Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 09CECG02241. Donald R. Franson, Jr., Judge.
Wild, Carter & Tipton and Steven E. Paganetti for Plaintiffs and Appellants.
McDermott Will & Emery and Terese A. Mosher Beluris for Defendant and Respondent.
OPINION
HILL, P.J.
Appellants appeal from a post judgment order compelling them to acknowledge satisfaction of the judgment or, in the alternative, ordering entry of satisfaction of judgment by the clerk. Although respondent tendered full payment of the judgment, appellants contend respondent should have been precluded by judicial estoppel from obtaining an acknowledgement of satisfaction of judgment. Finding no basis for application of the doctrine of judicial estoppel in the circumstances presented, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent, Saint Agnes Medical Center, submitted a demand for arbitration of disputes involving a claim of breach of contract against appellant, Central California Medical Imaging, Inc. and a claim of conversion against appellant, Teresa Chan, M.D. Appellants submitted an answer in the arbitration proceeding and raised contract and tort claims against respondent. On October 17, 2007, after a hearing on appellants’ petition to compel arbitration and consolidate arbitration proceedings, the court entered an order granting that petition. The court ordered that the contract claims be arbitrated, the tort claims be dismissed from the arbitration proceeding without prejudice, and the parties be deemed not to have waived their rights to have their tort claims tried in court before a jury.
On December 18, 2008, appellants filed a complaint in the superior court asserting their tort claims against respondent. In June 2009, the parties arbitrated their contract claims and an award was made in favor of appellants and against respondent in the amount of $697,039, plus prejudgment interest. Appellants petitioned to confirm the arbitration award; respondent opposed the petition and petitioned to vacate or modify the award. The trial court confirmed the arbitration award and entered judgment in favor of appellants.
On November 17, 2009, respondent tendered a check to appellants’ counsel in payment of the judgment. Appellants’ counsel disputed the amount and demanded additional post judgment interest. Respondent’s counsel disagreed that any additional amount was owed, but tendered the additional amount and demanded that appellants execute an acknowledgement of satisfaction of judgment. Between the times the arbitration award was confirmed and the judgment was entered, respondent had amended its answer in the tort action to assert a defense of election of remedies. Beginning on November 20, 2009, appellants’ counsel refused to accept payment of the judgment or to acknowledge satisfaction, asserting that if he did so, an election of remedies would result that might preclude appellants’ recovery in the tort action. He refused to execute the acknowledgement of satisfaction of judgment provided by respondent and attempted to return the checks to respondent.
Respondent filed a motion to compel appellants to acknowledge satisfaction of judgment, or to have the court enter satisfaction of judgment. Appellants opposed the motion, contending the trial court should judicially estop respondent from compelling appellants to execute an acknowledgement of satisfaction of judgment, which they asserted would effect an election of remedies and adversely affect appellants’ tort action. Appellants argued judicial estoppel applied because respondent took one position in this action and an inconsistent position in the tort action. They asserted respondent took the position in the stipulation that gave rise to the October 17, 2007, order that the tort claims would be tried separately and would not be waived; respondent effectively changed its position to appellants’ detriment, however, by later asserting in the tort action that the tort claims were barred by an election of remedies.
The court granted respondent’s motion. It declined to apply the doctrine of judicial estoppel, concluding defendant did not agree to refrain from asserting that a judgment entered on the arbitration award effected an election of remedies or was res judicata in the tort action. Additionally, the potential problem with an election of remedies arose because of appellants’ own actions in having a judgment entered on the arbitration award prior to trial of the tort action.
DISCUSSION
I. Standard of Review
“The interpretation of a statute is a question of law, which we review de novo. [Citation.]” (Jhaveri v. Teitelbaum (2009) 176 Cal.App.4th 740, 749.) To the extent we are required to interpret the statutes governing satisfaction of judgment and acknowledgement of satisfaction of judgment, our review is de novo.
The determination of whether judicial estoppel can apply to the facts is a question of law reviewed de novo. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46 (Blix Street).) The findings of fact on which the application of judicial estoppel is based, however, are reviewed under the substantial evidence standard. (Ibid.) “[J]udicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary.” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422, original italics omitted; italics added.) Thus, if judicial estoppel can apply to the facts of this case, we will review the trial court’s decision not to apply the doctrine for abuse of discretion. (Blix Street, supra, 191 Cal.App.4th at p. 47.)
II. Satisfaction of Judgment
When a judgment debtor has satisfied the judgment, it may require that the judgment creditor acknowledge satisfaction of the judgment; alternatively, it may have the court enter satisfaction.
“(a) If a money judgment has been satisfied, the judgment debtor … may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following:
“(1) File an acknowledgment of satisfaction of judgment with the court.
“(2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand. [¶] … [¶]
“(c) If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.
“(d) If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.” (Code Civ. Proc., § 724.050.)
Respondent tendered two checks to appellants in payment of the judgment amount. Appellants do not dispute that the checks were sufficient to satisfy the judgment in full. Appellants attempted to return the checks to respondent and refused to acknowledge that the judgment had been satisfied.
“A judgment creditor may not refuse to acknowledge satisfaction of a judgment without just cause.” (George S. Nolte Consulting Civil Engineers, Inc. v. Magliocco (1979) 93 Cal.App.3d 190, 194.) The judgment creditor may refuse to acknowledge satisfaction of a judgment when the sufficiency of the amount tendered is disputed. In Schumacher v. Ayerve (1992) 9 Cal.App.4th 1860 (Schumacher), the parties arbitrated claims arising out of an automobile accident. Prior to arbitration, the respondent’s insurer paid appellant the $5,000 available under the medical payments provision of the respondent’s insurance policy. No evidence of that payment was presented during the arbitration. The arbitrator awarded appellant $35,000. The respondent’s insurer tendered $30,000; the appellant refused to execute a satisfaction of judgment until the remaining $5,000 was paid. The trial court offset the $5,000 of medical payments previously made against the judgment amount and ordered entry of satisfaction of judgment. (Id. at p. 1862.)
The appellate court reversed, concluding the respondent was not entitled to satisfaction because the judgment had not been entirely satisfied. The arbitrator’s decision did not include findings of fact, allocate the award among the types of damages sought, or indicate that the award included at least $5,000 for special medical damages. (Schumacher, supra, 9 Cal.App.4th at pp. 1864-1865.) The court held “it was impossible for the trial court to conclude the $35,000 arbitration award was satisfied in fact by the $5,000 in medical payments and the later payment of $30,000. Because the trial court had no factual basis for finding the judgment was actually satisfied, it follows it was error to in effect modify the judgment by ordering entry of satisfaction of judgment in this case.” (Id. at p. 1864.)
The court has ordered that satisfaction of judgment be entered, where the judgment debtor tendered a check in the amount necessary to satisfy the judgment and the judgment creditor refused to accept the check or acknowledge satisfaction of the judgment. In Quintana v. Gibson (2003) 113 Cal.App.4th 89 (Quintana), the parties settled plaintiff’s claims arising out of an automobile accident and had a judgment for the plaintiff for $5,000 entered pursuant to the settlement agreement. The plaintiff’s medical expenses had been paid by his employer’s workers’ compensation insurer. The defendant’s liability insurer paid the workers’ compensation lien and tendered to plaintiff a check for the difference between the settlement amount and the amount of the workers’ compensation lien. The plaintiff refused to sign an acknowledgement of satisfaction of judgment; the trial court granted the defendant’s motion for entry of satisfaction of judgment. (Id. at p. 91.)
Although the appellate court concluded the defendant had not strictly complied with the demand requirements of section 724.050, it also concluded that deficiency did not prejudice the plaintiff because the “plaintiff firmly and with just cause believed that the $2,146 check tendered by defendant did not satisfy the $5,000 judgment, ” so it was unlikely he would have complied even with a proper demand. (Quintana, supra, 113 Cal.App.4th at p. 96.) The court affirmed the order compelling acknowledgement of satisfaction of judgment. (Ibid.)
Appellants do not contend the checks tendered by respondent were insufficient to satisfy the judgment amount or were otherwise deficient. Absent some exception to the statutory requirement for acknowledgement of satisfaction of judgment, respondent established it was entitled to such an acknowledgement. Appellants contend an exception exists; they assert they were justified in refusing to accept and acknowledge satisfaction of judgment by the doctrine of judicial estoppel.
III. Judicial Estoppel
“‘Judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, prevents a party from “asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.”’” (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 490-491 (Daar & Newman).) It “‘“precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citation.] The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.]”’” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) “It is intended to protect the integrity of the judicial process by preventing litigants from playing ‘fast and loose’ with the courts [citation] and, as such, it should be invoked only in egregious cases.” (California Amplifier, Inc. v. RLI Ins. Co. (2001) 94 Cal.App.4th 102, 118.) The doctrine applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.]” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
Appellants contend respondent took inconsistent positions in this proceeding and in the tort action regarding whether appellants can maintain their tort claims. They contend respondent’s position in this proceeding is reflected in the court’s October 17, 2007, order, which provides:
“1. The counterclaims of Petitioners and Respondent that sound in contract … shall be heard in arbitration;
“3. Pursuant to the stipulation of the Respondent and Petitioners, all tort claims and tort counterclaims brought or asserted by Respondent and Petitioners, respectively, in the Arbitration shall be dismissed without prejudice in the pending Arbitration;
“4. The Parties shall not assert any tort claims or tort counterclaims in the Arbitration or other arbitral proceeding absent a subsequent agreement by the Parties to the contrary;
“5. Respondent and Petitioners shall not be deemed to have waived their rights to have their respective tort claims and counterclaims tried before a jury in a court of law. The parties shall be deemed to have preserved such rights.”
Appellants’ judicial estoppel argument is based on the provision of paragraph 5 that appellants did not waive, but preserved, their right to have their tort claims tried in court. They contend that provision is inconsistent with respondent’s subsequent assertion in the tort action that appellants are barred from pursuing their tort claims by their election of remedies.
“Broadly speaking, election of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts. Ordinarily a plaintiff need not elect, and cannot be compelled to elect, between inconsistent remedies during the course of trial prior to judgment. [Citations.] However, if a plaintiff has unequivocally and knowledgeably elected to proceed on one of the remedies he is pursuing, he may be barred recourse to the other. [Citation.]” (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039.) The doctrine of election of remedies “has been sharply criticized as unjust, inequitable and unnecessary.” (Perkins v. Benguet Consolidated Mining Co. (1942) 55 Cal.App.2d 720, 756 (Perkins).) It has been described as “a harsh doctrine … currently looked upon with disfavor by courts and commentators.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Development Co., Inc. (1977) 66 Cal.App.3d 101, 138 (Glendale).) Courts have opined that “[a] person should be entitled to change his alternative remedies until one of his inconsistent rights is vindicated by satisfaction of judgment or by application of the doctrines of res judicata or estoppel.” (Frazier v. Metropolitan Life Ins. Co. (1985) 169 Cal.App.3d 90, 101.) “It has been suggested that the doctrine should be entirely abolished, and that the allied doctrines of res judicata, waiver, merger and estoppel will serve to bar a later action against the same or another party where justice requires the bar. [Citations.]” (Perkins, supra, 55 Cal.App.2d at p. 756.) In California, election of remedies is viewed as “a specific application of the doctrine of equitable estoppel” which “rests on the rationale that when plaintiff has pursued a remedy which is inconsistent with an alternative remedy and thereby causes the defendant substantial prejudice, plaintiff should be estopped from pursuing the alternative remedy.” (Glendale, supra, 66 Cal.App.3d at p. 137.)
Apparently, in respondent’s answer to the complaint in the tort action, it asserted a defense of election of remedies and estoppel, alleging appellants elected their remedy by pursuing their contract remedies to final judgment and appellants should be estopped to pursue inconsistent tort remedies based on the same facts. Appellants contend respondent is taking a position in the tort action that is inconsistent with its position in the arbitration proceeding that appellants preserved their tort claims for jury trial in a court action. They argue respondent should be precluded by judicial estoppel from changing its position and obtaining an acknowledgement of satisfaction of judgment that will effect an election of remedies.
We need not determine whether election of remedies remains a viable defense, whether appellants would be barred from pursuing their tort remedies if they acknowledged satisfaction of the judgment on their contract claims, or whether appellants are barred from pursuing their tort remedies because they had judgment entered on the arbitration award that disposed of their contract claims. Those issues are more properly addressed in the tort action, where the court may determine the effect of entry or satisfaction of judgment in this proceeding on the claims asserted in that action. The issues before this court are whether appellants established the elements for application of judicial estoppel to preclude respondent from obtaining an acknowledgement of satisfaction of judgment and, if so, whether the trial court abused its discretion by declining to apply it.
We believe the issue of judicial estoppel is also more appropriate for determination in the tort action. Judicial estoppel “‘prevents a party from “asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.”’” (Daar & Newman, supra, 129 Cal.App.4th at pp. 490-491.) Thus, the doctrine should be applied in the second proceeding, in this case the tort action, to prevent a party from changing its position there to gain an unfair advantage.
Even if the issue of judicial estoppel was properly raised in response to respondent’s motion to compel acknowledgement of satisfaction of judgment, however, we conclude appellants did not demonstrate the elements giving rise to judicial estoppel existed in this case. Appellants assert respondent’s first position was expressed in the October 17, 2007, order. They repeatedly assert the order was based on a stipulation of the parties. Apparently on that basis, they contend the provisions of the order constitute positions taken by respondent in the arbitration proceeding, for purposes of applying judicial estoppel. The record does not contain a stipulation of the parties agreeing to the terms of the October 17, 2007, order. Counsel for appellants conceded at oral argument that he was not attorney of record for appellants at the time of the order, and he relied on the language of the order as the basis for his contention that respondent stipulated to its terms. Counsel for respondent, however, represented to the court that the reference to the content of the order as a “stipulation” was a mischaracterization. She stated that she was counsel for respondent at the time the order was entered, and the parties were discussing a stipulation, but she did not agree to the form of the order that was submitted or to the statements made in the order.
The order appears to have been prepared by former counsel for appellants; it bears the name and address of a law firm identified as attorneys for appellants. It is not signed by the attorneys for either party, to signify agreement either to its form or to its terms. Only paragraph 3, relating to dismissal of the tort claims, indicates it was based on the stipulation of the parties. Nothing in the order’s language indicates the parties stipulated to the other provisions of the order, including those contained in paragraph 5, which relate to preservation of the right to have the tort claims tried in court. Consequently, appellants did not establish that respondent took a position in the arbitration proceeding on whether or under what circumstances the parties could thereafter pursue their tort claims.
Even if respondent stipulated to the terms of the October 17, 2007, order and thereby took a position on the matters stated in it, appellants did not demonstrate that respondent took a position inconsistent with its later position in the tort action. For judicial estoppel to apply, the positions taken “must be clearly inconsistent so that one necessarily excludes the other.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 960.) The October 17, 2007, order provides that the contract claims will be heard in arbitration, the tort claims will be dismissed from the arbitration proceeding without prejudice, and the parties will not, by virtue of that dismissal, be deemed to have waived their rights to have their tort claims tried in court. Respondent does not contend that dismissal of the tort claims from the arbitration proceeding constituted an election of remedies barring appellants’ tort claims. Rather, respondent contends that an election of remedies was effected when appellants obtained a judgment on their contract claims while the action on the tort claims was still pending. The order contains no provisions or representations concerning the effect of confirmation of an arbitration award or entry of a judgment in either proceeding. It contains no representation that respondent is waiving any defense it might have, other than a claim that appellants “waived their rights to have their … tort claims and counterclaims tried before a jury in a court of law” by dismissing the tort claims from the arbitration proceeding. Thus, there is no substantial evidence to support a conclusion that respondent took two necessarily inconsistent positions in the arbitration proceeding and the tort action. Appellants did not establish the elements necessary to application of judicial estoppel in the trial court. The trial court did not err in declining to apply the doctrine as a basis for denying acknowledgement of satisfaction of judgment.
DISPOSITION
The order granting respondent’s motion to compel appellants to acknowledge satisfaction of judgment or for entry of satisfaction of judgment by the clerk is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: DETJEN, J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.