Charles Carlisle, that the
settlement would not affect his coverage under the Policy in the event he was
later sued in connection with the encroachments. He also claimed that the settlement was not a
bar to his current demand for a defense and indemnity because North American
failed to advise him that the neighbor “refused to abandon the lateral sewer
line under the premise of a prescriptive
easement . . . .”
These matters constituted fraud thereby voiding the agreement because it
lacked mutual assent.

Alternatively, Williams raised a
defense to the release contending that North American breached several
statutory duties owed to him including California Code of Regulations, title
10, section 2695.4, subdivision (e), which required North American to explain
the legal effect of the release to him where the release extended to matters
beyond the subject matter giving rise to the claim.

North American filed a reply brief
along with written objections to a number of statements made by Williams in his
declaration filed in opposition to the motion.
Most relevant here, North American objected to Williams’s statements
that he was given oral assurances by Carlisle, North American’s representative,
that, in the event litigation resulted from the dispute over the sewer line,
the settlement would not bar a future claim for defense and indemnity. Williams additionally claimed that North
American had misrepresented the terms of the settlement to him (Objection Nos.
1, 5, 9, 10 and 11).

As already noted, the trial court
issued a tentative ruling, which became the final decision when neither side
contested it. That written final order
was issued on March 10, 2011, and granted North American’s motion for summary
judgment. The court found that the terms
of the settlement, as embodied in the release agreement, were clear and
unambiguous and included a release by Williams of the claims now being asserted
against North American in his complaint.
Because the release was clear and unambiguous, the court ruled that the
parol evidence presented in Williams’s declaration was inadmissible to vary the
terms of that agreement. Accordingly,
the court sustained North American’s objections to those portions of Williams’s
declaration that varied with the written release or referred to alleged
promises that were inconsistent with the written release.

III.

Discussion

>A.
Standard of Review

“The purpose of the law of summary judgment is to provide courts
with a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (>Aguilar).) Summary judgment is appropriate “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law . . . .” (Code
Civ. Proc., § 437c, subd. (c).)

A defendant who moves for summary
judgment bears the initial burden to show that the action or cause of action
has no merit—that is, “that one or more elements of the cause of action, even
if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action.” (Code
Civ. Proc., § 437c, subds.(a), (p)(2).)
When the burden of proof at trial will be on the plaintiff by a
preponderance of the evidence, the moving defendant “must present evidence that
would preclude a reasonable trier of fact from finding that it was more likely
than not that the material fact was true [citation], or the defendant must
establish that an element of the claim cannot be established, by presenting
evidence that the plaintiff ‘does not possess and cannot reasonably obtain,
needed evidence’ ” to support a necessary element of the cause of
action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
1003, quoting Aguilar, >supra, 25 Cal.4th at p. 854; see >Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334 (Guz).)

If the defendant fails to meet this
initial burden, it is unnecessary to examine the plaintiff’s opposing evidence;
the motion must be denied. (>Quintilliani v. Mannerino (1998) 62
Cal.App.4th 54, 59-60.) However, if the
defendant makes a prima facie showing that justifies a judgment in its favor,
the burden then shifts to the plaintiff to make a prima facie showing that
there exists a triable issue of material fact.
(Aguilar, supra, 25 Cal.4th at p. 850.)
“The plaintiff . . . may not rely upon the mere allegations or
denials of its pleadings to show that a triable issue of material fact exists
but, instead, shall set forth the specific facts showing that a triable issue
of material fact exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal, we conduct a de novo
review of the record to “determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary
element of the plaintiff’s case, or has demonstrated that under no hypothesis
is there a material issue of fact that requires the process of trial, such that
the defendant is entitled to judgment as a matter of law. [Citations.]”
(Guz, supra, 24 Cal.4th at p. 334; see Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) We apply the same procedure used by the trial
court: We examine the pleadings to ascertain the elements of the plaintiff’s
claim; the moving papers to determine whether the defendant has established
facts justifying judgment in its favor; and, if the defendant met this burden,
plaintiff’s opposition to decide whether he or she has demonstrated the
existence of a triable issue of material fact.
(Knapp v. Doherty (2004) 123
Cal.App.4th 76, 84-85; Varni Bros. Corp.
v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.)

We recognize that summary judgment
“ ‘is a drastic measure which should be used with caution so that it does
not become a substitute for trial.’ ”
(Marketing West, Inc. v. Sanyo
Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 610, quoting >Biljac Associates v. First Interstate Bank
(1990) 218 Cal.App.3d 1410, 1420; see Baptist
v. Robinson (2006) 143 Cal.App.4th 151, 159.) Consequently, “[i]n performing our
de novo review, we must view the evidence in a light favorable to
plaintiff as the losing party [citation], liberally construing [plaintiff’s]
evidentiary submission while strictly scrutinizing [defendant’s] own showing,
and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]”
(Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.) “We need
not defer to the trial court and are not bound by the reasons for the summary
judgment ruling; we review the ruling of the trial court, not its
rationale.” (Knapp v. Doherty, supra,
123 Cal.App.4th at p. 85.)

> B. Analysis of
Issues Raised on Appeal

A de novo review of the trial
court’s ruling granting summary judgment in favor of North American necessarily
examines whether the claims asserted by Williams in his complaint were released
as part of the earlier settlement between the parties. If North American has satisfied its burden on
this issue, then we must also examine whether Williams has raised an admissible
issue of material fact that would render the written release unenforceable so
as not to bar the current claims.

The principle goal of contract interpretation
is to give effect to the mutual intention of the parties as it existed at the
time they entered into the contract. (>Bank of the West v. Superior Court
(1992) 2 Cal.4th 1254, 1264; Parsons v.
Bristol Development Co. (1965) 62 Cal.2d 861, 865; see also Civ. Code,
§ 1636.) That intent is interpreted
according to objective, rather than subjective, criteria. (Wolf
v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126
(Wolf).) When the contract is clear and explicit, the
parties’ intent is determined solely by reference to the language of the
agreement. (Civ. Code, §§ 1638
[“language of a contract is to govern its interpretation, if the language is
clear and explicit, and does not involve an absurdity”]; id. at § 1639 [“[w]hen a contract is reduced to writing, the
intention of the parties is to be ascertained from the writing alone, if
possible”].) The words are to be
understood “in their ordinary and popular sense” (id. at § 1644) and the “whole of [the] contract is to be taken
together, so as to give effect to every part, if reasonably practicable, each
clause helping to interpret the other” (id.
at § 1641).

“ ‘ “When a dispute arises
over the meaning of contract language, the first question to be decided is
whether the language is ‘reasonably susceptible’ to the interpretation urged by
the party. If it is not, the case is
over. [Citation.]” ’ ” (People
ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th
516, 524, citing Oceanside 84, Ltd. v.
Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448.)

In applying these guiding legal
principles to the issue raised by Williams, we conclude, like the trial court,
that the terms of the release agreement executed by Williams in conjunction
with his earlier settlement with North American could not have been clearer and
precluded Williams from claiming North American had any duty to defend or to
indemnify him in connection with the Murphree lawsuit. The release recitals included that Williams
was settling “any and all claims relating
directly and indirectly to the [sewer line] he may have against [North
American] under the Policy.” (Italics
added.)

The agreement also included
additional provisions describing the full scope of the actual and potential
claims being released as a result of the settlement:

“3.
[Williams] fully releases and forever discharges [North American]
. . . from and against any and all claims, demands, liabilities,
obligations, actions and causes of action of any kind or nature whatsoever
relating directly or indirectly to the Easements . . . and any and
all claims or causes of action in any way relating to or arising out of the
handling of the claims of [Williams], including claims of bad faith, lack of
good faith, unfair practices of every kind or character, including but not
limited to alleged violations of California Insurance Code section 790.03.”

This language is certainly
unambiguous and broad enough to reveal Williams’s intent to release any right
he might have to a defense or to indemnity against Murphree’s later lawsuit
alleging interference with the use of his sewer line.

The terms of the parties’ agreement
are further evidenced by the correspondence Williams received from North
American leading up to the signing of the release. In its initial letter to Williams following
tender of his claim concerning the sewer line, North American enumerated the
options available to it in resolving the claim, including the one it ultimately
selected, to wit, “[e]nd[ing] the coverage of this Policy for the claim by
paying You Your actual loss resulting from the Covered Risk, and those costs,
attorneys’ fees and expenses incurred up to that time which We are obligated to
Pay. . . .” If North
American chose to pay the claim and end coverage, the letter made clear that
“[b]y so exercising this option [North American] terminates any defense
obligation under the Policy.”

Once the parties began negotiations
with the goal of settling the sewer line and storm drain claims, Williams wrote
to North American on December 26, 2002, stating that he would be willing to
“resolve this matter” by a payment of $23,500.
Absent a settlement, Williams threatened “to bring a civil action
against you and others for breach of contract, abstractor’s negligence,
insurance bad faith, the tort of another, and such other causes of action as
appropriate under the law.” Despite
North American’s agreement to settle and pay Williams the demanded amount,
Williams has now done the very act he told North American he was willing to
forego if the matter was settled—suing it for further relief under the Policy,
including bad faith, arising out to his dispute with his neighbor concerning
the sewer line easement.

Despite the clarity of the release
and related documents, Williams contends that North American is nonetheless
liable to him for a defense and potential indemnity against Murphree’s lawsuit,
under several provisions of the California Code of Regulations, including title
10, section 2695.4, subdivisions (a) and (e).
These regulations indicate a
strong public policy requiring an insurer to affirmatively disclose all
benefits, coverage, time limits or other provisions of any insurance policy
that may apply to the claim and embody a duty to treat an insured in good
faith. Not only
is there no factual support for the alleged regulatory violations, there is no
evidence that any such violations prejudiced Williams in connection with the
settlement and release.

Most importantly, Williams cites no href="http://www.fearnotlaw.com/">legal authority that any such alleged
violations, if proved, would provide a legal defense to a release clear on its
face in relationship to the asserted claim.
In fact, the contrary is true.
Alleged violations of these regulations do not give rise to a private
right of action. (Rattan v. United Services Automobile Assn. (2000) 84 Cal.App.4th
715, 724.)

As to Williams’s contention that he
was assured the settlement and release would not affect his right to later be
defended and indemnified if he were sued, parol evidence is inadmissible to
vary or contradict the clear and unambiguous terms of a written, integrated
contract (Code Civ. Proc., § 1856, subd. (a); Wolf, supra, 162
Cal.App.4th at p. 1126). “ ‘An
integrated agreement is a writing or writings constituting a final expression
of one or more terms of an agreement.’
[Citation.] In California, the
rule is embodied in Code of Civil Procedure section 1856, which states that
“[t]erms set forth in a writing intended by the parties as a final expression
of their agreement with respect to such terms as are included therein may not
be contradicted by evidence of any prior agreement or of a contemporaneous oral
agreement.” ’ [Citation.]” (Alling
v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433.)

Indeed, appellate courts have
consistently excluded evidence that the party seeking to enforce a contract
made promises inconsistent with the contract.
(Bank of America v. Lamb Finance
Co. (1960) 179 Cal.App.2d 498 [promise that defendant would not have any
personal liability on the note]; Banco Do
Brasil, S.A. v. Latian, Inc. (1991) 234 Cal.App.3d 973 [promise to extend a
line of credit as inducement to sign a personal guaranty]; Alling v. Universal Manufacturing Corp., supra, 5 Cal.App.4th at pp. 1433-1435 [promise to comply with
terms of business plan specifically excluded from contract]; >Wang v. Massey Chevrolet (2002) 97
Cal.App.4th 856, 873 [representation contract could be terminated early without
penalty].)

Additionally, Williams specifically
agreed to waive the rights conferred by Civil Code section 1542 (section
1542). Section 1542 reads as
follows: “A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
favor at the time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.”

The agreement entered into by the
parties specifically referred to Civil Code section 1542. “6. To
the extent that Civil Code section 1542 of the State of California may be
applicable to this Release, [Williams] waives, to the full extent permitted by
law, Civil Code section 1542 and any purported right to rely thereon.”

There is additional language in the
release that made it clear that Williams was expressly and intentionally
waiving all unknown, unsuspected and unanticipated claims. For example, paragraph 4 of the release
states as follows: “4. It is understood by [Williams] that the facts
and acts that he believes to exist with regard to this Release may turn out to
be other than or different from facts and acts as he understands them today and
that there may be other facts and acts not known to him or believed by him to
be true. [Williams] expressly assumes
the risk of any and all acts and facts subsequently turning out to be different
and this Release shall be effective and not subject to termination, rescission,
or modification by reason of any difference in fact or facts.”

With regard to claims outside the
parties’ contemplation, the agreement goes on to state: “6.
. . . This Release shall act as a release of all future
claims that arise out of or in any way relate to the matters released hereby whether
such claims are currently known, unknown, foreseen or unforeseen. [Williams] understands and acknowledges the
significance and consequence of such specific waiver of Section 1542 and hereby
assumes full responsibility for any injuries, damages, losses, or liabilities
that he may incur from the above-specified claim.”

Lastly, as we have already noted,
Williams agreed in the release that he was not relying on any written or oral
statement by North American about the scope of the release not specifically
incorporated into the release:

“11.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(b)
[Williams] has not relied upon any statement, representation, or
promise, oral or written of [North American] except as expressly set forth
herein. Any representation, warranty, promise
or condition, whether written or oral, specifically incorporated herein shall
not be binding upon any of the parties hereto.”

The
facts, procedural posture, and issues of Winet v.
Price (1992) 4 Cal.App.4th 1159 (Winet),
mirror those in this appeal and support the trial court’s grant of North
American’s motion for summary judgment. In name="SR;3211">Winet,
as in the present case, the parties settled a lawsuit and negotiated a general name="SR;3228">release as part of that settlement. However, years after executing the name="SR;3240">release, one of the releasing parties
instigated a second lawsuit that fell within the scope of the release. The
defendant in Winet moved for summary judgment in
the second action based on the release obtained in name="SR;3277">settlement of the first action. Like the release at
issue here, “[i]n no fewer than three distinct places the parties declared
their intention to release each other from all
claims, known and unknown, suspected or
unsuspected . . . .”
(Id. at
p. 1166, original italics.) Also,
like Williams, the plaintiff in Winet
expressly waived the protections of section 1542. (Id.
at pp. 1163-1164.)

In affirming the grant of summary
judgment, the Winet court indicated
that “[t]hose engaged in contract law and litigation are in great need of the
availability of ironclad and enforceable general releases.” (Winet,
supra, 4 Cal.App.4th at
p. 1173.) The name="SR;4265">release in name="SR;4271">Winet,
like the release in this case, “is about as complete, explicit and unambiguous
as a general release can be.” (Ibid.) Just as in >Winet, “[o]ur decision to uphold the name="SR;4297">release and enforce it in accord with its literal terms is
in harmony . . . with a beneficial principle of contract law: that
general releases can be so constructed as to be completely enforceable.” (Ibid.) In so holding, the Winet court indicated that the release accomplished its “primary
purpose” of enabling the “parties to end their relationship and permanently
terminate their mutual obligations.” (>Id. at p. 1162.) The present release accomplishes that goal as
well.

Yet, despite the undisputed fact
that the release contained an integration clause, Williams argues that the bar
against the use of parol evidence to vary, add to, or alter the terms of an
integrated written agreement does not
apply because the release was procured by misrepresentation on the part of
North American.href="#_ftn5" name="_ftnref5"
title="">[5] Specifically, he claims that he was told
during the negotiations with North American that Williams would be defended
against any future lawsuit concerning the “encroachments” if he were to be
later named as a defendant. For this
reason, he claims that North American misrepresented the scope of the release
to him.

However, it is well settled
that the fraud exception to the parol
evidence rule does not apply if the
evidence is offered to show an allegedly false promise
which is directly at variance with the terms of the written agreement. name="SR;3950"> (Bank of America, supra, 4 Cal.2d at p. 263; Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 346-347; Wang
v. Massey Chevrolet, supra,
97 Cal.App.4th at p. 873; Alling v. Universal Manufacturing
Corp., supra, 5 Cal.App.4th at
p. 1436; Continental Airlines, Inc. v. McDonnell Douglas Corp.
(1989) 216 Cal.App.3d 388, 419. As our
Supreme Court has sensibly explained, “Our conception of the rule which permits
parol evidence of fraud to establish the invalidity of the instrument is that
it must tend to establish some independent fact or representation, some fraud
in the procurement of the instrument or some breach of confidence concerning
its use, and not a promise directly at
variance with the promise of the writing.”
(Bank of America, supra,
4 Cal.2d at p. 263, italics added.)
In the court’s
view, to allow a writing to be vitiated by parol evidence which contradicts the
terms of the writing “ ‘would be to open the door to all evils name="sp_814_14">that the parol evidence rule was
designed to prevent.’ [Citations.]” (Id. at p. 264.)

The parties’
release was unequivocal in stating Williams fully released North American “from
and against any and all claims, demands, liabilities, obligations, actions and
causes of action of any kind or nature whatsoever relating directly or
indirectly to the Easements . . . .” Williams also agreed that he “has not relied
upon any statement, representation, or promise, oral or written of [North
American] except as expressly set forth herein.” Consequently, Williams cannot recover on a
fraud theory, premised on an alleged oral statement promising a defense in any
third-party action regarding the easement, when such a promise is clearly at
variance with the terms of the parties’ written integrated agreement.

In conclusion, we hold that North
American made a prima facie case that all of Williams’s current claims were
barred by the release and settlement entered into between the parties, and
Williams did not raise an admissible triable issue of material fact to the
contrary. Accordingly, the trial court’s
grant of North American’s motion for summary judgment was proper.href="#_ftn6" name="_ftnref6" title="">[6]

IV.

Disposition

The judgment is affirmed. Costs on appeal are awarded to North
American.



_________________________

RUVOLO,
P. J.



We concur:



_________________________

REARDON, J.



_________________________

SEPULVEDA, J.href="#_ftn7" name="_ftnref7" title="">*