Escamilla v. Escamilla
Filed 10/3/13 Escamilla v. Escamilla CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
CARLOS ESCAMILLA, SR.,
Plaintiff and Appellant,
v.
CARLOS ESCAMILLA, JR.,
Defendant and Respondent.
B243794
(Los Angeles
County
Super. Ct.
No. MC023432)
APPEAL from
an order of the Superior Court
of
County, Robert A. McSorley, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Carlos
Escamilla, in pro. per., for Plaintiff and Appellant.
No
appearance for Defendant and Respondent.
>
I. INTRODUCTION
Plaintiff,
Carlos Escamilla, Sr., appeals from a July
31, 2012 order sustaining a demurrer by defendant, Carlos
Escamilla, Jr. The order dismissed the
complaint without leave to amend. The
trial court found plaintiff released all claims in this action in a prior
lawsuit. Plaintiff contends he never
agreed to the settlement and the terms are unconscionable. We affirm the order.
II. BACKGROUND
A. Plaintiff’s Allegations In First Lawsuit
This case
involves a settlement of a prior lawsuit.
We begin by setting forth the allegations of the first action. Plaintiff is defendant’s father. Plaintiff owned his home. Plaintiff agreed to give defendant the
residence (“the propertyâ€). In exchange,
plaintiff was permitted to live in the house for the rest of his life. Defendant agreed to pay all bills, and if his
girlfriend moved into the house, to pay rent.
Plaintiff lived with defendant in Canyon Country, California. Plaintiff was recovering from a stroke suffered
a year prior to the gift. Plaintiff
lived in the house for four years.
In 2008,
defendant’s girlfriend moved into the residence. Plaintiff demanded rent payment from
defendant. Defendant refused to pay the
rent. On August 29, 2008, defendant called the police. Defendant falsely accused plaintiff of
committing domestic violence. On September 2, 2008, plaintiff returned
home to find the locks on the property had been changed. Plaintiff temporarily lived with his sister
in hope tensions would subside. Four to
six months later, plaintiff demanded to be allowed to return to the
property. Defendant refused. Plaintiff returned several times to the
property. Defendant’s girlfriend
obtained a temporary restraining order against plaintiff. Eventually, defendant secured a
plaintiff.
B. First Lawsuit And Settlement
On September 22, 2010, plaintiff filed a lawsuit in the
Northern District of Los Angeles County Superior Court. Plaintiff complained of
enrichment and conversion. Defendant
filed his answer on November 23, 2010.
On October 24, 2011, a settlement conference was held. Plaintiff agreed to dismiss his complaint in
exchange for defendant waiving costs and attorney fees. Plaintiff was to receive $2,000 for attorney
fees. The fees were payable to
plaintiff’s attorney’s office on or before January 15, 2012.
Plaintiff also agreed to release all claims. The trial court retained jurisdiction until
all the terms of the settlement were met.
During the record proceedings, plaintiff spoke in English. On October
26, 2011, plaintiff filed a dismissal request. The trial court entered the dismissal on January 11, 2012.
C. Plaintiff’s Allegations In The Second Lawsuit
On May 3, 2012, plaintiff filed a second
lawsuit against defendant. Plaintiff
alleges he suffered a massive stroke in 2003.
Plaintiff lived with defendant at the property. Plaintiff gifted the residence to defendant
in December 2004. In consideration,
plaintiff would always have a place to live.
Defendant
subsequently married. As a result of
plaintiff’s stroke, his speaking was affected and could not think for extended
periods of time. Plaintiff lived at the
property from 2004 through 2008, rent free.
Plaintiff eventually recovered from his stroke.
During the
summer of 2008, defendant changed the locks on the property. Plaintiff was denied access to the residence. The complaint alleges, “Plaintiff believes
that Defendant did these acts because Defendant was beating his then girlfriend
and Plaintiff called the police.†The
property was in defendant’s name. In
April 2009, defendant obtained a restraining order against plaintiff. This denied plaintiff the right to return to
the property and enjoy the benefits of his life estate in the residence. Defendant also reneged on a promise to return
plaintiff’s personal property. Plaintiff
alleges causes of action for contract breach, conversion and intentional severe
emotional distress infliction.
D. Demurrer, Opposition And Reply
On June 21, 2012, defendant
demurred. Defendant argued plaintiff’s
second lawsuit was barred by the affirmative defenses of res judicata and prior
release of claims in open court.
Defendant asserted the allegations raised in this second lawsuit
concerned the same matters at issue in the first lawsuit. Defendant requested judicial notice of: plaintiff’s complaint in the first lawsuit; a
reporter’s transcript of the settlement hearing at which plaintiff was
represented by counsel; and plaintiff’s request for dismissal of the first
action with prejudice.
On July 17, 2012, plaintiff filed his
opposition. Plaintiff contended the judicially
noticed items were not indisputably true.
Plaintiff asserted he:
exclusively spoke Spanish; had limited English-speaking skills; and
never agreed to settle the first lawsuit.
Plaintiff argued no interpreter was present at the hearings. Plaintiff contended none of the terms of the
alleged settlement were read into the record.
On July 23, 2012, defendant filed his
reply. Defendant contended plaintiff had
the opportunity to obtain an interpreter prior to the October 24, 2011 hearing but did not request
one. Defendant asserted the terms of the
settlement were stated into the record and agreed upon by plaintiff. Defendant argued plaintiff was competent in
the use of the English language.
Defendant cited to plaintiff’s pleadings.
E. Hearing And Order
On July 31, 2012, the parties appeared
for the demurrer hearing. Plaintiff
appeared in propria persona and spoke in English. The trial court ruled: the issues in this lawsuit and the prior
action were the same; all of plaintiff’s claims in this case were resolved in
the prior settlement; and there was Civil Code section 1542 waiver of unknown
claims. Defendant gave notice on July 31, 2012. Plaintiff subsequently appealed.
III. DISCUSSION
In
reviewing a demurrer dismissal, we accept as true the complaint’s well-pleaded
allegations. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6;
31 Cal.4th 1074, 1081; Rotolo v. San Jose
Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 320.) We also consider matters which may be
judicially noticed. (
591.) We review the trial court’s ruling
independently. (McCall v. PacificCare of Cal., Inc. (2001) 25 Cal.4th 412, 415;
Cal.App.4th 1350, 1358.)
To begin
with, the prior dismissal with prejudice and release bar the present
action. (Le Parc Community Assn. v. Workers’ Comp. Appeals Bd. (2003) 110
Cal.App.4th 1161, 1169 [dismissal with prejudice]; San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th
1048, 1053 [release].) Also, defendant
secured judicial notice of the reporter’s transcript of the October 24, 2011
settlement proceedings in the prior lawsuit.
During the October 24, 2011 hearing, the
settlement terms were stated in the record:
defendant waived costs and attorney fees; plaintiff received $2,000 in
attorney fees and released all claims in the complaint in the underlying
action, including known or unknown claims in his favor. The trial court asked plaintiff if he agreed
these were the terms of the settlement.
Plaintiff responded, “Yes, your Honor.â€
Thus, the settlement is enforceable in the present lawsuit as would any
contractual arrangement. (
(2013) 56 Cal.4th 1014, 1020; Edwards v.
Arthur Andersen LLP (2008) 44 Cal.4th 937, 954-955.)
Plaintiff
argues he does not understand English very well. This argument has no merit. Plaintiff was represented by counsel. Plaintiff’s pro se pleadings evidence a clear
understanding of English and he appeared in propria persona at the demurrer
hearing at issue in this appeal.
Plaintiff presented no difficulties with understanding the hearing
conducted in English.
Plaintiff
also contends the terms of the October 24, 2011 agreement are
unconscionable. The Court of Appeal has
explained: “Settlement agreements are
governed by contract principles. [Citations.]
A contract or contract term is unenforceable if it is
‘unconscionable.’ [Citation.]
. . . The court determines unconscionability with
reference to the time the contract is entered into, rather than in light of
subsequent events. [Citation.]†(Lanigan
v. City of Los Angeles (2011) 199 Cal.App.4th 1020, 1035;
(2007) 156 Cal.App.4th 138, 145.)
Unconscionability has both procedural and substantive elements. (Armendariz
v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114;
We find no procedural or
substantive unconscionability.
Plaintiff, who was represented by counsel, was present at the settlement
proceeding and affirmed its terms. There
are no facts alleged indicating plaintiff was oppressed or surprised by unequal
bargaining power. The results are also
not overly harsh or one-sided. Plaintiff
received $2,000 for attorney fees and released all his claims pertaining to the
prior lawsuit. Defendant waived all
costs and attorney fees. The demurrer
was properly sustained. And the trial
court did not abuse its discretion by sustaining the demurrer without leave to
amend.
IV. DISPOSITION
The
dismissal order is affirmed. No costs
are awarded on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KRIEGLER,
J.
