Filed 7/21/16 Legado Companies v. Jones CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


LEGADO COMPANIES et al.,                                                B264248

         Plaintiffs and Respondents,                                    (Los Angeles County
                                                                        Super. Ct. No. BC492204)
         v.

DEREK JONES et al.,

         Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle
R. Rosenblatt, Judge. Affirmed.
         Alston & Bird, G. Christian Roux, Jesse M. Jauregui and Jacob A. Dean for
Plaintiffs and Respondents.
         Derek J. Jones in pro. per for Defendants and Appellants.
                                    INTRODUCTION
       Derek Jones and Derek Jones PLC (collectively, Jones) appeal a judgment entered
after Jones defaulted in making payments under a settlement agreement. The sole issue
in this appeal is whether a portion of the settlement constitutes unenforceable liquidated
damages.
       Jones and respondents Legado Companies and Edward M. Czuker (collectively,
Legado) entered into a settlement agreement providing that Jones would pay Legado $2.4
million. However, Legado agreed to accept $2 million as satisfaction of the debt if Jones
made timely payments as required by the settlement agreement. When Jones failed to do
so, Legado sought a default judgment for the full $2.4 million, minus the amount Jones
already had paid. Jones argued that the parties actually agreed to settle their dispute for
$2 million and the additional $400,000 was only owed as liquidated damages in the event
of a default. He further contended that this liquidated damages amount was
unenforceable. The trial court found that the parties agreed to a total settlement of $2.4
million, as reflected in their agreement, and that the $400,000 discount was a negotiated
benefit, and not an unenforceable penalty. We conclude that this factual determination
was supported by substantial evidence, and accordingly affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
A.     Complaint
       Legado Companies is a commercial real estate development company specializing
in mixed-use projects in southern California. Czuker is the Chief Executive Officer of
Legado. Appellant Derek Jones, an attorney, was employed by Legado as in-house
counsel from approximately November 2007 to August 2012 through his law firm Derek
Jones, PLC.
       Legado filed a complaint against Jones1 on September 14, 2012. Legado alleged
that Jones was principally responsible for overseeing the development of a mixed-use real
estate project to be built on land owned by Ventura County. However, in July 2012, the

       1
         The complaint also named as defendants other individuals and entities that are
not parties to this appeal.
                                              2
county terminated the project because Legado had not executed the development in a
timely manner. Legado alleged that, upon further inquiry, it learned Jones had materially
misrepresented the status of the progress of this project, as well as the status of
entitlements and permits on other Legado projects. As a result of these discoveries,
Legado terminated Jones’s employment in August 2012. Legado’s complaint also
alleged additional fraudulent conduct by Jones, which it discovered subsequent to his
termination.
        Legado’s complaint against Jones asserted nineteen causes of action, including
claims for fraud, legal malpractice, breach of fiduciary duty, conversion, and intentional
interference with prospective business advantage. Legado filed a second and third
amended complaint; the third amended complaint was the operative pleading at the time
of the parties’ settlement. Jones filed a cross-complaint against Legado in September
2013.
B.      Settlement Agreement
        The parties settled all claims pursuant to a settlement agreement executed on May
22, 2014. The agreement provided that “Jones on behalf of himself and all Defendants,
will pay Legado Companies and Edward Czuker the sum of $2,400,000 (Two Million
Four Hundred Thousand Dollars) in settlement” in exchange for a mutual release and a
dismissal of all claims. The agreement set forth a schedule with varying installment
amounts to be paid between July 1, 2014 and December 31, 2015. It further provided
that “so long as all payments are timely made in accordance with the following schedule .
. . the amount due shall be discounted to $2,000,000.”
        Under the agreement, Jones also executed a stipulation for entry of judgment
(attached to the agreement as Exhibit A), which Legado could file by ex parte application
in the event that Jones “defaults in making payments pursuant to the terms and conditions
set forth in the Agreement, and said default has not been cured within the time required
by Plaintiffs’ notice of default.” The stipulation for entry of judgment, as well as the
stipulated judgment itself (also approved in substance by Jones as attached to the
settlement agreement), both stated that in the event of a default, the parties agreed to

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entry of judgment in favor of Legado and against Jones “in the amount of TWO
MILLION FOUR HUNDRED THOUSAND DOLLARS ($2,400,000), minus any credits
for payments made prior to any uncured default.”
       Pursuant to the terms of the settlement agreement, the court dismissed the
complaint and cross-complaint on July 3, 2014, retaining jurisdiction to resolve any
disputes arising under the settlement agreement or to enforce the terms of the agreement
pursuant to Code of Civil Procedure section 664.6.2
C.     Jones’s Default
       Between July and December 2014, Jones failed to make any payments in
accordance with the agreement’s payment schedule. On each occasion, Jones and
Legado negotiated an extension of time to make the payments in return for separate
consideration paid to Legado, and amended the settlement agreement accordingly.
During this time, Jones made payments totaling $870,000 under the agreement. Pursuant
to the fifth payment extension, Jones was required to make a payment to Legado of
$450,000 on or before November 30, 2014. When he failed to do so, Legado filed an ex
parte application on December 4, 2014 to enter the stipulated judgment.
D.     Entry of Judgment
       In support of its ex parte application, Legado provided evidence of the parties’
agreement, the payment extensions, and Jones’s failure to make all payments. In his
opposition to the ex parte application, Jones did not dispute that he had failed to timely
pay the installments under the settlement agreement, including the most recent payment
due on November 30, 2014. Instead, Jones claimed that Legado had unreasonably
refused his latest request for an extension and had otherwise “insisted on a number of



       2
         Section 664.6 provides: “If the parties to pending litigation stipulate, in a writing
signed by the parties outside the presence of the court or orally before 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.”
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extortionate and unreasonable terms” in negotiating the prior extensions. Jones did not
dispute the terms of the agreement or the settlement amount of $2.4 million.
       At the hearing on the ex parte application on December 4, 2014, counsel for Jones
noted “some discrepancies with respect to the calculations” regarding the amount owed
under the settlement agreement, but did not otherwise challenge the total amount under
the agreement. The court took the matter under submission and ordered further briefing
regarding Jones’ position “disputing the amount of the Proposed Stipulated Judgment.”
       Jones filed his supplemental brief on December 14, 2014, arguing for the first time
that the parties had agreed to settle the case for $2 million and the additional $400,000
claimed by Legado was a “liquidated damages clause” in the event of late payment.
Jones argued that this $400,000 was an unenforceable penalty and that therefore the court
should credit the settlement payments made by him against $2 million as the principal,
rather than $2.4 million. In his accompanying declaration, Jones stated that he entered
into the settlement agreement, under which he “agreed to make several installment
payments . . . totaling $2,000,000 by the end of 2015.” His declaration did not otherwise
address his contention that the $400,000 was a penalty rather than a discount.
       In its reply, Legado asserted that during the negotiation of the settlement, Jones
proposed the installment payment schedule and requested that the total settlement amount
be discounted from $2.4 million to $2 million if he paid on time. Czuker submitted a
declaration stating that he had been “absolutely clear with Mr. Jones that the settlement
amount was $2,400,000. We never discussed that any part of the $2,400,000 settlement
number included any penalty for Jones’ failure to pay.”
       The court issued its written order on December 26, 2014, finding that “the original
settlement agreement is enforceable as a judgment, was negotiated at arm’s length and is
not unconscionable.” The court further found “the discounted principal of $2,000,000
(two million dollars) from the total principal of $2,400,000 (two million four hundred
thousand dollars) was a negotiated benefit to be conferred for early or on time payment,”
and therefore, that “$400,000 was not an unenforceable penalty as a matter of law.”
Accordingly, the court concluded that Jones was entitled to receive $870,000 in credit

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(reflecting payments made by Jones prior to his default) against the $2.4 million
settlement amount. On March 23, 2015, the court entered Judgment in Legado’s favor in
the amount of $1,530,000 ($2.4 million minus $870,000 paid), plus $12,000 attorneys’
fees against Jones. Jones timely appealed.
                                        DISCUSSION
A.     Standard of Review
       This appeal follows the lower court’s enforcement of the settlement agreement
pursuant to Code of Civil Procedure section 664.6. When ruling on a motion to enforce a
settlement agreement pursuant to this section, “the trial court must determine whether the
parties entered into a valid and binding settlement of all or part of the case.” (Corkland v.
Boscoe (1984) 156 Cal.App.3d 989, 994.) “The proper standard of review, therefore, is
whether the trial court’s ruling was supported by substantial evidence. (See, e.g., Casa de
Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1190.)” (Fiore v.
Alvord, (1985) 182 Cal.App.3d 561, 565.)
B.     The Plain Terms of the Agreement Provide for a $400,000 Discount
       Jones contends that the trial court erred in entering the stipulated judgment using
$2.4 million as the total settlement amount. He contends that $400,000 of that total was
an unenforceable penalty barred by Civil Code section 1671.3 Under that section, “a
provision in a contract liquidating damages for the breach of the contract is valid unless
the party seeking to invalidate the provision establishes that the provision was
unreasonable under the circumstances existing at the time the contract was made.”
(§1671, subd. (b).) A liquidated damages clause will generally be considered
unreasonable, and hence unenforceable under section 1671, if it “bears no reasonable
relationship to the range of actual damages that the parties could have anticipated would
flow from a breach.” (Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 977.)
Thus, according to Jones, the contract provision reducing the settlement amount by
$400,000 for timely payment is effectively a liquidated damages provision adding


       3
           All further statutory references are to the Civil Code unless otherwise indicated.
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$400,000 in the event he failed to pay on time and is therefore unenforceable because it
bears no reasonable relationship to the damages the parties could have anticipated would
result from a breach of the settlement agreement. The threshold question, therefore, is
whether this provision constitutes a discount or liquidated damages.
       The statutory rules of contract interpretation dictate that the mutual intention of the
parties at the time the contract is formed governs interpretation. (§ 1636; AIU Ins. Co. v.
Superior Court (1990) 51 Cal.3d 807, 821-822 (AIU).) In determining this intent, a court
must first look to the language of the contract in order to ascertain its plain meaning.
(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) Courts are required to
consider “[t]he ‘clear and explicit’ meaning of these provisions, interpreted in their
‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special
meaning is given to them by usage.’” (AIU, supra, 51 Cal.3d at p. 822.)
       The court in Jade Fashion & Co. v. Harkham Industries, Inc. (2014) 229
Cal.App.4th 635, 649 (Jade) addressed the same issue that is presented here. Jade
Fashion contracted to sell garments to Harkham Industries, which eventually fell behind
on its payment obligations. (Id. at p. 639.) The parties entered into a written agreement
outlining a payment schedule which provided that if Harkham made its payments on
time, the original debt would be discounted by $17,500 from the total amount owed.
(Ibid.) Although the installments were paid, some payments were not timely. (Id. at p.
640.) Jade refused to apply the discount and ultimately sued Harkham for the balance
owed. (Ibid.) On appeal, Harkham made the same argument Jones presents here: that the
$17,500 discount actually constituted an unlawful penalty under section 1671. (Id. at pp.
645-646.) Division Seven of this District affirmed the trial court’s conclusion that the
discount was not available because of Harkham’s late payments. (Id. at pp. 642, 648-
649.) The express language of the agreement established that “the $17,500 discount was
not liquidated damages for a breach of contract, nor was it an additional payment over
and above any debt that was owed.” (Id. at p. 649.) Instead, “the $17,500 was part of the
$341,628.77 debt which Harkham Industries specifically admitted it owed to Jade
Fashion in both the Agreement and the continuing guaranty.” (Ibid.)

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       Similarly, here, the express terms of the parties’ settlement agreement provide that
the total obligation amount agreed upon was $2.4 million. Paragraph 3 of the settlement
agreement provides that “Jones . . will pay Legado Companies and Edward Czuker the
sum of $2,400,000 (Two Million Four Hundred Thousand Dollars) in settlement.” The
Stipulation for Entry of Judgment states that Jones “has agreed to pay Plaintiffs the sum
of Two Million Four Hundred Thousand Dollars ($2,400,000) over a period of time . . .”
This clear and explicit language mandates the conclusion that the settlement obligation
was for $2.4 million.
       Nor is there any language in the agreement suggesting that the $400,000 was a
punishment or penalty, as Jones now claims.4 The agreement provides that “so long as
all payments are timely made in accordance with the following schedule . . . the
[settlement] amount shall be discounted to $2,000,000 (Two Million Dollars) . . .” The
express language of the agreement accordingly establishes that the $400,000 discount
was not liquidated damages for a breach of contract, nor was it an additional payment
over and above any debt that was owed. Instead, the $400,000 was part of the $2.4
million obligation which Jones agreed he owed Legado in both the settlement agreement
and the stipulation for entry of judgment. The negotiated discount was a potential benefit
that Jones could receive if all payments were timely made. Because Jones failed to do so,
he remained liable to Legado for the full amount of the $2.4 million debt.
       Jones’ attempts to distinguish Jade are unconvincing. Jones highlights several
factual differences between Jade and the instant case, none of which is dispositive to the
court’s conclusion that the provision was a discount rather than a penalty. Jones first
suggests that the court’s reasoning hinged on the fact that the agreement in Jade was
reached pre-litigation and was an agreement to forebear on the collection of a debt rather
that an agreement to settle a disputed claim. However, the court in Jade did not rely on


       4
        We also note that while Jones argues that the discount provision was intended to
be a penalty for late payment, he failed to present any evidence to support that
suggestion. His own declaration merely echoes the agreement to pay the discounted
amount of $2,000,000 in installment payments over two years.
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this fact; instead, the court emphasized that the dispositive factor was that the agreement
did not impose additional, punitive damages in the event of a breach. (Jade, supra, 229
Cal.App.4th at pp. 647-649.) Jones further notes that in Jade the debtors’ obligation was
for an amount tied exactly to a fixed cost of goods. But the crucial issue was whether the
amount of the debt obligation was fixed. As the court in Jade observed, “the contract at
issue here expressly obligated Harkham Industries to pay off the entirety of the original
debt. . . . Because Harkham Industries failed to fully perform under the Agreement . . . it
remained liable to Jade Fashion for the full amount of its . . . debt.”
(Id. at p. 651.) Like the parties in Jade, Jones and Legado entered into a settlement
agreement that obligated Jones to pay a fixed amount. When Jones failed to perform
under the agreement, he remained liable to Legado for the full amount of the settlement.
Finally, Jones suggests that the $400,000 he is required to pay is disproportionate to the
total amount owed, whereas in Jade the amount of $17,500 represented only 5% of the
total debt. Again, this fact is not dispositive. In Jade the enforceability of the $17,500
discount provision did not depend on whether it bore a reasonable relationship to the
actual damages suffered from the late payments because the court determined that it
could not be characterized as a penalty. We reach the same conclusion here.
       In support of his argument that the $400,000 was actually an unlawful penalty
disguised as a discount, Jones relies (as did the appellant in Jade) on three decisions—
Sybron Corp. v. Clark Hosp. Supply Corp. (1978) 76 Cal.App.3d 896, Greentree
Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal.App.4th 495, and Purcell v.
Schweitzer (2014) 224 Cal.App.4th 969 (Purcell). (See Jade, supra, 229 Cal.App.4th at
pp. 646-647.) However, in each of these cases, the parties had negotiated settlement
agreements requiring defendants to pay a fixed amount of additional damages above the
settlement amount in the event of a breach. Those additional damages were found to be
disproportionately higher than the settlement amount. (See Sybron, supra, 76 Cal.App.3d
at p. 898-900; Greentree, supra, 163 Cal.App.4th at pp. 498-500; Purcell, supra, 224
Cal.App.4th at pp. 971-972, 975.) As the court did in Jade, we conclude that these cases
are therefore factually distinguishable from the circumstances presented here.

                                              9
       For example, in Purcell the plaintiff defaulted on an $85,000 loan given by the
defendant lender. (Purcell, supra, 224 Cal.App.4th at p. 971.) The parties entered into a
settlement agreement under which the borrower would pay the lender $38,000, plus 8.5
percent interest, in installments over 24 months. (Ibid.) The agreement further provided
that if payment was not made on time it would be considered a breach of the entire
settlement agreement, and the original liability of $85,000 would be due. (Ibid.) The
borrower was late on a payment, and the lender was granted a default judgment in the
amount of $58,829.35. (Ibid.) Though the agreement also specified that this provision
did not constitute an unlawful “penalty” or “forfeiture,” the court set aside the default
judgment, finding that it constituted an unenforceable penalty because the amount of the
judgment bore no reasonable relationship to the amount of damages the lender would
actually suffer as a result of the borrower’s breach. (Ibid.) The appellate court affirmed,
emphasizing that the penalty was unenforceable because it greatly exceeded the amount
of the underlying settlement. (See Id. at p. 975.)
       Here, the default judgment was for the amount agreed to by both parties in the
underlying settlement. The parties expressly agreed that Jones owed Legado the balance
of $2.4 million – the agreement did not purport to increase the amount of the original
debt owed by Jones if any payments were late. We agree with the court in Jade that
“parties to a contract may not circumvent the public policies embodied in section 1671
merely by labeling a penalty a discount.” (Jade, supra, 229 Cal.App.4th at p.650.)
However, the plain language of the agreement does not support a finding that Legado
intended to penalize Jones by agreeing to forbear on collection of the full amount of the
settlement agreement as long as Jones continued to make timely payments. Thus, under
these circumstances, “section 1671’s restriction on liquidated damages clauses does not
apply, and the enforceability of the [$400,000] discount provision does not depend on
whether it bore a reasonable relationship to the actual damages suffered from the late
payments.” (Jade, supra, 229 Cal.App.4th at p. 649.) Thus, we conclude that the lower
court’s determination that the $400,000 discount provision was not a penalty is supported
by substantial evidence.

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                                  DISPOSITION
      The judgment is affirmed. Respondents are awarded their costs on appeal.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                    COLLINS, J.

We concur:



EPSTEIN, P. J.



WILLHITE, J.




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