Filed 7/25/16 Bajan v. Mikos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
MATTHEW BAJAN, JR., et al., D068314
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2008-00094754- CU-FR-CTL) JAN MIKOS, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Richard E. L.
Strauss, Judge. Affirmed.
Jan Mikos and Halina Mikos, in pro. per., for Defendants and Appellants.
Grunsky, Ebey, Farrar & Howell, Thomas N. Griffin and Frederick H. Ebey, for
Plaintiffs and Respondents.
Matthew Bajan, Jr. and Boguslaw Bajan filed a lawsuit against Jan and Halina
Mikos. The parties later entered into a settlement agreement in which the Bajans agreed
to dismiss the lawsuit in exchange for the Mikoses transferring their home to the Bajans,
subject to the Mikoses retaining a life estate in the property. The sole issue on appeal concerns the court's order appointing an elisor to sign
deeds implementing this settlement agreement. The Mikoses contend the order must be
reversed because the deeds are inconsistent with the Settlement Agreement. They also
contend the court erred in granting the motion on an ex parte basis and denying their
continuance request. These contentions are without merit and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
The Bajans (two adult brothers) sued the Mikoses and the representatives of Henry
Lisowski's trust and estate. In their lawsuit, the Bajans alleged the Mikoses and Lisowski
engaged in wrongful conduct (including fraud and forgery) pertaining to their father's
will and estate assets. The Bajans also alleged these parties were responsible for their
father's death. Lisowski later committed suicide.
On October 4, 2011, numerous parties who had claims against the Lisowski estate
and against the Mikoses engaged in a global mediation of all claims asserted in the
various lawsuits, including the Bajans' claims. At the end of the day, all parties agreed to
a comprehensive multi-party written settlement agreement (Settlement Agreement). The
Settlement Agreement provided it was a final resolution of all disputes and controversies
between and among the parties. The Bajans and Mikoses were each represented by
counsel.
1 We summarize only the facts relevant to the appellate issues before us. A more detailed discussion of the facts is contained in our prior unpublished opinion, Bajan v. Mikos (Mar. 19, 2013, D061380) (Bajan I).
2 Under the settlement terms, the Bajans agreed to release their claims against the
Mikoses in exchange for the Mikoses transferring their home (the Property) into an
irrevocable trust which provided the Mikoses with a life estate with the remainder to the
Bajans upon the death of both Mikoses.2 The parties also "agree[d] to execute any
documents necessary to accomplish" this property transfer. The Mikoses signed the
agreement, as did Matthew Bajan on behalf of himself and his brother Boguslaw (who
lives in Poland) under a power of attorney.
About two weeks later, the Mikoses stated their intent to revoke or rescind their
consent to the Settlement Agreement. They claimed their consent resulted from "undue
influence and mistake" and that they did not understand the alternatives and
consequences of the settlement before signing the agreement.
In response, the Bajans filed a motion requesting the court enter judgment on, and
enforce, the Settlement Agreement. (Code Civ. Proc., § 664.6 (§ 664.6).) The Mikoses
opposed the motion on several grounds, including that the agreement was not enforceable
under section 664.6 because one of the brothers (Boguslaw) did not personally sign the
Settlement Agreement and because the agreement was the product of undue influence,
2 Specifically, the agreement stated: "Within 10 days of the court order approving the Settlement, Jan and Halina Mikos will transfer ownership in the [Property] to an irrevocable trust (to be known as the 'Jan and Halina Mikos Irrevocable Trust') or otherwise so as not to trigger reassessment of property taxes, said trust or other transfer to be drafted by the attorney for the Bajan Plaintiffs and subject to the approval of Jan and Halina Mikos, the terms of which trust or other transfer shall include a life estate in favor of Jan and Halina Mikos and distribution of the property after the deaths of both Jan and Halina Mikos to the Bajan Plaintiffs."
3 economic duress, and mistake of fact. After an evidentiary hearing, the court rejected
these contentions, granted the section 664.6 motion, and entered judgment on the
Settlement Agreement.
This court reversed the judgment on appeal. (Bajan I, supra, D061380.) We held
that parties are not entitled to use the expedited section 664.6 procedure to enforce a
settlement agreement unless all parties personally signed the agreement, and that a
signature by an authorized agent does not meet this test. (See Levy v. Superior Court
(1995) 10 Cal.4th 578, 585; Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1122.)
We stated, however, that this conclusion meant "only that the settlement agreement is not
enforceable through the expedited section 664.6 procedure. It does not preclude the
enforcement of the written settlement agreement through other procedural means,
including an amendment of the pleadings or an independent breach of contract action."
(Bajan I, supra, D061380, at p. *2.)
On remand, the Bajans moved to amend the complaint to add a cause of action for
breach of the Settlement Agreement, and requested bifurcation of this claim. The day
before the court was scheduled to rule on this motion, the Mikoses filed for bankruptcy.
After several months of bankruptcy proceedings, the bankruptcy court transferred
the case back to the superior court for a determination on the enforceability of the
settlement between the Mikoses and the Bajans. The superior court then held a "[c]ourt
[t]rial" on the issue of the enforceability of the Settlement Agreement. At the July 2014
trial, the Mikoses were represented by counsel and had an interpreter (their native
language is Polish). The Mikoses testified and presented evidence in support of their
4 claims that their signatures on the Settlement Agreement resulted from duress and they
did not understand what they were signing.
The next month, in August 2014, the court entered an order (August 2014 order)
rejecting the Mikoses' claims and determining the Settlement Agreement was enforceable
by the Bajans "through the remedy of specific performance." The court found the
Mikoses failed to meet their burden to establish the Settlement Agreement resulted from
coercion or duress or that the Agreement was unconscionable. The Mikoses' attorney
signed the order, approving it as conforming to the court's ruling.
The matter then returned to the bankruptcy court. About six months later, the
bankruptcy court issued an order dismissing the bankruptcy case and terminating all stays
related to the case.
Meanwhile, the parties' counsel engaged in discussions regarding the form of the
transfer deeds required by the Settlement Agreement, but the Mikoses ultimately refused
to execute the deeds. In response, on April 20, 2015, the Bajans brought an ex parte
motion seeking an order appointing an elisor to sign the necessary documents to transfer
title under the terms of the Settlement Agreement and the August 2014 order.
In support of this motion, the Bajans submitted a copy of the Settlement
Agreement and their attorney's declaration explaining the history of the litigation.
Counsel stated the only remaining settlement term "is the Mikos Defendants' transfer of
title on the [Property] to the Bajan plaintiffs," and that the action would be dismissed
upon the execution of the deeds. (Capitalization omitted.) As detailed below, the Bajans'
attorney also described the reasons the Bajans were moving ex parte (rather than by a
5 noticed motion), and stated he had given the Mikoses' counsel (David Pomeranz) 28 days'
notice of the hearing and had scheduled the hearing date to accommodate Pomeranz's
schedule.
At the April 22 ex parte hearing, the Mikoses were present and represented by
attorney Pomeranz. The Bajans were represented by their attorney, Thomas Griffin. At
the outset of the hearing, the Mikoses asked the court (through an interpreter) for an
extension of time, stating they wanted a new attorney. Pomeranz said he had been
unaware of the request, but he did not object and urged the court to grant a continuance.
The court asked the Mikoses when they expected to retain a substitute attorney. The
Mikoses responded they did not "exactly know," but they would be "grateful" if the court
postponed the hearing to allow them to seek a new attorney.
The Bajans' attorney strenuously objected:
"Mr. Pomeranz is the attorney of record. We have communicated with him. We set this date pursuant to his calendar. He was representing them in the bankruptcy proceeding, aware of everything. We served him with the moving papers in this, followed up with an email. I came here from San Jose this morning. [¶] [There is] [s]ignificant cost and expense to my client to come down here, arrive, and then suddenly this, and it's just the same pattern that has been occurring in this case for five years, the same pattern that the court found in the bankruptcy proceeding."
The Mikoses' interpreter said the Mikoses are "begging" the court for an
extension, stating they "would like to get different representation" and the Property
"represents 30 years of their life earnings." When the court asked the Mikoses to explain
their need for more time, the interpreter replied: "They basically—in many instances
were not aware of what was going on. Like, they don't understand why it was in
6 bankruptcy. They don't understand why somebody else wants their house. They don't
understand all that. They say that the last time they were here, they didn't have an
interpreter. When the [Settlement Agreement] was signed by them, they didn't know
what they were signing."
The Bajans' counsel countered by directing the court to evidence that the Mikoses
did have an interpreter at the prior hearing, and stated:
"They've made this argument, 'We didn't understand what we signed,' multiple times. It's been rejected multiple times. . . . They were represented by an attorney who spoke Polish. . . .
"I think it is extraordinarily prejudicial, as well as extremely expensive to my client, to keep coming . . . down here, and then having the defendants in the case simply say, 'Oh, we don't know what's going on.' They have been represented by attorneys at every stage of this proceeding. They've never appeared in pro. per. [¶] They've . . . taken it up on appeal. They've gone to bankruptcy on two different bankruptcy filings. At some point, someone has to hold them accountable for what they have done, for the documents to sign, for the orders that have been entered in this case."
The court responded: "I think that's correct. This has been drawn out, drawn out,
and drawn out, and these people have been represented throughout . . . ." The court
stated the Mikoses have not identified a justifiable need for a continuance, and that "the
underlying facts have been determined. What's left is to sign the documents. I'm not
going to reopen things that have already been done." The court also observed that the
Mikoses do not "have any arrangements with [another attorney] to come into this case
and they can't tell me when they would have anyone. If they were going to do that, they
should have made the arrangements and had the attorney here." The court also declined
the Mikoses' request to submit new documents (which their attorney had not seen).
7 The Mikoses' interpreter then said the Mikoses are "asking for [an] extension
because they don't want to give away . . . their house. That's what it is. It's giving it
away." The court said, "That's been determined." The court asked whether there are
"final orders . . . in this case?" And the Mikoses' counsel responded: "Yes, sir. Yes,
Your Honor, your order of August 27, 2014."
The court then stated it would grant the Bajans' motion. Later that day, the court
entered an order appointing an elisor (the San Diego County Superior Court Clerk) to
sign two attached deeds, a grant deed and a quitclaim deed. The grant deed states in
relevant part: "HALINA MIKOS . . . [¶] hereby GRANTS [the Property] to [¶]
MATTHEW BAJAN, JR. and BOGUSLAW BAJAN as tenants in common, while
reserving therefrom a life estate in favor of HALINA MIKOS and JAN MIKOS, subject
to the terms and conditions set forth in the . . . Settlement Agreement in Exhibit B
attached hereto, and incorporated herein by reference." The quitclaim deed states in
relevant part: "JAN MIKOS . . . [¶] hereby [quitclaims the Property] to [¶] MATTHEW
BAJAN, JR. and BOGUSLAW BAJAN as tenants in common, while reserving therefrom
a life estate in favor of HALINA MIKOS and JAN MIKOS, subject to the terms and
conditions set forth in the . . . Settlement Agreement in Exhibit B attached hereto, and
incorporated herein by reference."3
3 This second deed was necessary because during the litigation, Mr. Mikos transferred the Property by quitclaim to Mrs. Mikos. 8 DISCUSSION
I. Appealability
The Mikoses appeal solely from the April 22, 2015 order appointing the elisor.
On our own motion, we raised the issue of whether this order is appealable and provided
the parties an opportunity to brief the issue. The Bajans filed a responsive letter brief, but
the Mikoses did not.
Based on the applicable authorities, we conclude the order is appealable as a
postjudgment order. (See Code Civ. Proc., § 904.1, subd. (a)(2).) Although there has
been no final judgment entered in the action (because the matter was settled), in its
August 2014 order, the court made a final determination of the parties' rights pertaining
to the settlement and determined the settlement is enforceable and binding on the parties.
The Settlement Agreement required dismissal of the action, and thus the court's August
2014 order enforcing the agreement effectively ended the litigation. The order came after
a hearing at which the parties were represented by counsel, filed briefs, submitted
evidence, and provided testimony on the issue whether the Settlement Agreement was an
enforceable contract. The Mikoses' counsel later confirmed the order was intended as a
final order. On the record before us, this order may be treated as a final judgment for
purposes of determining that the later order appointing the elisor is appealable as a
postjudgment order. (See Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53
Cal.App.4th 841, 845-846.)
9 II. Appellate Principles
A fundamental rule of appellate review is that a challenged order is presumed
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown.' " (Ibid.; see In re Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1133.) If the judgment or order is correct on any theory, the appellate court
will affirm it. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777.)
An appeal is not a second hearing or trial. The role of an appellate court is to
determine whether any error occurred, and if so whether that error was prejudicial to the
defendant. Absent a prejudicial error, a Court of Appeal cannot reverse an order or
remand a matter for a new hearing. (See Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 187.) Additionally, the fact the Mikoses are representing
themselves on appeal does not give them greater rights than a represented litigant.
(Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) In propria persona litigants are
presumed to know the applicable rules. (Ibid.)
III. Analysis
A court may appoint an elisor to enforce its orders or judgments. (Blueberry
Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020-1021; Rayan v. Dykeman
(1990) 224 Cal.App.3d 1629, 1635.) If a party "will not or cannot execute a document
necessary to carry out a court order, the clerk of the court, or his or her authorized
representative or designee may be appointed as an elisor to sign the document." (Super.
Ct. San Diego County, Local Rules, rule 2.5.11.)
10 The Mikoses do not challenge the court's authority to appoint an elisor to enforce
its earlier August 2014 order. They instead contend the court erred because the deeds to
be signed by the elisor were inconsistent with the Settlement Agreement. They also
contend the court erred in issuing the order at an ex parte hearing and in refusing to
continue the hearing. As explained below, these contentions are without merit. We also
reject the Mikoses' request that we consider newly submitted evidence.
A. Deeds Are Consistent with Settlement Agreement
The Mikoses contend the court erred in appointing the elisor because they say the
deeds contained conditions inconsistent with the Settlement Agreement terms. The
argument is without merit. The court appointed an elisor to sign the deeds that expressly
incorporated the terms of the Settlement Agreement. The deeds provided that the transfer
of the Property (while reserving a life estate) was "subject to the terms and conditions set
forth in the . . . Settlement Agreement . . . attached [to the deed]." Under these
provisions, the deeds were expressly derived from, and consistent with, the Settlement
Agreement.
In support of their appellate contentions, the Mikoses rely solely on a draft grant
deed that is not the final version of the deed attached to the court's order appointing the
elisor and is not the version of the deeds signed by the elisor.4 The deeds ordered to be
4 We grant the Bajans' request that we take judicial notice of the grant deed and quitclaim deed signed by the elisor (the Clerk of the San Diego County Superior Court). (See Evid. Code, § 452, subd. (c).)
11 signed did not contain the identified deficiencies. Thus, the Mikoses' arguments are
unavailing.
We also reject the Mikoses' contention the court erred in appointing the elisor
because the signed deeds "may fail to prevent property tax reassessment." (Capitalization
omitted.) The Settlement Agreement contains a provision stating the Property is to be
transferred "so as not to trigger reassessment of property taxes." The Mikoses forfeited
this argument because they did not raise it in the proceedings below. (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226.)
Additionally, as the Mikoses admit, there is nothing in the record showing the signed
deeds will trigger a property tax reassessment. To the extent the transfer does trigger a
property tax reassessment, the Mikoses retain their rights (if any) to seek reimbursement
from the Bajans.
The Mikoses next contend the elisor appointment was improper because the
Settlement Agreement states the transfer document will be drafted by the Bajans' attorney
with "approval" by the Mikoses. The Mikoses argue that because they never approved
the deeds, the court erred in appointing the elisor to sign the documents. The argument is
without merit. Viewed in context, this approval provision gave the Mikoses limited
review authority over the transfer document, but did not permit the Mikoses to refuse to
execute the document without any reasonable basis. A contrary conclusion would render
the Settlement Agreement illusory.
12 B. Procedural Challenges Are Without Merit
The Mikoses next contend the court erred by appointing the elisor at an ex parte
hearing and in refusing to provide them with a continuance. These arguments are without
merit.
Generally, an ex parte application requires the moving party to submit evidence
showing "irreparable harm" or "immediate danger." (Cal. Rules of Court, rule
3.1202(c).) In moving for ex parte relief, the Bajans presented their counsel's declaration
stating the court's noticed motion calendar is "significantly impacted" and any additional
delay in executing the deeds would substantially prejudice the Bajans' rights. Counsel
explained that the Mikoses have claimed significant health problems, and that if one or
both of the defendants were to die before the deeds could be signed, this would likely
trigger protracted probate litigation. Counsel also said an expedited hearing was
necessary because the Mikoses had "engaged in a pattern[ ] of transferring ownership of
[the Property] in an attempt to conceal the true ownership, or otherwise frustrate the
terms of the Settlement Agreement," including an interspousal transfer despite the
ongoing litigation.
On this record, the court did not abuse its discretion in deciding the matter on an
ex parte basis. At the ex parte hearing, the Mikoses were represented by counsel. The
Mikoses had 28 days' prior notice of the motion, and the hearing was held on a date
requested by the Mikoses' counsel. The Bajans served the Mikoses with their papers
before their hearing, including a memorandum of points of authorities and supporting
declarations.
13 We also reject the Mikoses' contention the court erred in refusing to continue the
hearing. Trial courts have broad discretion in ruling on continuance motions, and a
reviewing court must uphold the ruling absent an abuse of discretion. (Mahoney v.
Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)
" ' "Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason,
all of the circumstances before it being considered." ' " (Ibid.) In evaluating the court's
ruling, relevant factors include the reasons presented to the trial court for the request,
whether a continuance was necessary to allow the parties to present relevant evidence,
and whether the refusal of a continuance will have the practical effect of denying a fair
hearing. (See In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) An
appellant has the burden of showing an abuse of discretion and prejudice resulting from
the denial of the request. (People v. Barnett (1998) 17 Cal.4th 1044, 1126.)
The court did not abuse its discretion in denying the continuance motion. The
court repeatedly asked the Mikoses for the reason for the continuance. They responded
by reasserting their objections to the Settlement Agreement and/or stating they wanted to
retain a new attorney. The court had a reasonable basis to find these assertions did not
justify additional delay. The court found the Mikoses already had a full and fair
opportunity to assert their objections to their Settlement Agreement at the July 2014
hearing, and had been represented by counsel at the time. The issue at the ex parte
hearing concerned only a narrow issue of enforcing the court's prior order. The Mikoses
did not suggest they were precluded from presenting all relevant evidence on this issue at
the ex parte hearing. Additionally, the court reasonably found the Mikoses' request to
14 retain a new attorney did not justify a continuance, as the Mikoses were raising the issue
for the first time at the hearing (despite 28 days' prior notice of the hearing); the Mikoses
had apparently taken no steps to find a new attorney; and the Mikoses were unable to
identify any reasonable basis that they needed a new attorney.
C. Additional Materials Are Not Properly Before this Court
The Mikoses did not file a reply brief, but after the deadline for filing a reply brief,
they filed 75 pages of new materials. These materials include the Mikoses' lengthy joint
declaration (prepared after they filed their opening brief in this case) in which they
reassert many of their prior arguments challenging the Settlement Agreement and ask this
court to issue a ruling "so [they] can keep the house as theirs." Many of the attached
documents are dated more than 18 years ago.
We decline to consider the Mikoses' declaration or the attached materials. First,
they are untimely. Absent good cause, a party cannot submit new materials after the
statutory briefing deadlines. The Mikoses did not present any grounds showing good
cause for the untimely filing. Second, there is no indication that these materials were
before the trial court when it ruled on the Bajans' motion. Thus, we are precluded from
considering them. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434, 444, fn. 3; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.)
Third, the materials do not appear to be relevant to the issues before us, concerning the
court's authority to appoint an elisor to implement the terms of its prior order. The
documents refer mainly to the enforceability of the Settlement Agreement, and the court's
ruling on that issue has long been final.
15 DISPOSITION
Affirmed. Appellants to bear respondents' costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.