Filed 11/5/14 Alkasabi v. Chandler Heights AZ CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
OSAMA A. ALKASABI, D064652
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00099949- CU-FR-CTL) CHANDLER HEIGHTS AZ, LLC,
Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed; motions to dismiss and to declare appellant a
vexatious litigant are denied.
Osama A. Alkasabi, in pro. per., for Plaintiff and Appellant.
ARC IP Law and Ariel J. Sabban for Defendant and Respondent.
Plaintiff and appellant Osama A. Alkasabi appeals from a judgment of dismissal
and an order granting a motion by defendant and respondent Chandler Heights AZ, LLC
(Chandler) to enforce a settlement of the claims in the complaint Alkasabi filed. (Code
Civ. Proc., § 664.6; all undesignated statutory references are to the Code of Civil Procedure.) We affirm the judgment of dismissal and deny Chandler's related motions to
dismiss and to declare Alkasabi a vexatious litigant.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Opinion; Allegations of Complaint
This court previously decided Alkasabi v. Chandler Heights AZ, LLC (Dec. 21,
2012, D061435 [nonpub. opn.]; our prior opinion), denying Chandler's appeal from an
order denying its special motion to strike the complaint. (Anti-SLAPP statute, § 425.16.)
We utilize some of the introductory material from that opinion to provide background for
describing the current issues.
In March 2010, "Alkasabi, a real estate broker, entered into an exclusive listing
agreement with Chandler to sell [certain residential] property. The listing agreement was
set to expire on March 12, 2011. Thereafter, Alkasabi discovered that the square footage
of the property had been embellished. The square footage of the home was claimed to be
3840, when it was actually 3272. In August 2010, Alkasabi met with Chandler's counsel
regarding Alkasabi's discovery of the square footage discrepancy. . . . After the listing
agreement expired, Alkasabi attempted to extend it; however, the parties did not sign
another listing agreement.
"In October 2011, Alkasabi filed this action against Chandler, alleging causes of
action for intentional and negligent misrepresentation, breach of fiduciary duty, breach of
contract and negligence. The causes of action for intentional and negligent
misrepresentation and negligence alleged that Chandler falsely represented certain
characteristics of the property to Alkasabi for the purpose of inducing him to enter into
2 the listing agreement. Alkasabi asserted that Chandler knew its representations to him
regarding the property were false because it alleged these falsehoods as the plaintiff in [a
related] case. Alkasabi claims that he relied on Chandler's false representations by listing
the property for sale and that he was damaged by the loss of his six percent commission.
Alkasabi's breach of fiduciary duty cause of action recast the above allegations, asserting
that Chandler breached fiduciary duties owed to him by failing to disclose the problems
surrounding the property.
"In his breach of contract claim, Alkasabi alleged that he performed all the duties
required of him under the listing agreement, such as marketing the property, hiring an
appraiser to remeasure the square footage, holding open houses, and bringing in cash
buyers. Among other things, he claimed that Chandler breached the listing agreement
and an extension thereto by[] not paying his commission, withdrawing the property from
sale thereby making the property unmarketable during the listing period, claiming it was
unaware of any pending or threatened action that may affect its ability to transfer the
property, and not paying his commission from its funds or escrow proceeds."
On remand from Chandler's unsuccessful appeal of the order denying its special
motion to strike, the trial court heard demurrers and discovery disputes. Chandler cross-
complained against Alkasabi for rescission of the real estate listing agreement, also
claiming Alkasabi had breached his fiduciary duties and engaged in constructive fraud in
the transaction. Alkasabi was representing himself in propria persona. According to the
headings on the various e-mails he has lodged, Alkasabi has a realtor's license and holds
several professional degrees and credentials (e.g., an M.B.A. and a J.D.).
3 After Alkasabi sent out a notice for Chandler's principal's deposition to take place
in Arizona, he cancelled it without notice to opposing counsel. Both for that incident and
for Alkasabi's defective motion to compel further responses to discovery, monetary
sanctions were awarded on May 21, 2013 against Alkasabi, consisting of attorney fees
and expenses totaling $4,276, payable within 30 days of the rulings.
At a judicial settlement conference on June 11, 2013 (Judge Thomas P. Nugent),
Chandler's principal did not attend and no oral settlement was reached at that time.
However, a written settlement agreement (the Agreement) was drafted by the attorney for
Chandler, providing that Alkasabi would receive from Chandler "consideration equal
to . . . $60,000," as payment in full "for any and all monies alleged to be due and owing
as a result of the Dispute between the Parties." In return, Alkasabi would dismiss the
action, while Chandler would dismiss the cross-complaint and waive enforcement of the
$4,276 sanctions awards against Alkasabi.
Drafts of the Agreement were circulated, providing it would become "effective
upon the date of final execution by any Party hereto." Signatures were allowed to be
provided in counterpart, and performance was due 10 days after its effective date. The
Agreement invokes section 664.6 procedures: "The Parties agree and acknowledge that
this Agreement shall be binding and enforceable, and will request under C.C.P. § 664.6
that the court retain jurisdiction in the trial department to implement and enforce this
settlement if the case is dismissed before all terms of the settlement are satisfied."
4 The Agreement states it is made for the benefit of the parties and there are no third
party beneficiaries to it. It provides each party would bear its own attorney fees, except
that fees incurred in enforcement of the settlement agreement would be awarded to the
prevailing party.
There were many difficulties in finalizing the Agreement. Chandler's
representatives signed it June 12, but on June 20, they notified Alkasabi they were
revoking their consent to the Agreement, because he continued to refuse to provide his
signature, and they demanded prompt payment of the sanctions awards. Alkasabi dated
his signature on the Agreement as June 14, 2013. Chandler's principal again signed the
Agreement on June 24, 2013.
After the Agreement was signed, Chandler obtained an assignment of an
outstanding money judgment in favor of Coldwell Banker (not a party here), dated
November 23, 2009, against Alkasabi in another case (the "assigned judgment").
(Alkasabi v. Seahaus La Jolla Owners Association (SDSC No. GIC876598) (the
"Seahaus Case".) A notarized acknowledgment of assignment of judgment stated that the
balance owed on the judgment was $89,000. On July 1, 2013, Chandler filed a notice of
lien in the current action. (§ 708.410 et seq. [governing liens in pending proceedings].)
B. Cross-Motions to Enforce Settlement; Rulings
Alkasabi brought an ex parte request on June 27, 2013 to enforce his
understanding of the Agreement. He provided his own declaration that incorporated
numerous e-mails, stating that he was due a net $60,000 cash payment, which he thought
had been orally arranged and approved at the settlement conference. He argued there was
5 "assent, consent and acceptance of all terms of" and a "meeting of the minds on" the
Agreement. When Chandler supplied Alkasabi with a copy of its recent signature page
for the Agreement, Alkasabi responded that the attempted revocation was ineffective and
that Chandler had breached the Agreement. The record does not show that Alkasabi paid
the $4,276 sanctions to Chandler. The trial court set the matter for hearing.
Chandler brought a cross-motion to enforce the Agreement, contending that its
June 24 signature was an acceptance of Alkasabi's counteroffer. Chandler took the
position that the lien it had recently acquired on any recovery to be obtained in this action
entitled it to set off the assigned judgment against the settlement amount ($60,000).
Chandler's attorney's declaration referenced the exhibits presented in support of its cross-
motion and sought judicial notice of them, including the acknowledgment of assignment
of judgment (the amended Seahaus Case judgment), and an "Acknowledgment of
(Partial) Satisfaction of Judgment" for $60,000 filed in the Seahaus Case.
For the July 26, 2013 hearing on the cross-motions, the trial court issued a
tentative ruling requesting that the parties address, at argument, whether the meaning of
"consideration" as used in the Agreement was reasonably susceptible to more than one
interpretation, and if so, whether there was or was not a meeting of the minds to establish
mutual consent to settle the dispute. At the outset of argument at the hearing, the trial
court swore Alkasabi in as a witness, to acknowledge his pro per status and to ensure the
integrity of the representations that he was making to the court. Alkasabi sought to take
his cross-motion to enforce the Agreement off calendar or to have it denied.
6 The trial court heard argument, addressed the issues and granted the Chandler
motion, as follows: "The—the one and only agreement that the Court is being asked to
enforce is the agreement that both parties acknowledge having been signed at some point
in time, which arose out of the settlement conference before Judge Nugent. [¶] The
disputed language is consideration equal to and what that means. The Court finds that the
reference to 'consideration equal to' is broad enough to encompass the interpretation
being advocated by the defense and is not limited as being advocated by plaintiff."
Alkasabi objected that he was still entitled to a judgment for $60,000, and the
court stated, "Sir, I've heard enough. The Court grants the motion and directs the
judgment be entered in accordance with the reasonably objective terms of the agreement
that at one time both parties asked the Court to enforce. Judgment will be entered
accordingly and all dates vacated. Thank you very much." A final order vacated the
tentative ruling and granted Chandler's motion to enforce the Agreement.
Subsequently, Alkasabi sought reconsideration of the order, arguing there was no
consideration because he did not receive any money. He also claimed there was no
mutual assent, because "you can't have somebody going—after they agree with me—to
buy something else to pay for my debt. That doesn't work that way, Your Honor."
Reconsideration was denied for lack of new facts, and enforcement attorney fees were
awarded to Chandler ($28,970). Judgment was entered dismissing the entire action with
prejudice. Alkasabi appeals.
7 DISCUSSION
I
APPELLATE MOTIONS DEFERRED TO THIS PANEL
During record preparation, Chandler filed a motion to dismiss the appeal, based on
acceptance of benefits principles. It claimed that Alkasabi had accepted the benefits of
the orders (e.g., failing to pay the monetary sanctions due) and he thus waived the right to
appeal. (See Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214 [voluntary acceptance of
benefits of a judgment bars an appeal from it]; Epstein v. DeDomenico (1990) 224
Cal.App.3d 1243, 1246-1248.) Opposition and judicial notice requests were received.
(Evid. Code, § 459.) In an order of December 10, 2013, the motion to dismiss was
deferred to this merits panel.
Previously, this court denied Chandler's motion to strike the opening brief and
appendix. However, Chandler still claims dismissal is appropriate because Alkasabi's
briefing and record are deficient in form and substance. (Cal. Rules of Court, rule
8.204(a)(1)(C) [requiring support of references to matters in the record with citations to
it], all rule references are to these rules unless noted; see also Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246 [failure to do so waives arguments].)
We have also received Chandler's motion seeking a declaration that Alkasabi is a
vexatious litigant who should be subject to some or all of the orders provided in section
391 et seq. (Stay, § 391.6; furnishing of security, §§ 391, subd. (c), 391.3, subd. (a);
dismissal, § 391.4; and/or entry of a prefiling order, § 391.7.) Not only Alkasabi's recent
appellate proceedings are referenced as allegedly vexatious, but also his out-of-state and
8 federal district court and bankruptcy court trial proceedings. (See, e.g., In re R.H. (2009)
170 Cal.App.4th 678, 691-692.) Opposition and reply papers have been received. This
motion was also deferred for decision by this merits panel.
We have examined both motions and considered the relief requested. Under all
these circumstances, we deem it the most appropriate course to exercise our discretion to
deny the motions and to reach the merits of the substantive issues presented.
II
STANDARDS OF REVIEW
A. Appellant's Burden
An appellant has the burden to provide an adequate record and affirmatively to
show reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Ballard v.
Uribe (1986) 41 Cal.3d 564, 574.) All intendments and presumptions are made to
support the judgment on matters as to which the record is silent. (Denham, supra, at
p. 564.) If the judgment or order is correct on any theory, the appellate court will affirm
it regardless of the trial court's reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753,
776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
As an appellant, Alkasabi has the obligation to present substantive arguments on
appeal that are based on applicable authorities and citations to the record, and to attempt
to show the challenged orders lack some adequate factual, legal, or jurisdictional basis.
(See, e.g., Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1245-1247.) Although an
opening brief must "provide a summary of the significant facts limited to matters in the
record," his opening brief is prolix, confusing, and ranges far afield of the issues
9 pertaining to section 664.6. (Rule 8.204(a)(2)(C); see Duarte v. Chino Community
Hospital (1999) 72 Cal.App.4th 849, 856; Banning v. Newdow (2004) 119 Cal.App.4th
438, 453, fn. 6.)
It is well established that "[i]n propria persona litigants are entitled to the same,
but no greater, rights than represented litigants and are presumed to know the [procedural
and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) "We are not
bound to develop appellants' argument for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the contentions as waived." (In
re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Dills v.
Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
B. Requirements for Enforceability of a Purported Settlement Agreement
In relevant part, the text of section 664.6 provides: "If parties to pending litigation
stipulate, in a writing signed by the parties outside the presence of 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 requested by the parties, the court may retain
jurisdiction over the parties to enforce the settlement until performance in full of the
terms of the settlement." This Agreement referenced the enforcement procedures of
section 664.6.
A settlement is valid, binding, and enforceable under section 664.6 if the parties
agreed to all material settlement terms. (Hines v. Luke (2008) 167 Cal.App.4th 1174,
1182-1183.) The role of the court in deciding these summary proceedings is to determine
what terms the parties themselves have previously agreed upon, and not to create or
10 impose material terms. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793, 810 (Weddington); Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206
Cal.App.4th 724, 732.) "The court ruling on the motion may consider the parties'
declarations and other evidence in deciding what terms the parties agreed to, and the
court's factual findings in this regard are reviewed under the substantial evidence
standard. [Citation.] If the court determines that the parties entered into an enforceable
settlement, it should grant the motion and enter a formal judgment pursuant to the terms
of the settlement." (Hines v. Luke, supra, at pp. 1182-1183; Malouf Bros. v. Dixon
(1991) 230 Cal.App.3d 280, 283-284 [trial court has discretion to adjudicate existence of
binding settlement terms upon declarations presented].)
Contract principles apply for analyzing the terms of such an agreement: "A
settlement agreement is a contract, and the legal principles which apply to contracts
generally apply to settlement contracts. [Citation.] An essential element of any contract
is 'consent.' [Citations.] The 'consent' must be 'mutual.' [Citations.]" (Weddington,
supra, 60 Cal.App.4th at pp. 811-812.) Further: " 'The existence of mutual consent is
determined by objective rather than subjective criteria, the test being what the outward
manifestations of consent would lead a reasonable person to believe.' [Citation.]
Outward manifestations thus govern the finding of mutual consent required by Civil Code
sections 1550, 1565 and 1580 for contract formation. [Citation.] . . . The parties'
outward manifestations must show that the parties all agreed 'upon the same thing in the
same sense.' [Citation.] If there is no evidence establishing a manifestation of assent to
11 the 'same thing' by both parties, then there is no mutual consent to contract and no
contract formation." (Weddington, supra, at p. 811.)
C. Ambiguous Term in the Agreement; Review
Since the trial court essentially took evidence from Alkasabi at the hearing, after
having him sworn as a witness, extrinsic evidence was presented about the mutual
understandings of the parties in entering into the Agreement. The tentative ruling noted
that the term in the Agreement, "consideration equal to . . . $60,000" was arguably vague
or ambiguous, and requested argument on the point. To the extent the Agreement
contained ambiguous language, a de novo standard of review applies to the threshold
determination of the ambiguity of its provisions. (Winet v. Price (1992) 4 Cal.App.4th
1159, 1165-1166 (Winet).) We think the trial court had a reasonable basis to determine
that this language was ambiguous and to consider the extrinsic evidence offered.
When considering extrinsic evidence as a means of clarifying an ambiguous
provision, the courts follow these steps: "The decision whether to admit parol evidence
involves a two-step process. First, the court provisionally receives (without actually
admitting) all credible evidence concerning the parties' intentions to determine
'ambiguity,' i.e., whether the language is 'reasonably susceptible' to the interpretation
urged by a party. If in light of the extrinsic evidence the court decides the language is
'reasonably susceptible' to the interpretation urged, the extrinsic evidence is then admitted
to aid in the second step—interpreting the contract." (Winet, supra, 4 Cal.App.4th at
p. 1165.)
12 III
ANALYSIS
A. Procedural Arguments
Alkasabi argues several overlapping objections to the order and judgment
confirming the Agreement. We first address his procedural objection that he was
deprived of an evidentiary hearing. The record shows the trial court swore him in at the
outset of the hearing on the enforceability of the Agreement, and heard his claims. In any
event, the summary procedure of section 664.6 for determining the enforceability of a
settlement allows the use of declarations and argument to the court. The trial court had
before it declarations and lodged documents sufficient to present the relevant issues, and
it followed the appropriate procedure here. (Hines v. Luke, supra, 167 Cal.App.4th at
pp. 1182-1183.) Alkasabi does not discuss the reconsideration ruling and it need not be
addressed here.
Alkasabi seems to seek reopening of the underlying dispute about Chandler's
alleged breach of the exclusive listing agreement in 2010, and he proposes amendments
to his pleadings and argues the amount of damages he still wants. He also relies on the
language of the prior opinion in this case as somehow adjudicating his rights. None of
those arguments is properly before this court. In our prior opinion, we only addressed
specific anti-SLAPP issues, not the merits of the underlying case. (§ 425.16.) The only
issues properly brought before the trial court in 2013, and the subjects of this appeal,
concern the enforceability of the Agreement that addressed the settlement of that
underlying dispute, according to section 664.6 procedures.
13 B. Substantive Arguments
1. Signatures and Revocation
Alkasabi first attacks the existence of any settlement by pointing to the June 20
revocation by Chandler of its June 12 consent to the Agreement, even though Chandler
again signed the Agreement June 24, after Alkasabi did so. An objective standard is used
for determining whether mutual consent to material contract terms was reached, "the test
being what the outward manifestations of consent would lead a reasonable person to
believe." (Weddington, supra, 60 Cal.App.4th at p. 811.) The Agreement provided that
it could be signed in counterpart.
Alkasabi, a sophisticated realtor with several professional degrees (including a
J.D.), signed a copy of the Agreement after negotiating its terms, and he cannot properly
claim surprise or a default from the manner in which the Agreement was still being
finalized during the period when the parties were continuing to negotiate. He has not
shown his offer to settle was withdrawn. When Chandler signed another copy of the
Agreement's signature page, it completed the process of obtaining the consent of the
parties, and this was not shown to exceed the terms of the Agreement.
2. Definition of "Consideration"
Alkasabi argues there was a failure of consideration for the Agreement and it
should be rescinded because there was never a meeting of the minds or mutual consent to
the material terms of the Agreement, on the meaning of the term "consideration."
(Weddington, supra, 60 Cal.App.4th at pp. 810-811 [parties' outward manifestations must
show that the parties all agreed 'upon the same thing in the same sense'].) He thus claims
14 Chandler committed fraud in the inducement to settle when it represented it would pay
$60,000 net cash as "consideration," but it instead obtained the Coldwell Banker assigned
judgment and applied the same $60,000 amount to that balance due, as performance in
supplying "consideration." At argument before the trial court, Alkasabi objected that
buying up another debt was somehow improper.
In support, Alkasabi mainly argues that there was an oral understanding at the
settlement conference (presided over by Judge Nugent) that Alkasabi would be receiving
$60,000 net cash proceeds out of the deal, possibly as a condition precedent to settlement.
He cites to In re Marriage of Assemi (1994) 7 Cal.4th 896, 911 for the concept that a
supervising judicial officer may question the parties regarding their understanding of
terms in a settlement that was reached orally before the court. However, this was not an
oral settlement arrived at in open court, and only a written settlement agreement exists.
In any case, settlement negotiations are privileged and not admissible to show the
negotiated subjects and disposition. (Evid. Code, §§ 1152, 1154.)
The language of the Agreement states that Chandler will supply "consideration
equal to . . . $60,000," as payment in full "for any and all monies alleged to be due and
owing as a result of the Dispute between the Parties." In relevant part, Civil Code
section 1605 defines the term "consideration": "[a]ny benefit conferred, or agreed to be
conferred, upon the promisor, by any other person, to which the promisor is not lawfully
entitled . . . as an inducement to the promisor, is a good consideration for a promise."
15 To the extent the trial court had to consider extrinsic evidence as a means of
clarifying an ambiguous provision in the Agreement ("consideration equal
to . . . $60,000"), it provisionally received Alkasabi's declaration and his sworn evidence
on his intentions and interpretation of the term. The court made specific findings in the
reporter's transcript that both parties had signed the same agreement, and the subjective,
limited interpretation by Alkasabi that he was entitled to cash or "fresh money" was not a
reasonable one. Rather, the term "consideration" was broad enough to encompass
Chandler's reasonably objective interpretation. " 'The existence of mutual consent is
determined by objective rather than subjective criteria, the test being what the outward
manifestations of consent would lead a reasonable person to believe.' " (Weddington,
supra, 60 Cal.App.4th at p. 811.)
Moreover, the assignment and lien procedure used here has not been shown to be
defective or forbidden by the Agreement. Under section 708.410, subdivision (a)(2), a
judgment creditor who has a money judgment against a judgment debtor who is a party to
a (different) pending action may obtain a lien, to the extent required to satisfy that
judgment creditor's money judgment, on the rights of the judgment debtor "to money or
property under any judgment subsequently procured in the action or proceeding."
Section 680.240 defines a "judgment creditor" as "the person in whose favor a judgment
is rendered or, if there is an assignee of record, [meaning] the assignee of record . . . ."
"Assignment of a judgment constitutes an assignment of the debt upon which it
was based." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 734, p. 817.)
Under Civil Code section 1459, an assignment "merely transfers the interest of the
16 assignor. The assignee 'stands in the shoes' of the assignor, taking his or her rights and
remedies, subject to any defenses that the obligor has against the assignor prior to notice
of the assignment." (See 1 Witkin, supra, Summary of Cal. Law, § 735, p. 819.) The
record shows that in the Seahaus Case, Alkasabi independently owed a debt to Coldwell
Banker, apart from his dealings with Chandler. It is not now before us whether both of
the Coldwell Banker abstracts of judgment (recorded Feb. 15, 2008 and Aug. 1, 2011) are
enforceable, in view of the concluding language of the November 23, 2009 amended
judgment that states one final judgment shall incorporate all prior awards and judgments.
The main point here is that nothing in the Agreement prevented Chandler from obtaining
the assignment of the asset of another's final judgment.
Thus, the trial court was justified in treating the assignment of the existing
Coldwell Banker judgment as a separate contractual matter from the underlying
contractual settlement shown in the Agreement. When Chandler applied the disputed
$60,000 amount to another, existing debt of Alkasabi (the assigned judgment), its activity
did not extinguish the effect of that amount as "consideration." Chandler followed the
lien procedure of section 708.410, subdivision (a)(2) to cover the $60,000 amount of
consideration it was providing.
Also, Chandler supplied its own consideration (incurred prejudice) when it gave
up its right to enforce a monetary sanctions award or to pursue its cross-complaint against
Alkasabi. (Civ. Code, § 1605 ["any prejudice suffered, or agreed to be suffered, by such
person, other than such as he is at the time of consent lawfully bound to suffer, as an
inducement to the promisor, is a good consideration for a promise."].)
17 The trial court's construction of the Agreement will be upheld on appeal, so long
as it is reasonable and supported by substantial evidence. (Winet, supra, 4 Cal.App.4th at
p. 1159, 1166; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1632-1633 [" '[I]f the word "substantial" [is to mean] anything at all, it clearly implies
that such evidence must be of ponderable legal significance. Obviously the word cannot
be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of
solid value . . . .' ".].) The trial court had a reasonable basis to accept the meaning urged
by Chandler. It expressly ruled that the cited language was not reasonably susceptible to
Alkasabi's interpretation. (Winet, supra, at p. 1165.) Its factual determinations are
supported by substantial evidence, and the related legal rulings are appropriate.
(Weddington, supra, 60 Cal.App.4th at p. 815.)
Moreover, when Alkasabi points out portions of the evidence that might support
his view of things, it is not equivalent to demonstrating that there was no substantial
evidence in support of the trial court's conclusions that sufficient consideration was
provided to him in return for his promises and performance. Alkasabi has not shown that
the assignment of the other judgment was somehow improper or unenforceable. Instead,
he vaguely contends it was somehow unfair for Chandler to obtain an assignment of the
existing Coldwell Banker judgment, but he has waived such an appellate approach.
" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; In re Marriage of Falcone & Fyke,
supra, 164 Cal.App.4th 814, 830.)
18 3. Third Party Beneficiary Clause in Agreement
Paragraph 11 of the Agreement provides that the named parties to the agreement
are bound by it, and there are no third party beneficiaries of it. Alkasabi points to that
term of the Agreement, and seems to construe Chandler's obtaining of the assigned
judgment as the same as Chandler's granting benefits to a third party (the assignor
Coldwell Banker). However, the concept of a contractual third party beneficiary is
different from a contractual assignment. There are two major types of contractual third
party beneficiaries, an intended beneficiary or an incidental beneficiary. (1 Witkin,
Summary of Cal. Law, supra, Contracts, § 687, p. 773.) This Agreement does not
demonstrate any intention by the parties to create a right to performance in any third
party beneficiary, but instead it clearly states the opposite. The assignment of another
judgment was a separate contractual transaction and did not violate the terms of the
Agreement, even combined with the lien procedure.
In conclusion, Alkasabi has not shown how or why the trial court's conclusions
that he showed objectively ascertainable consent to the material terms of the Agreement
are lacking in any substantial evidence support. (Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632.)
Although Chandler's respondent's brief seeks an award of attorney fees and costs
for settlement enforcement purposes, we decline to decide such a request, which could
properly be brought before the trial court.
19 DISPOSITION
Judgment and underlying orders are affirmed. The ordinary costs on appeal are
awarded to Respondent.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.