Cruz v. Bank of America
Filed 1/6/14 Cruz v. Bank of America CA2/6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
MICHAEL S.
CRUZ et al.,
Plaintiffs and Appellants,
v.
BANK OF AMERICA,
N.A. et al.,
Defendants and Respondents.
2d Civil No. B247763
(Super. Ct. No. CV110315)
(San Luis Obispo
County)
Michael
S. Cruz and Rebecca J. Cruz appeal from an order enforcing a
N.A., Bank of American Home Loans, BAC Home Loans Servicing, L.P.,
Reconstruct Company, N.A., Alternative
Loan Trust 2005-J11 (erroneously sued as C. Walt, Inc.), and Bank of New York
Mellon. (Code Civ. Proc., § 664.6.) Appellants contend that the trial court erred
in not rescinding the settlement agreement based on fraud, mistake, or public
policy grounds. We affirm.
On May 23, 2011, appellants sued respondents for contract and fraud damages after
defaulting on a $486,000 deed of trust. The
complaint alleged that Bank of America, N.A. (BoA) breached its agreement to
suspend the foreclosure sale, accepted mortgage payments, and fraudulently
represented that appellants' home loan would be modified. Appellants claimed the foreclosure was based
on a "securitized" promissory note and that respondents "no
longer hold legal title to the securitized property" and were conducting a
fraudulent foreclosure.
On April 19, 2012, the parties entered into a mediated settlement agreement providing
that appellants would be paid $10,000 and could remain on the property until August 31, 2012, at which time it would be sold at a trustee's sale. Pursuant to the settlement agreement, the
trial court dismissed the action on June 7, 2012, and
retained jurisdiction to enforce the settlement
terms. (Code Civ. Proc., § 664.6.)
On December 27, 2012, respondents filed a motion to enforce the settlement agreement
after appellants refused to vacate the property. Appellants filed a cross motion to set aside
the settlement agreement on the ground that the mediator and their attorney
told them that the trial court had already decided the case against them.
breached a duty to advise them that a mortgage
modification fraud action (the Mackler Qui tam action) was pending against BoA in New York.
The
trial court ruled that statements made during mediation are inadmissible.
(Evid. Code, § 1119, subd. (a) Eisendrath v. Superior Court (2003) 109
Cal.App.4th 351, 358.) It denied the
motion to set aside the settlement agreement and granted respondents' motion to
enforce the settlement agreement.
Appellants were ordered to vacate the premises on or before February 28, 2013.
Discussion
We
review for substantial evidence. (Chan
v. Lund (2010) 188 Cal.App.4th 1159, 1166.)
As in any substantial evidence case, the order is presumed correct and
all intendments and presumptions are indulged to support the judgment on
matters on which the record is silent. (Gee
v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412,
1416.)
There
is no reporter's transcript and the clerk's transcript contains none of the
evidence submitted by respondents in support of the motion to enforce the
settlement agreement or in opposition to appellants' motion to set aside the
settlement. The record on appeal
includes an unsigned declaration, appellants' letter to the court, and
unauthenticated correspondence with BAC Home Loan Services. Because the appeal is tantamount to an appeal
from a judgment roll, it is presumed that ample evidence was presented to
support the trial court's order. (See 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal § 359, pp. 414-415; People v.
American Bankers Ins. Co., (1989) 215 Cal.App.3d 1363, 1369.) The trial court correctly found that anything
said for the purpose of, in the course of, or pursuant to the medication was
inadmissible. (Evid. Code, § 1119, subd.
(a); Foxgate Homeowners' Ass'n, Inc. v. Bramalea California, Inc. (2001)
26 Cal.4th 1, 17-18; Eisendrath v. Superior Court, supra, 109 Cal.App.4th at p. 358.) Likewise, writings prepared for the purpose
of, in the course of, or pursuant to a mediation are in admissible. (Evid. Code, § 1119, subd. (b); 1126; Knight,
et al., Cal Practice Guide, Alternative Dispute Resolution (The Rutter Group2012)
[¶] 3:100.2, pp. 32-214.12 to 3-24.13; Rojas v. Superior Court (Coffin)
(2004) 33 Cal.4th 407, 416.)
The
argument that respondents failed to disclose the New York
is inadmissible and undiscoverable. (
California, Inc., supra, 26 Cal.4th at pp. 17-18.) The corollary to that rule is that evidence
of what was not said is inadmissible.
Appellants fault everyone, even their own attorney for what occurred but
they did agree to dismiss the action and were paid $10,000 to move out before
September1, 2012, at which time the property would be sold. Discussions appellants may have had with
their own attorney are inadmissible in a malpractice action, "even if
those discussions occurred in private,, away from any other mediation
participation." (
Appellants
assert that they recently discovered a pending multidistrict case in Massachusetts that
would be a more favorable forum. At oral
argument appellants requested that this court "rescind" the
settlement agreement, vacate the judgment of dismissal, and turn back the clock
so that appellants can seek relief in Massachusetts. This, however, is an appeal from a judgment
roll. Appellants had their mediation, settled
the matter, and had their day in court.
There is no evidence of fraud or public policy grounds for setting aside
the mediation settlement agreement or judgment.
The judgment is affirmed.
Respondents are awarded costs on appeal.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Charles S.
Crandall, Judge
Superior Court County of San Luis Obispo
______________________________
Joseph
C. Bird, Maheny & Hertel and David L. Hagan, for Appellants.
Jan T.
Chilton, John D. Ives; Navdeep K. Singh; Severson &Wersdon, A Professional
Corporation, for Respondents.
name="_ftn1" title="">[1] The trial court, not knowing
that the case was settled, posted an April 25, 2012
tentative ruling granting respondents' motion for judgment on the pleadings.
