Filed 3/10/16 Hwang v. Chu CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


SANDEE HWANG,

         Plaintiff and Respondent,                                       E062494

         v.                                                              (Super.Ct.No. CIVRS1400359)

LINGER CHU,                                                              OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Affirmed.

         Kenny Tan, Adam Hussein, and Tiffany Garrick for Defendant and Appellant.

         Garrett & Tully, Ryan C. Squire, and Zi C. Lin; Manion Gaynor & Manning and

David Davidson for Plaintiff and Respondent.

         Sandee Hwang (Hwang) filed this action against Linger Chu (Chu). Later, they

both signed a document prepared by Chu’s attorney entitled “Terms of Settlement

Agreement.” When Chu denied having settled the action, the trial court granted Hwang’s

motion to enter judgment pursuant to a settlement. (Code Civ. Proc., § 664.6.)


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       Chu appeals, contending:

       1. Hwang did not deliver the purported settlement agreement and did not

otherwise communicate acceptance.

       2. Hwang either rejected the purported settlement agreement or manifested a

belief that it was not final.

       3. The trial court erred by allowing Hwang to testify at the hearing on the motion.

       We find no error. Hence, we will affirm.

                                             I

                    FACTUAL AND PROCEDURAL BACKGROUND

       Procedural facts are taken from the record. All other facts are taken from the

evidence submitted in support of and in opposition to Hwang’s application to enter

judgment.

       In January 2014, Hwang filed this action against Linger Chu and Frank Chu.

Frank Chu failed to file a timely response, and his default was entered.

       In May 2014, Hwang filed a motion for summary judgment.

       In June 2014, Justin Shrenger became attorney of record for Chu.

       On July 23, 2014, both of the Chus signed a two-page document entitled “Terms

of Settlement Agreement” (Settlement Terms). (Capitalization altered.)

       Also on July 23, 2014, Chu’s attorney (i.e., Shrenger) emailed the Settlement

Terms to Hwang’s attorney. He said: “Attached is the signed settlement terms and

conditions as I understand them. I personally witnessed the clients sign it. I used your


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original proposed letter for all language with the following exceptions pertaining to

matters upon which we separately agreed (or at least I thought as much). I have

impressed upon the client the fact that there is NO TURNING BACK on this settlement.”

He then listed four specific modifications that he had made.

       Hwang signed the Settlement Terms. On August 4, 2014, she filed a notice of

conditional settlement. As a result, the hearing on her then-pending motion for summary

judgment was vacated.

       Negotiations continued. According to Hwang, the open issues were (1) the form

of the judgment to be submitted to the court, and (2) the possibility of a global settlement

that would include a related action. According to Chu, however, Hwang wanted her to

pay more attorney fees, which she would not agree to do.

       On August 22, 2014, Hwang’s attorney sent Chu’s attorney a draft settlement

agreement. It was consistent with the Settlement Terms but lengthier.

       On August 23, 2014, Hwang phoned Chu directly and asked if she was going to

settle the case. Chu said she needed to discuss it with her attorney.

       On August 26, 2014, Chu substituted Kenny Tan as her attorney of record.

According to Tan, Hwang’s attorney never told him that Hwang had signed the

Settlement Terms and never gave him a signed copy.

       On September 4, 2014, Hwang filed an ex parte application to restore the action to

the court’s calendar and to reinstate the motion for summary judgment. That application

was denied.


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       On September 11, 2014, Chu’s attorney advised Hwang’s attorney that Chu would

not agree to the Settlement Terms.

       On September 17, 2014, Hwang filed an ex parte application to enter judgment

pursuant to a settlement agreement. (Code Civ. Proc., § 664.6.)

       Chu filed a written opposition. In it, she argued that the parties did not have an

enforceable settlement agreement because (1) Hwang never communicated her

acceptance of the Settlement Terms, and (2) Hwang’s conduct was inconsistent with the

existence of a settlement agreement.

       At the hearing on the application, the trial court’s tentative ruling was to deny it, in

part because there was no evidence as to when Hwang signed the Settlement Terms.

Hwang’s attorney offered to call her to testify.

       The trial court had the clerk swear in Hwang. She proceeded to testify that she

received the Settlement Terms in July, she signed them the same day, and she returned

the signed Settlement Terms to her attorney. Her attorney stated: “As an officer of the

court, I sent [them] to . . . Shrenger.” The trial court ruled: “The Court is going to

reverse its tentative ruling and grant the motion.”

       Thus, the trial court entered judgment in accordance with the Settlement Terms in

favor of Hwang and against the Chus. Chu filed a motion for new trial, which the trial

court denied.




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                                              II

                          GOVERNING LEGAL STANDARDS

       Code of Civil Procedure section 664.6, as relevant here, 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, . . . the court, upon motion, may enter judgment

pursuant to the terms of the settlement.”

       “Factual determinations made by a trial court on a section 664.6 motion to enforce

a settlement must be affirmed if the trial court’s factual findings are supported by

substantial evidence. [Citations.] Other rulings are reviewed de novo for errors of law.

[Citation.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.)

                                              III

                         COMMUNICATION OF ACCEPTANCE

       Chu contends that Hwang did not deliver the signed agreement nor otherwise

communicate acceptance.

       “In order to constitute a contract, the acceptance of an offer must be

communicated to the offeror.” (Coml. Cas. Ins. Co. v. Ind. Acc. Com. (1953) 116

Cal.App.2d 901, 907.) “A contract in writing takes effect upon its delivery to the party in

whose favor it is made, or to his agent.” (Civ. Code, § 1626; accord, Estate of

Klauenberg (1973) 32 Cal.App.3d 1067, 1071.) However, “[t]he physical transfer of a

document is not indispensable is its validity. . . . [R]etention of an instrument by one of

the parties after both have signed it is not conclusive evidence of its non-delivery. It


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must be considered as delivered if the parties understand it has been executed and is in

operation.” (Kreling v. Walsh (1947) 77 Cal.App.2d 821, 833.)

       Here, Hwang testified that she signed the settlement agreement. Moreover, her

attorney stated in open court, without objection, that he had returned it to Chu’s then-

counsel (Shrenger). “‘ . . . [A]ttorneys are officers of the court, and “‘when they address

the judge solemnly upon a matter before the court, their declarations are virtually made

under oath.’”’ [Citation.]” (People v. Mroczko (1983) 35 Cal.3d 86, 112, disapproved on

unrelated grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Such

“representations of fact, made without objection or rebuttal . . . , properly could sustain

the court’s ruling. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 731.)

       Chu’s attorney (Tan) did not object to nor disagree with the representation. It is

true that, in his declaration, Tan stated that Hwang’s attorney had never provided a copy

of the settlement agreement. However, this fell short of proving that Hwang’s attorney

never gave it to Shrenger.

       Moreover, even aside from Hwang’s attorney’s representation, Hwang filed a

notice of conditional settlement, which was served on Chu (via Shrenger). It stated,

“This entire case has been settled.” This was sufficient to communicate acceptance of the

settlement agreement. Chu did not object that there was no settlement. Thus, both

parties evidently understood that the settlement agreement had been executed and was in

operation. This was sufficient to constitute delivery of the settlement agreement.




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                                               IV

                         HWANG’S SUBSEQUENT CONDUCT

       Chu contends that Hwang either rejected the Settlement Terms or manifested a

belief that they were not final.

       As already noted, Hwang signed and delivered the Settlement Terms. This was a

sufficient manifestation of acceptance. Chu, however, points to three facts, which, she

claims, show that Hwang did not believe the Settlement Terms were binding.

       Again, we must accept the trial court’s factual findings if they are supported by

substantial evidence. “We must . . . view the evidence in the light most favorable to the

prevailing party, giving it the benefit of every reasonable inference and resolving all

conflicts in its favor . . . . [Citations.]” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639,

660.) “The fact that it is possible to draw some inference other than that drawn by the

trier of fact is of no consequence.” (Ibid.)

       First, Chu points to the fact that Hwang’s attorney prepared and sent a new draft

settlement agreement. She concedes, however, that “This new agreement contained the

same terms . . . as well as additional terms.” She also concedes that the proposed

judgment that was included in the draft settlement agreement contained “the same terms

as provided in the [Settlement Terms].”

       The Settlement Terms expressly contemplated the execution of further documents.

For example, they provided for a stipulated judgment, a mutual release of claims, a

disclaimer by Hwang of any interest in certain specified funds, and a declaration by


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Hwang. The draft settlement agreement prepared by Hwang’s attorney therefore

included a proposed stipulated judgment, a proposed mutual release of claims, a proposed

disclaimer by Hwang, and a proposed declaration by Hwang. It also included such new

but boilerplate terms as a further-documents clause, an integration clause, an execution-

in-counterparts clause and a clause listing addresses for purposes of notice. The

Settlement Terms were immediately enforceable, even though they postponed the

drafting of such required and/or typical terms. (Facebook, Inc. v. Pacific Northwest

Software, Inc. (9th Cir. 2011) 640 F.3d 1034, 1037-1038; see also Harris v. Rudin,

Richman & Appel (1999) 74 Cal.App.4th 299, 307-308.)

       Chu also points to the fact that Hwang personally phoned her and asked if she was

going to settle the case. By that time, however, a month had gone by and Chu had not yet

complied with the Settlement Terms. Thus, Hwang had every reason to contact Chu and

to ask what her position was.

       Finally, Chu points to the fact that Hwang filed an ex parte application to have her

motion for summary judgment placed back on calendar. In the application itself,

however, Hwang made it quite clear that, in her view, there was an enforceable

settlement agreement. For example, she stated, “Unfortunately, [Chu] refused to

complete the conditions required by the settlement reached between the parties . . . .” She

also stated, “[I]t appears that [Chu] agreed to the settlement solely for the purpose of

delay . . . .” In a declaration in support of the application, Hwang’s attorney stated:

“[T]he parties had reached a settlement. Pursuant to the settlement, [Chu] was to


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stipulate to a judgment in this action. However, [Chu] did not sign the stipulation to enter

judgment as required by the agreement.”

       Thus, the ex parte application was not inconsistent with a settlement. Quite the

contrary, Hwang explicitly noted that there was a settlement; she simply argued that her

performance under the settlement could be excused by Hwang’s nonperformance.

                                              V

          ALLOWING HWANG TO TESTIFY ORALLY AT THE HEARING

       Chu contends that the trial court erred by allowing Hwang to testify at the hearing.

       Chu, however, forfeited this contention by failing to object at the hearing. (Evid.

Code, § 353, subd. (a).) Chu claims that she had no opportunity to object. Not so.

Hwang’s counsel announced, “Ms. Hwang is here. She will testify under oath . . . .” Chu

could have objected then; she could have objected when Hwang was sworn; and she

could have objected to any of the questions that Hwang was asked.

       Chu also argues that she preserved the issue by raising it in her motion for new

trial. Again, not so. A failure to object immediately also forfeits an asserted error for

purposes of a new trial motion (unless the trial court exercises its discretion in favor of

considering it). (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747; Collins v. Union Pacific

Railroad Co. (2012) 207 Cal.App.4th 867, 883 [Fourth Dist., Div. Two].)

       Separately and alternatively, we also reject this contention on the merits.

       Chu relies on California Rules of Court, rule 3.1306(b), which, as relevant here,

provides: “A party seeking permission to introduce oral evidence . . . must file, no later


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than three court days before the hearing, a written statement stating the nature and extent

of the evidence proposed to be introduced and a reasonable time estimate for the

hearing.” Hwang did not file such a statement.

       California Rules of Court, rule 3.1306(a), however, provides: “Evidence received

at a law and motion hearing must be by declaration or request for judicial notice without

testimony or cross-examination, unless the court orders otherwise for good cause

shown.” (Italics added.) Thus, the trial court had discretion to allow oral testimony sua

sponte. Chu has not shown that it abused that discretion here.

                                            VI

                                      DISPOSITION

       The judgment is affirmed. Hwang is awarded costs on appeal against Chu.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 RAMIREZ
                                                                                       P. J.


We concur:

McKINSTER
                          J.

MILLER
                          J.




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