Filed 1/6/14 Cruz v. Bank of America CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


MICHAEL S. CRUZ et al.,                                                       2d Civil No. B247763
                                                                           (Super. Ct. No. CV110315)
 Plaintiffs and Appellants,                                                 (San Luis Obispo County)

v.

BANK OF AMERICA, N.A. et al.,

 Defendants and Respondents.



                   Michael S. Cruz and Rebecca J. Cruz appeal from an order enforcing a
mediation settlement agreement to dismiss their fraud action against Bank of America,
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
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their attorney told them that the trial court had already decided the case against them.
Appellants also claimed that respondents 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.)



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.


                                             2
              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 Qui tam
action is without merit. Pursuant to Evidence Code section 1119 anything said during
mediation is inadmissible and undiscoverable. (Foxgate Homeowners' Assn., Inc. v.
Bramalea 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." (Cassel v. Superior Court (2011) 51 Cal.4th 113, 123.)
              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


                                              3
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.




                                             4
                              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.




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