Filed 10/3/13 Escamilla v. Escamilla CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


CARLOS ESCAMILLA, SR.,                                               B243794

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. MC023432)
         v.

CARLOS ESCAMILLA, JR.,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles 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 property”). 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 restraining order against plaintiff.



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                               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 contract breach, fraud, duress,
unjust 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

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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

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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; Schifando v. City of Los
Angeles (2003) 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. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6; Serrano v. Priest (1971) 5
Cal.3d 584, 591.) We review the trial court’s ruling independently. (McCall v.
PacificCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Durell v. Sharp Healthcare (2010)
183 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.” Thus, the
settlement is enforceable in the present lawsuit as would any contractual arrangement.
(Martinez v. Brownco Construction Co. (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

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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; Murphy v. Check’N Go of Cal., Inc. (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;
Lanigan v. City of Los Angeles, supra, 199 Cal.App.4th at p. 1035.)
       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.




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                                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.




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