Opinion
A166028
10-17-2023
MAX W. GOODWIN et al., Plaintiffs, Cross-defendants and Respondents, v. JAMES N. HARDWICK, Defendant, Cross-complainant and Appellant. JAMES N. HARDWICK, Cross-complainant and Appellant, v. CIVIC JUSTICE, LLC et al., Cross-defendants and Respondents.
NOT TO BE PUBLISHED
Order Filed Date11/2/23
Alameda County Super. Ct. No. HG16836677
ORDER MODIFYING OPINION
THE COURT:
It is ordered that the opinion filed herein on October 17, 2023, be modified as follows:
1. On page 3, second full paragraph, second sentence, change "38-inch right of way dedication" and "one-inch dedication" to "38-foot right-of-way dedication" and "one-foot dedication," respectively, so the sentence reads as follows:
The City required the parties to provide a 38-foot right-of-way dedication as to the portion of the property comprising Balboa Way, along with a one-foot dedication along Thornton Avenue.
2. On page 11, in the carryover sentence from page 10, change the word "obligation" to "obligations," so the sentence reads as follows:
Accordingly, the parties utilized language limiting certain obligations until after subdivision but did not opt to do so in connection with demolition.
There is no change in the judgment.
MARGULIES, ACTING P. J.
Defendant and cross-complainant James N. Hardwick appeals from two orders enforcing a settlement agreement between him and plaintiffs and cross-defendants Max W. Goodwin and Sally Goodwin, individually and as trustees of the Goodwin Family Trust dated September 23, 1993 (Goodwin), and Jeffrey Ratto, and cross-defendants Civic Justice LLC (Civic Justice), and Denova Homes, Inc. (collectively, respondents) to subdivide a jointly owned property. Hardwick contends the trial court erred by ordering him to vacate and demolish a building on the parties' property and sign a parcel map that contradicted the terms of the parties' settlement agreement. We disagree and affirm the orders.
I.
BACKGROUND
Goodwin and Hardwick entered into a settlement agreement to resolve a dispute regarding commercial property located in Fremont, California (the property). Each owned an undivided 50 percent interest in the property. The settlement agreement provided the property would be "physically divided between them in the manner set forth in the map attached hereto as
Goodwin sold an option to purchase its ownership interest in the property to respondent Jeff Ratto, who then assigned that option to his company, respondent Civic Justice.
Exhibit A ...." In connection with the division, the parties agreed to submit an application to the City of Fremont (City) to divide the property, to cooperate with Civic Justice to prepare the subdivision documents, and to execute any documents and "take any action that is reasonably necessary" to effectuate the subdivision. The settlement agreement further provided it was "contingent upon the approval of the Subdivision by the City ....If, through no fault of the Parties, the City . . . does not approve of the Subdivision, then this Agreement shall be null and void ...."
Exhibit A provided an aerial map of the property, with the developed footprint highlighted in blue and a line dividing the property into two halves.
The settlement agreement required Hardwick to terminate all existing tenancies and stated each party "shall be responsible for the demolition of existing structures and improvements" located on their respective portions of the property. The parties "agree[d] to complete the demolition of the existing structures and improvements . . . no later than 3 months after the Subdivision . . . is complete."
"To induce [Goodwin] to enter into this Agreement," Hardwick provided certain warranties and representations, including that "[t]he acreage of the Property is approximately 3.4 acres." The parties also agreed "to cooperate in good faith in carrying out the mutual intentions set forth in this Agreement."
A. First Motion to Enforce the Settlement Agreement
During the subdivision process, the parties learned a portion of Balboa Way, a public roadway adjacent to the property, was included in the property's legal description. The City required the parties to provide a 38-inch right of way dedication as to the portion of the property comprising Balboa Way, along with a one-inch dedication along Thornton Avenue. A civil engineer retained by respondents prepared a revised map showing an equal split of the property excluding those dedication portions, which resulted in shifting the dividing line to" 'equalize'" the lots.
Hardwick objected to the shift of the dividing line. To avoid further delay, the parties revised the map to address Hardwick's objection. The dividing line on this map remained in the same location as depicted in exhibit A to the settlement agreement, and Harwick's proposed lot constituted 1.715 acres, whereas Goodwin's lot constituted 1.666 acres. However, Hardwick refused to sign the revised parcel map application.
The parties filed competing motions to enforce the settlement agreement. The trial court granted respondents' motion, noting respondents were no longer pursuing a lot line adjustment, "[t]he parties agreed to divide the property as shown in Exhibit A to the Agreement," and "[t]he parcel map application has a map that shows the dividing line in the same place as the dividing line in the settlement agreement.... This reflects the objective intent of the parties ...."
Conversely, the court denied Hardwick's motion, which argued the delay in dividing the property constituted a breach and should result in the voiding of the settlement. The court concluded respondents "have made reasonable efforts to purse the division" and Hardwick has not met his burden of showing that the division cannot be completed.
B. Second Motion to Enforce the Settlement Agreement
Hardwick subsequently signed a revised map containing (1) the dedication of the Balboa Way portion of the proposed Goodwin lot to the City, (2) the 1.713/1.666 acre divide caused by the dedication of the Balboa Way portion, and (3) a requirement to cap utilities and demolish the existing building prior to final parcel map recordation.
Following additional discussions with the City, the City requested Balboa Way to be dedicated as a public roadway easement rather than in fee. Accordingly, the parcel map was revised to address this requested change. Hardwick opposed the revised map, asserting it was not a fair division of the property.
Respondents filed a second motion to enforce the settlement agreement. The trial court denied the motion without prejudice and ordered an evidentiary hearing to resolve the various claims around division of the property. Thereafter, Hardwick filed a motion to set aside the settlement agreement based on respondents' failure to complete the subdivision.
Following a 10-day evidentiary hearing, the court granted respondents' motion to enforce the settlement agreement and denied Hardwick's motion to set aside the settlement. The court noted the subdivision line on the proposed map was identical to the subdivision line on the map attached to the settlement agreement, and "[t]he acreage Hardwick bargained for in the settlement agreement is the same on both maps." The court noted that while the parties discovered the property contained an additional .262 acres, that portion is covered by Balboa Way, an active roadway and not developable land. It concluded the settlement's purpose was to equally divide the Cabrillo Shopping Center development rather than the gross acreage. It further explained the revised map only differed from the prior map in that it identified the Balboa Way portion as an easement rather than in fee, and Goodwin's technical ownership of that strip did not change the nature of the property or its division.
The court also concluded it was appropriate to deny Hardwick's motion for the same reasons his prior motion was denied-i.e., Hardwick had not demonstrated the division could not occur" 'through no fault of the parties.'" The court noted Hardwick was asserting a breach of the agreement, for which the appropriate remedy would be enforcing the settlement rather than voiding it. Moreover, the court concluded respondents have made reasonable efforts to divide the property. The court ordered Hardwick to sign the revised map and any other documents reasonably necessary to facilitate division of the property.
Hardwick filed an appeal from this order. This court dismissed the appeal because it did not arise from a final judgment or appealable order.
C. Third Motion to Enforce the Settlement Agreement
After Hardwick signed the tentative parcel map application, the City provided its conditional approval subject to certain requirements. As relevant here, the conditions included demolition of the existing building "prior to the approval of the Final Parcel Map" and removal of all utilities serving existing structures.
Hardwick subsequently refused to sign the demolition permit application and utilities disconnection request. Hardwick asserted such requirements "substantively change the terms of the settlement agreement" because "demolition of the property was to occur only after subdivision, not as a precondition to subdivision."
Respondents filed a third motion to enforce the settlement agreement. They argued Hardwick's refusal to sign a demolition permit application or disconnect utilities bars the City's approval of a final parcel map because the City will not create two new lots while the existing building straddles both lots. Respondents further contended Hardwick's refusal was inconsistent with (1) the terms of the settlement agreement, (2) his prior claim that the building has "no value," and (3) his attorney's confirmation that demolition would occur once the City approved the tentative parcel map.
In response, Hardwick argued the settlement agreement did not require him to demolish the building on the property until after the subdivision is approved. He asserted demolition at this time was inappropriate because the City may not approve the subdivision or the settlement agreement may be set aside.
The court granted the motion, concluding Hardwick "has unreasonably refused to sign the application for issuance of a demolition permit and the request to disconnect utility service to the property." The court noted the City will not approve the final parcel map until the structure that straddles the proposed new property line has been demolished. It further explained the settlement agreement requires Hardwick "to cooperate with Civic Justice in the contemplated subdivision and to execute any and all documents necessary for the approval of the final parcel map." The court also ordered Hardwick to vacate his office in the property so that demolition could occur. Hardwick timely appealed from these orders.
II.
DISCUSSION
A. Applicable Legal Principles
"On a motion to enforce, the court must determine whether the settlement agreement is valid and binding. [Citation.] The court assesses whether the material terms of the settlement were reasonably well defined and certain, and whether the parties expressly acknowledged that they understood and agreed to be bound by those terms. [Citation.] It may interpret the settlement terms and conditions, but it cannot impose terms to which the parties did not agree." (Estate of Jones (2022) 82 Cal.App.5th 948, 952 (Jones).) "The standard of review for an order enforcing a settlement agreement under [Code of Civil Procedure] section 664.6 is de novo." (Weinstein v. Rocha (2012) 208 Cal.App.4th 92, 96.) However, "[a] trial court's determination of factual matters on a motion to enforce settlement is reviewed for substantial evidence." (Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1116.) "[W]e resolve all evidentiary conflicts and draw all reasonable inferences to support the trial court's finding that [the] parties entered into an enforceable settlement agreement and its order enforcing that agreement." (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)
B. Enforceability of Settlement Agreement
1. Order Granting the Third Motion To Enforce the Settlement Agreement
Hardwick contends the trial court erred in ordering him to vacate the premises and authorize demolition on three grounds. First, Hardwick contends requiring him to vacate the property and begin demolition prior to final approval of the subdivision is contrary to the express terms of the settlement. Second, he argues the City's demand for demolition prior to final approval renders his obligations "impracticable and frustrated." Finally, Hardwick asserts the settlement agreement is fatally uncertain and thus unenforceable. We address each argument below.
a. Settlement Terms
Hardwick contends he is not required to vacate and demolish the property until after the City approves the subdivision. He asserts such approval is a condition precedent under the terms of the settlement agreement. We disagree.
"The fundamental goal of contract interpretation is 'to give effect to the mutual intention of the parties as it existed at the time of contracting.' (Civ. Code, § 1636.) To interpret a contract, we look to its language ([Civ. Code,] § 1638) and ascertain the intent of the parties, if possible, based solely on the contract's written provisions ([Civ. Code,] § 1639). In doing so, we apply the' "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" [citation] ....Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.' [Citation.] At the same time, we 'recognize the "interpretational principle that a contract must be understood with reference to the circumstances under which it was made and the matter to which it relates. (Civ. Code, § 1647.)" '" (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 530-531, fn. omitted.) "A contract provision is considered ambiguous when it may be interpreted in two or more ways, both of which are reasonable. [Citation.] The language of a contract, however, must be interpreted as a whole [citation], and a contract cannot be found ambiguous in the abstract." (Duncan v. The McCaffrey Group, Inc. (2011) 200 Cal.App.4th 346, 380, overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1176, 1182.)
"A 'condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises.' [Citations.] Conditions precedent may be created either expressly-by words such as' "subject to"' or 'conditioned upon'-or impliedly. [Citations.] They are generally disfavored and are strictly construed against a party arguing the agreement imposes one. [Citation.] Courts will not interpret a provision as a condition precedent absent clear, unambiguous language requiring that construction." (Jones, supra, 82 Cal.App.5th at p. 953.)
Section 1.e. of the settlement agreement (hereafter section 1.e.) states in part: "This Agreement, including but not limited to, the mutual releases contained herein, is contingent upon the approval of the Subdivision by the City . . ., which condition shall not be waivable by any Party to this Agreement." Hardwick contends this provision makes the final subdivision a condition precedent for demolition of the building. However, Hardwick's interpretation of this provision would make approval of the subdivision a requirement for any steps obligated under the settlement agreement, including submitting the application for subdivision (section 1.c.) and terminating the tenancies (section 3.b.). Obviously, the agreement does not require, for example, a subdivision to occur before the parties submit an application for a subdivision. Such an interpretation would render the entirety of the parties' obligations under the agreement void. (See Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 957 ["An interpretation rendering contract language nugatory or inoperative is disfavored."].)
Rather, section 1.e. must be read in connection with the preceding section 1.d. of the settlement agreement, which requires the parties "to cooperate . . . in the preparation of the Subdivision Documents," "execute any Subdivision Documents necessary to accomplish the Subdivision," and "take any action that is reasonably necessary in order to facilitate and effectuate the processing and recording of the Subdivision." Accordingly, the question is whether demolition of the building prior to final approval could constitute a "reasonably necessary" action.
In interpreting the phrase "reasonably necessary," we first look to the contractual provisions regarding the parties' demolition obligations. Hardwick argues section 3.c. of the settlement agreement (hereafter section 3.c.), which states demolition must occur no later than three months following completion of the subdivision, demonstrates he was not required to demolish the building prior to a subdivision. And, he contends, it would be unreasonable to require demolition prior to the subdivision in case the subdivision did not occur.
However, the plain language of section 3.c. only establishes an end date for demolition. It does not indicate the parties excluded the possibility of demolition prior to subdivision. The only requirements for demolition contained in section 3.c. are (1) that all tenants vacate the property, and (2) the City issues a demolition permit.
Other provisions of the settlement agreement undermine Hardwick's position. For example, section 4.b., which addresses contamination remediation, provides: "After the Subdivision is completed, Hardwick shall be solely responsible for all Contamination located on, in or under the Hardwick Property .... [and] Goodwin shall be solely responsible for all Contamination located on, in or under the Goodwin Property." (Italics added.) Accordingly, the parties utilized language limiting certain obligation until after subdivision but did not opt to do so in connection with demolition.
In sum, the express terms of the settlement agreement do not impose a condition precedent requiring the parcel be subdivided prior to demolition of the structure. While it leaves open the possibility that demolition may not occur prior to subdivision, the agreement does not impose an ordered sequence for demolition and subdivision.
b. Whether Demolition Is Reasonably Necessary
As noted above, the only limitation on demolition prior to subdivision is whether such demolition is "reasonably necessary" to effectuate the subdivision. Whether demolition is reasonably necessary presents a question of fact subject to deferential review. (Accord, Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1140 [" 'Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.' "].)
Hardwick contends such demolition cannot be considered reasonably necessary but fails to support his position. Instead, he contends even if demolition were reasonable, section 1.d. of the settlement agreement cannot be interpreted in conflict with sections 1.e. and 3.c. Those sections, he claims, "clearly establish that the Parties only intended to demolish the Property after the approval of the subdivision." But, as discussed above, those provisions do not prohibit demolition.
Here, the record indicates such demolition was reasonably necessary. During its review of the tentative parcel map in 2019, the City noted it would require demolition of the building prior to final approval. Neither Goodwin nor Hardwick objected to this requirement at that time. Rather, the parties worked to address other outstanding issues flagged by the City in connection with the tentative parcel map. In 2020, Goodwin sought to perform an inspection and testing at the property. In response, Hardwick's counsel stated, "[Hardwick] is not comfortable with testing for demolition at this time and asks to postpone it until we are closer to having the subdivision approved." Goodwin's counsel then responded, "We need to complete predemolition surveys to obtain the necessary demolition permit. We already know that a condition of final map approval is demolition of the building." (Italics added.) Hardwick did not raise any objection to demolition as a condition of final map approval. Rather, Hardwick's counsel merely responded, "We need to get the tentative map approved and then we can do the demolition."
The City then approved the tentative parcel map but-as previously indicated to the parties-required that the existing building "shall be demolished from the property prior to the approval of the Final Parcel Map." And, as Hardwick concedes in his brief, demolition was a necessary part of the agreement to subdivide the property "because one building cannot span two lots."
In sum, the City explained such demolition was necessary for final approval of the subdivision, the parties were aware of and had been planning for this requirement, and Hardwick does not identify any alternative method of completing the subdivision without demolition. Under these circumstances, requiring demolition prior to final map approval is both reasonable and necessary. (See Civ. Code, § 1644 ["The words of a contract are to be understood in their ordinary and popular sense ...."]; Black's Law Dict. (11th ed. 2019) [defining "reasonable" as "[f]air, proper, or moderate under the circumstances"]; id. [defining "necessity" as "[s]omething that must be done or accomplished for any one of various reasons"].)
The City initially noted the parties could avoid demolition prior to final map approval if they brought the building into compliance with current code requirements. However, neither party notes this option as a feasible alternative. As Hardwick declared under penalty of perjury, "there is no value to the property in the existing buildings" and he "ha[s] not made any substantial improvements to any building for some time because it would be a waste of money."
Hardwick relies on Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306 to assert the City's demand that the structure be demolished prior to subdivision renders the settlement agreement impractical and frustrates its purpose. We disagree and find the case distinguishable. In Habitat, developers sought to develop certain land into a residential project. (Id. at p. 1312.) To balance the environmental impact of the project, the city required the developers to convey certain land for conservation to a" 'qualified conservation entity approved by the City.'" (Id. at p. 1313.) After the developers entered into an agreement to convey such land to a nonprofit land trust, the city did not approve the land trust as a" 'qualified conservation entity.'" (Id. at pp. 1314-1316.) The developers refused to transfer the property, and the land trust sued for breach of contract. (Id. at p. 1315.) On appeal, the court concluded approval of the land trust as a qualified entity was an implied condition of the contract. (Id. at p. 1335.) The court noted conveying the land would not satisfy the city's conditions for development, which made impractical and frustrated the purpose of the developers' agreement with the land trust. (Ibid.)
Here, however, demolition neither frustrates the purpose of the settlement agreement nor makes performance impractical. The purpose of the agreement is to subdivide the property. A requirement imposed by the City for doing so is demolition of the structure. And, as acknowledged by Hardwick, the agreement contained a demolition provision "because one building cannot span two lots." Accordingly, demolition was both anticipated by the parties and furthers the process of subdividing the property.
c. The Settlement Agreement Is Not Fatally Uncertain
Finally, Hardwick argues the settlement agreement is fatally uncertain because it does not clarify the order in which the material terms are to be performed. He again asserts he would not have agreed to the settlement if he would be required to demolish the building prior to final map approval.
"A settlement is enforceable so long as it is 'sufficiently certain to make the precise act which is to be done clearly ascertainable.'" (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1301.)
Here, the settlement agreement is sufficiently certain. Demolition of the building was an express component of the subdivision process. The parties agreed to take all reasonably necessary steps to facilitate the subdivision which, as discussed above, encompassed the City's demand that the building be demolished prior to approval of the final parcel map. While Hardwick contends he did not intend to demolish the building prior to final approval, he agreed to take all reasonably necessary steps. His alleged failure to comprehend the terms to which he was agreeing does not negate the settlement agreement.
Nor has Hardwick demonstrated the terms of the settlement agreement are uncertain. Hardwick relies on Terry v. Conlan (2005) 131 Cal.App.4th 1445 (Terry) to argue a failure to clarify the means of achieving a settlement agreement's goals renders the agreement uncertain. We find that case distinguishable. In Terry, the parties orally agreed to settle their dispute over a decedent's trust by having the decedent's wife inherit one property and receive income from a second property, and the decedent's children inherit a third property. (Id. at p. 1451.) The parties subsequently disagreed on the terms of the actual settlement agreement and filed separate forms of settlement agreements with the court. (Id. at p. 1452.) The trial court found the terms of the oral settlement enforceable, entered judgment imposing a new trust agreement, appointed an independent manager for the second property, and specified the duties of that manager. (Id. at pp. 1452-1454.)
The Court of Appeal concluded the settlement agreement was not enforceable. (Terry, supra, 131 Cal.App.4th at p. 1459.) The court noted various iterations of the written settlement agreement following the oral agreement contained different iterations of the role of an independent manager for the second property, which demonstrated a lack of agreement by the parties. (Id. at p. 1456.) Likewise, the court noted the final trust was not structured as a QTIP trust, as anticipated by the parties when they made their oral agreement. (Terry, at p. 1457.) The court explained these two issues "were material to the settlement, because they had a significant financial impact on the parties.... This failure to agree to the material means to achieve the goal of the settlement demonstrates the settlement's unenforceability." (Id. at p. 1459.)
Qualified Terminable Interest Property. (26 U.S.C. § 2056(b)(7)(B).)
Here, however, the trial court did not impose new or different terms. The parties agreed to demolish the building as part of the subdivision process and "no later than 3 months after the Subdivision . . . is complete." They also agreed to take all reasonably necessary steps to facilitate the subdivision. Accordingly, the trial court's order requiring Hardwick to obtain demolition permits was in accord with his existing obligations under the settlement agreement.
Moreover, unlike Terry, Hardwick has not demonstrated that the timing of the demolition constituted a material term of the settlement. To the contrary, the settlement agreement made demolition only contingent upon the tenants vacating the property and obtaining a demolition permit. Accordingly, Hardwick has not demonstrated the settlement agreement is fatally uncertain.
Hardwick also declared under oath the building lacked value or utility, thus undermining his claim that the building's demolition would have a material impact.
d. Vacating the Property
Hardwick next argues the trial court erred in ordering him to vacate the property prior to final subdivision. He contends he was not a tenant under the terms of the settlement agreement and thus had no obligation to vacate the property within 60 days. However, he concedes he is required to vacate the property in connection with its demolition.
We need not address whether Hardwick constitutes a tenant under the terms of the settlement agreement. As discussed above, the trial court did not err in ordering Hardwick to obtain a demolition permit and demolish the building in order to facilitate the City's approval of the final parcel map. Thus, the trial court likewise did not err in ordering Hardwick to vacate the property so that demolition could proceed.
2. Order Granting the Second Motion To Enforce the Settlement Agreement
Hardwick also challenges on appeal the trial court's order granting respondents' second motion to enforce the settlement agreement. He contends the trial court erred in requiring him to sign the revised parcel map because it did not conform with the division of property established in the settlement agreement. Instead, Hardwick argues, the revised parcel map improperly allocated Balboa Way entirely to Goodwin, resulting in Goodwin receiving approximately 0.3 additional acres.
Hardwick asserts the court erred by concluding he had to seek rescission of the agreement in a separate lawsuit. We do not reach this issue because we address his arguments on the merits.
First, Hardwick contends the settlement agreement is void because the City did not approve the exact parcel map contained in exhibit A. Hardwick's position is contradicted by the express terms of the parties' settlement. Section 1.e. states the settlement agreement becomes "null and void" only if the City "does not approve . . . the Subdivision," not the specific parcel map. (Italics added.) "Subdivision" is defined in the settlement agreement as "the application for a lot line adjustment, parcel map or subdivision map (the exact mechanism of which to cause the Property to constitute two separate legal lots as specified herein shall be reasonably determined by Civic Justice after consultation with the City)." Accordingly, not only does the agreement not require approval of a specific map, it explicitly provides respondents with authority to determine the "exact mechanism" for achieving the subdivision.
Next, Hardwick argues the parties' failure to include Balboa Way in the property division constitutes a material mistake that must void the settlement agreement. Again, we disagree. Under Civil Code section 1689, subdivision (b)(1), a party may rescind a contract if the party's consent was given by mistake. A mistake of fact arises from "[a]n unconscious ignorance . . . of a fact . . . material to the contract." (Civ. Code, § 1577, subd. (1).) "In establishing a material mistake regarding a basic assumption of the contract, the defendant must show that the resulting imbalance in the agreed exchange is so severe that it would be unfair to require the defendant to perform." (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 282.) While Hardwick asserts the inclusion of Balboa Way is material, he fails to make any showing to support his argument and the record contradicts his position. Balboa Way is not merely undeveloped property. It is an active public roadway that is undevelopable. While Hardwick asserts the City could abandon it at some point in the future, this claim is speculative, and no evidence suggests any likelihood of the City abandoning the roadway.
Hardwick also asserts that mistakes as to the quantity of a property are always material, relying on In re Marriage of Brewer v. Federici (2001) 93 Cal.App.4th 1334. In Brewer, however, the court set aside the parties' marital settlement because the respondent believed there was one pension plan valued at approximately $168,561, when, in fact, there were two pension plans, with a total value of more than $500,000. (Id. at p. 1346.) Here, however, Hardwick has not demonstrated that the mistaken exclusion of Balboa Way correlates to any meaningful value. As noted above, Balboa Way is an active roadway and undevelopable, and the parties were willing to dedicate it to the City in fee at no cost before the City requested an easement. The parties' 50 percent ownership interest correlates to an equal division of the value of the property, which remains materially unchanged by the inclusion of Balboa Way.
Likewise, the mere addition of acreage does not intrinsically represent a material change. The record indicates the parties did not prioritize a perfect division of acreage when settling their dispute. Notably, Hardwick rejected Goodwin's request to create an equal division of acreage when the parties believed Balboa Way would be dedicated to the City in fee, which would have resulted in Goodwin receiving less acreage. Hardwick rejected Goodwin's request on the basis that modifying the subdivision line would violate the settlement agreement. Goodwin did not pursue the issue. Accordingly, the record indicates the parties agreed to a subdivision line as set forth in exhibit A, regardless of how that line impacted the parties' actual acreage. And the current parcel map contains the same subdivision line as set forth in exhibit A. Accordingly, the inclusion of Balboa Way does not indicate a material change to the value of property acquired by each party to the settlement.
Hardwick argues he did not waive his current challenge by signing the prior parcel map. We need not reach this argument because his substantive challenge to the current parcel map fails.
C. Order Denying Continuance
1. Relevant Factual Background
After Hardwick refused to sign the demolition order and vacate the property, respondents filed their third motion to enforce the settlement agreement. Respondents requested the court order Hardwick to immediately vacate and demolish the property. A hearing on the motion was set for August 10, 2022, with a deadline to file an opposition of July 28. On July 26, 11 days after the motion was filed and two days prior to the opposition deadline, one of Hardwick's law firms, Larson LLP, filed a motion to be relieved as counsel due to a breakdown in the attorney-client relationship. The following day, Hardwick's other counsel filed a notice of disassociation, which was signed by Hardwick and terminated that attorney's representation.
Larson LLP filed an untimely, one-page opposition to the motion to enforce, requesting a continuance on the hearing so Hardwick could secure new counsel. The trial court subsequently granted the motion to enforce and denied the request for a continuance, stating: "Defendant has not made any compelling showing in support of his request for a further delay of the subdivision of the property. Defendant's attorneys' current effort to obtain an order allowing them to withdraw from the case is not an adequate reason for a continuance."
2. Analysis
Hardwick argues the court deprived him of a fair hearing on the third motion to enforce when it denied his request for a continuance. Hardwick contends he "was entitled to a continuance to obtain new counsel and file a more thorough opposition brief." In response, respondents assert the court acted reasonably in denying an untimely request for a continuance and could reasonably have concluded "gamesmanship was afoot" based on the timing of the request and subsequent disassociation.
There is no right to a continuance as a matter of law. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Continuances are "disfavored" and may be granted "only on an affirmative showing of good cause." (Cal. Rules of Court, rule 3.1332(c).) Circumstances indicating good cause include "[t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice." (Id., rule 3.1332(c)(4), italics added.) "Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) The party whose continuance request was denied bears the burden of showing an abuse of discretion because of the failure to grant a continuance. (Mahoney, at p. 170.)
Hardwick has failed to meet his burden. Larson LLP presumably was aware that filing a motion to withdraw would not excuse its duty to prepare and file an opposition to the pending motion, and it remained counsel of record while its motion to withdraw was pending. (See Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 230 ["An attorney cannot end the relationship simply by 'ceas[ing] to act' as counsel [citation]. [Citations.] . . . [¶] . . . [U]ntil a motion to withdraw is granted, it cannot be certain that the trial court will sever the attorney-client relationship."].) Moreover, Hardwick's opposition to the motion to enforce identified the same issues currently before this court on appeal, albeit briefly. And nothing in the request for a continuance explains why Larson LLP was unable to fully develop those arguments in the opposition. If circumstances had arisen that prevented Larson LLP from adequately filing a sufficient opposition, it was Hardwick's burden to explain and support his position in his request for a continuance. (See Cal. Rules of Court, rule 3.1332(c).) The trial court could have reasonably concluded Larson LLP's five-sentence request for a continuance, which provided no basis for why its motion to withdraw prevented it from filing more substantive opposition, did not satisfy the necessary affirmative showing that the substitution was required in the interests of justice.
We further note Larson LLP remains Hardwick's counsel of record, including for this appeal.
Hardwick's reliance on Vann v. Shilleh (1975) 54 Cal.App.3d 192 does not alter our analysis. In Vann, the trial court denied the defendant's request for a continuance after granting defense counsel's motion to withdraw on the eve of trial. (Id. at pp. 195-196.) The appellate court reversed, noting the trial judge did not exercise informed judgment, but instead denied the continuance "based solely on a policy against continuances." (Id. at p. 199.) The court held that the trial court had the duty to see that the defendant was protected after the withdrawal of his counsel. (Id. at p. 197.) Here, however, the trial court had not yet granted Larson LLP's request to withdraw as counsel of record, and Hardwick was not forced to represent himself at the hearing on the motion to enforce the settlement agreement.
Hardwick contends his one-page opposition was inadequate to meaningfully present his position. But the responsibility to submit sufficient briefing continued to rest on Larson LLP as Hardwick's counsel while the motion to withdraw was pending. And neither Hardwick nor Larson LLP has explained why Larson LLP was allegedly unable to submit a more extensive opposition. Accordingly, the trial court did not abuse its discretion in denying Hardwick's request for a continuance.
III.
DISPOSITION
The orders are affirmed. Respondents may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
WE CONCUR: BANKE, J., BOWEN, J. [*]
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.