Opinion
B319923
09-19-2023
In re the Marriage of FARRAH BINUR and AVRAHAM BINUR MASHIAH. v. AVRAHAM BINUR MASHIAH, Appellant. FARRAH BINUR, Respondent,
Joseph S. Socher for Appellant. Joel S. Seidel for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. PD062779, Robert E. Sanchez DuFour, Judge.
Joseph S. Socher for Appellant.
Joel S. Seidel for Respondent.
LAVIN, J.
INTRODUCTION
Respondent Farrah Binur initiated divorce proceedings against appellant Avraham Binur Mashiah in June 2016. The parties came to terms and a stipulated judgment on all issues was entered in September 2019. The stipulation included a provision that Avraham had a limited time (approximately 60 days) in which to assume the mortgage on the couple's residence. According to the stipulation, if Avraham completed the assumption by the stated deadline, he would pay an equalization payment of $50,000 to Farrah and the agreement would be final. If he failed to do so, the stipulated agreement as to all property issues would be void.
As is typical in family law matters, we refer to the parties by their first names in the interest of clarity and intend no disrespect.
Avraham failed to assume the loan by the stipulated deadline. He continued his efforts, however, and ultimately arranged a refinance of the loan 16 months after the deadline. When Farrah refused to sign the papers necessary to facilitate the transaction, Avraham moved to enforce the judgment under Code of Civil Procedure section 664.6. In response, Farrah asked the court to declare the stipulated judgment void as per its plain terms. The court declared the judgment void and set the matter for trial as to property issues. Avraham appeals. Finding no error in the court's ruling, we affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Marital Dissolution and Settlement Agreement
Farrah filed for divorce from Avraham on June 10, 2016. The court entered a judgment regarding all issues on September 16, 2019, pursuant to a marital settlement agreement prepared by Avraham's counsel.
The settlement includes a mutual waiver of spousal support. As for property division, Farrah was to receive a 2019 Toyota Corolla, a full-size bed, a small desk and office chair, personal jewelry, "any household furniture and appliances and items that are necessary to furnish a small apartment," and certain bank accounts and retirement accounts. Avraham was to receive a 2018 Jeep Cherokee, $120,000 designated as "inheritance and disability," all shares, assets, and financial accounts of "B.F.M.A. Enterprises," two retirement accounts, a Wells Fargo credit account debt, and the couple's residence along with the related mortgage.
The settlement agreement requires both parties to "deliver necessary documents including signing and providing all information to change the title of the [couple's residence] to [Avraham's] name." In addition, Avraham was to pay Farrah a $50,000 equalization payment at the time Farrah signed the transfer deed relating to the couple's residence. Importantly for our purposes, the settlement agreement includes the following provision (assumption deadline): "This Settlement is contingent upon the assumption of the mortgage loan by [Avraham.] [¶] In the event the loan is not assumed by [Avraham] by November 25, 2019, this agreement is void, and [Farrah] shall refund the $50,000 to [Avraham] within 10 business days of receiving notice from [Avraham] that the loan assumption has failed. [¶] THERE ARE NO OTHER AGREEMENTS BETWEEN THE PARTIES."
2. Loan assumption is not completed by the deadline; Farrah's request for relief is denied on procedural grounds.
At the time of the settlement, the mortgage loan on the couple's residence was in Farrah's name only, but title to the residence was held jointly. As noted, the settlement agreement awarded the residence and the related mortgage loan to Avraham. In December 2019, the mortgage balance was approximately $270,595.
In connection with a prior loan modification, the lender required that the mortgage be in Farrah's name alone.
Avraham contacted Wells Fargo (the original lender) and Specialized Loan Servicing (the new lender) and attempted to assume the loan but was unable to do so by the assumption deadline. Farrah contacted Avraham's counsel on November 26, 2019, the day after the assumption deadline, informing him that Avraham failed to assume the loan. Accordingly, the agreement regarding the allocation of the residence was void. She indicated she would go to court to request either that the residence be sold or that the parties negotiate a new settlement.
Apparently, Wells Fargo transferred the mortgage loan during the time Avraham requested the loan assumption.
In late December 2019, Farrah submitted a request for order setting aside the portion of the settlement agreement relating to the couple's residence due to Avraham's failure to assume the mortgage loan by the assumption deadline. Farrah requested that the court schedule a limited trial regarding the disposition of the residence. Farrah's request was supported by her declaration, a recent statement from the mortgage servicer, Specialized Loan Servicing LLC, and a copy of correspondence from Wells Fargo Home Mortgage to Avraham indicating that Wells Fargo could not assist him with a mortgage transfer because it was no longer servicing the loan.
In response, Avraham explained that he had been trying diligently to assume and refinance the loan but the lenders had been uncooperative. He also claimed that Farrah refused to sign certain documents necessary to facilitate the assumption. In any event, Avraham asserted, if his failure to complete the assumption by the November 25, 2019 deadline rendered anything void, it was the settlement agreement in its entirety, not solely the disposition of the residence.
This claim is not supported by the evidence Avraham cited in his responsive declaration, which relates to the documents signed in 2006.
In reply, Farrah noted that she had contacted Specialized Loan Servicing and had been told on numerous occasions that they would not approve an assumption of the mortgage loan by Avraham. Instead, he would need to refinance the loan. Farrah also indicated that she could not afford to move out of the couple's residence and was still residing with Avraham in an untenable situation. She requested that the court "bring this limbo to an end by vacating the portion of the Judgment as pertains to the residence and ordering the house to be listed for sale forthwith." Farrah also submitted, for the first time, a memorandum of points and authorities supporting her request for order.
On October 6, 2020, the court denied Farrah's request for order on procedural grounds and without prejudice. Specifically, the court noted that Farrah's request for order was not supported by a memorandum of points and authorities as required by California Rules of Court, rule 3.1113. That failure created a due process issue, as Avraham had not been properly advised of the legal basis for Farrah's request nor had he been provided with an opportunity to respond.
Farrah did not resubmit the request for order.
3. Avraham continues efforts to assume the mortgage; Farrah refuses to sign grant deed transferring her interest in the residence to Avraham.
Avraham continued his efforts to assume the mortgage loan. He was initially unsuccessful, however, "because of the inability of the lenders (Wells Fargo and Specialized Loan Servicing) to work on the case and do what they were supposed to do in order to make the assumption go through, notwithstanding the fact that they had the settlement agreement, and all the paperwork from the Court and all of [the] necessary documents."
Although Farrah had not signed (or been asked to sign) any paperwork transferring the couple's residence and the mortgage loan to Avraham, Avraham sent the $50,000 equalization payment, in the form of a cashier's check, to Farrah in late August 2020. Farrah's counsel initially retained the check but, due to counsel's concern that the check might be lost or cashed by an unauthorized person, Farrah deposited it in late February 2021.
Eventually, Avraham was able to find a lender to refinance the mortgage loan in his name alone. On March 16, 2021, a senior loan consultant at United National Mortgage sent a letter to Farrah and her counsel. The letter stated that the consultant was working with Avraham on a refinance relating to the couple's residence. In order to close the transaction, Avraham and Farrah were required to sign a grant deed transferring the property title to Avraham as an individual. The letter stated it enclosed the documents Farrah needed to sign and have notarized in order to complete the loan transaction.
Farrah refused to sign the documents and, in late March 2021, her counsel advised that she would return the $50,000 equalization payment to Avraham "in about a week or so." She did not do so.
4. Avraham moves to enforce the judgment; Farrah contends the marital settlement agreement is void.
In April 2021, Avraham filed a request for order seeking enforcement of the judgment under Code of Civil Procedure section 664.6 and a $2,500 sanction against Farrah. Avraham asked the court to order Farrah to execute a grant deed transferring her interest in the couple's residence to him, asserting that Farrah's refusal to do so was the only obstacle preventing him from assuming and refinancing the mortgage on the residence. In the alternative, Avraham asked the court to order the Clerk of the Court to execute the grant deed in Farrah's place.
In response, Farrah asked the court to deny Avraham's request for relief, find the settlement agreement null and void, and set all property division matters for trial. She argued that Avraham failed to comply with the agreement's deadline to assume the mortgage loan and, pursuant to its plain terms, the agreement was therefore void. In order to grant Avraham's request for order, Farrah asserted, the court would need to modify the settlement agreement, which is generally impermissible. She also indicated that she would return the $50,000 equalization payment to Avraham.
In reply, Avraham argued for the first time that the parties' settlement agreement should be reformed due to a mutual mistake, namely the length of time it would take for him to assume the mortgage and secure new financing. Avraham also submitted a supplemental declaration stating that on April 27, 2020, he had executed an assumption agreement taking over the note and mortgage on the residence. The assumption agreement included the following provision: "Nothing in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of the Note or Mortgage nor a release of FARRAH BINUR, the original Borrower[,] from any and all personal liability with respect to the payment of the Note and any other obligations contained in the Note as amended herein, or the Mortgage securing same."
5. Court requests supplemental briefing on equitable issues, finds the settlement agreement void.
The court held a hearing on Avraham's request for enforcement of the judgment on August 23, 2021. The court did not rule on the merits and instead asked the parties to brief several equitable issues: waiver, estoppel, and accord and satisfaction.
In his supplemental brief, Avraham argued that no accord and satisfaction had occurred because the usual purpose of an accord and satisfaction is to settle a debt for a lesser amount. Here, Avraham asserted, he paid Farrah the full amount owed under the settlement agreement. Avraham did not directly address the issue of waiver but argued Farrah should be estopped from seeking to set aside the judgment because her prior motion on that issue had been denied and she had not appealed or moved to set aside the court's order under Code of Civil Procedure section 473, subdivision (b). Also, Avraham urged, Farrah had not claimed that Avraham committed fraud.
Farrah submitted a supplemental brief as well. She argued she had not waived her rights under the settlement agreement because once Avraham failed to meet the assumption deadline, she immediately asked the court to declare the settlement agreement void. The court's denial of that request was purely procedural. Neither did her acceptance of the $50,000 equalization payment constitute a waiver of her rights under the settlement agreement, as the payment was made well after the assumption deadline and she had offered to return the funds to Avraham but he refused to accept them. Estoppel should not apply either, as Farrah had repeatedly advised Avraham and his counsel that she would not accept Avraham's belated performance. She also agreed with Avraham that no accord and satisfaction had occurred. Farrah objected to Abraham's argument that the parties made a mutual mistake when they signed the settlement agreement, as that issue had not been raised in Avraham's request for order and was not an equitable issue raised by the court.
The court held a further hearing on October 7, 2021. The court entered a minute order denying Avraham's request to enforce the judgment and finding the settlement agreement void under its express terms. Accordingly, the minute order stated that the prior judgment is valid only as to marital status. The parties waived notice.
6. Court denies Avraham's request for reconsideration; Appeal.
On October 15, 2021, Avraham requested that the court reconsider its ruling on his request to enforce the judgment.
First, Avraham argued for the first time that the provision in the settlement agreement stating that the agreement would be void if Avraham failed to assume the mortgage loan by November 25, 2019, is unenforceable as a matter of law. Specifically, he claimed that the provision constituted an unenforceable liquidated damages clause pursuant to Civil Code section 1671, subdivision (b) and is therefore unjust and contrary to public policy. Avraham's counsel submitted a declaration stating that the case relied upon, Graylee v. Castro (2020) 52 Cal.App.5th 1107, had only been discovered by counsel after the court's October 7, 2021 hearing and therefore justified the court's reconsideration of its prior order.
Second, Avraham claimed that the court's denial of Farrah's December 2019 request for an order declaring the settlement agreement void was a final order on that issue. Accordingly, Avraham claimed, the validity of the settlement agreement was not properly before the court when it ruled on Avraham's request to enforce the settlement agreement.
Finally, Avraham urged that the order denying Farrah's December 2019 request for order, which Farrah did not appeal and did not ask the court to reconsider, "is now res judicata and is not subject to collateral attack." Accordingly, he claimed, Farrah was barred from raising the same issue, i.e., that the settlement agreement is void, in opposition to Avraham's request to enforce the settlement agreement.
In opposition to the request for reconsideration, Farrah argued that the liquidated damages argument was misplaced because the assumption deadline is not a liquidated damages provision. She also asserted, contrary to Avraham's claim, that Family Code section 213 allowed her to request alternative relief (in this case, a declaration that the settlement agreement is void) in her responsive declaration to Avraham's request to enforce the judgment. Finally, and in any event, Farrah urged that Avraham offered no proper explanation as to why the issues raised in his request for reconsideration could not have been raised in his initial request for order. No new law or new facts appeared in his reconsideration request.
In reply, Avraham again asserted that Farrah's request that the court declare the settlement agreement void was improper and the court abused its discretion by reconsidering the issue. Instead, Farrah was required to file her own request for order and schedule a separate hearing if she wanted the court to take on that issue. Finally, Avraham defended his motion for reconsideration, stating that the new issues raised in his motion "only became relevant after the court revisited [Farrah's] request that the judgment be voided as to the property issues."
On January 20, 2022, the court denied Avraham's motion for reconsideration. The court found the validity of the settlement agreement was an issue properly before it in connection with Avraham's request to enforce the judgment. The court also rejected Avraham's argument that the issues raised in his request for reconsideration were unrelated to the issues in his request to enforce the judgment. Accordingly, those issues did not constitute new facts or law, as required to support a request for reconsideration.
Avraham timely appeals.
DISCUSSION
Avraham contends the trial court erred in its rulings on his motion to enforce the judgment and his motion for reconsideration. He contends the trial court lacked authority under Code of Civil Procedure section 664.6 to find the marital settlement agreement void. He also urges that the assumption deadline in the settlement agreement should not be strictly enforced against him. We are not persuaded.
1. Appellant's Burden on Appeal
The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and "it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)" 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The appellant has the burden to show error, even if the appellant did not bear the burden in the trial court, and" 'to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.'" (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer &Herron (2009) 177 Cal.App.4th 771, 779-801 (Dietz) [several contentions on appeal "forfeited" because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, "an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived." (Kurinij v. Hanna &Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, the argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Ibid.) In short, an appellant must demonstrate prejudicial error based on sufficient legal argument supported by citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
2. Standard of Review
" 'The trial court's factual findings on a motion to enforce a settlement pursuant to [Code of Civil Procedure] section 664.6 "are subject to limited appellate review and will not be disturbed if supported by substantial evidence."' (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)" (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984.) Issues of law, including the interpretation of a statute or contract, are reviewed independently. (Estate of Jones (2022) 82 Cal.App.5th 948, 952953.)
3. Background Legal Principles
"Code of Civil Procedure section 664.6 authorizes the trial court to enter judgment incorporating terms of a settlement agreement if parties stipulate in writing to settle the case and, if requested, retain jurisdiction to enforce its judgment. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) On a motion to enforce, the court must determine whether the settlement agreement is valid and binding. (Ibid.) 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. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) It may interpret the settlement terms and conditions, but it cannot impose terms to which the parties did not agree. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)
"Stipulated judgments are interpreted according to contract principles. (Jamieson v. City Council of the City of Carpinteria (2012) 204 Cal.App.4th 755, 761.) When interpreting a contract, courts give effect to the parties' mutual intentions, first examining the contract's plain language. (Civ. Code, § 1636; undesignated statutory references are to this code; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) The language governs if it is clear, explicit, and does not involve absurdity. (Jamieson, at p. 761; [Civ. Code] § 1638.) It must be read in the context of the whole instrument and circumstances of the case. (Bank of the West, at p. 1265.) The construction should give effect to all provisions without inserting or omitting text. (Code Civ. Proc., § 1858.)" (Estate of Jones, supra, 82 Cal.App.5th at pp. 952-953.)
4. The court properly considered whether the marital settlement agreement is void.
As a threshold matter, Avraham asserts the court "lacked jurisdiction" to consider whether the marital settlement agreement is void, as Farrah asserted. His arguments, however, do not concern the court's fundamental jurisdiction, i.e., personal or subject matter jurisdiction. Stated more accurately, Avraham contends the court lacked the authority to consider whether the parties' agreement was void. We disagree.
Avraham's motion to enforce the judgment put the validity of the marital settlement agreement squarely at issue. It is generally the case that "the moving party ... has the burden of proving every fact essential to the relief requested. [Citation.]" (Corns v. Miller (1986) 181 Cal.App.3d 195, 200; see also People v. Lopez (1997) 52 Cal.App.4th 233, 251 [" '[o]n all motions the burden is on the moving party' "]. Here, Avraham, as the moving party seeking to enforce a judgment, had the burden of establishing the existence of an outstanding, valid, unsatisfied, and enforceable judgment. (Cf. Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 517-518 [contempt order improperly issued on void judgment].) He failed to do so.
As the court noted, the agreement contains clear terms regarding the deadline to complete the mortgage assumption: "This Settlement is contingent upon the assumption of the mortgage loan by [Avraham.] [¶] In the event the loan is not assumed by [Avraham] by November 25, 2019, this agreement is void, and [Farrah] shall refund the $50,000 to [Avraham] within 10 business days of receiving notice from [Avraham] that the loan assumption has failed. [¶] THERE ARE NO OTHER AGREEMENTS BETWEEN THE PARTIES." It is undisputed that Avraham failed to meet the November 25, 2019 deadline. Thus, in the absence of some valid legal excuse for nonperformance, an issue we address post, the agreement is void.
The defect is fatal." '" 'A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone.' [Citation.]"' [Citations.] [¶] ... More broadly, '[a] void judgment may be attacked" 'anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any right whatever.'" '[Citation.]" (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 616.)
Avraham's arguments to the contrary lack merit. He contends, for example, that the court lacked the authority to alter or set aside the judgment under Code of Civil Procedure section 473, subdivision (b), because the six-month window to make such a motion had long passed by the time Avraham brought his motion to enforce the judgment. At that time, he contends, the only basis upon which the court could have relied to set aside the judgment was fraud, which was not alleged by Farrah. But Code of Civil Procedure section 473, subdivision (b), is inapplicable. Farrah cited none of the grounds found in that provision in her opposition to Avraham's request to enforce the judgment and the court did not rely on that provision in making its ruling. Instead, the applicable provision is Code of Civil Procedure section 473, subdivision (d), which contains no time limit.
Section 473, subdivision (d), provides: "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Avraham also argues that courts lack authority to rewrite stipulated judgments. We agree." 'Although a judge hearing a [Code of Civil Procedure] section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' [Citation.]" (J.B.B. Investment Partners, Ltd. v. Fair, supra, 232 Cal.App.4th at pp. 983-984.) The point is misplaced, however, because the court did not rewrite the settlement agreement. Instead, the court recognized that it was void pursuant to its own terms.
Finally, Avraham contends that the court lacked authority to find the settlement agreement void because the issue was raised in opposition to his motion to enforce the judgment. As Avraham notes, Family Code section 213 allows a party to seek alternative relief in opposition to such a motion, but only if that relief relates to "the same issues raised by the moving party." (Fam. Code, § 213, subd. (a).) Avraham contends Farrah's request for relief does not concern the "same issues" presented in his motion because he sought to enforce the judgment while Farrah sought to declare it void. We reject this argument because, as already explained, Avraham's motion put the validity of the settlement agreement at issue. It was not necessary for Farrah to raise the issue in a separate motion.
5. Avraham's contention that the express terms of the marital settlement agreement should not be strictly enforced lacks merit.
Avraham also urges that the court erred by strictly enforcing the assumption deadline. Again, we disagree.
We apply well-settled rules of contract interpretation. "[W]e first consider the mutual intention of the parties at the time the contract ... was formed. (Civ. Code, § 1636.) Our initial inquiry is confined to the writing alone. (Id., § 1639; see Santisas [v. Goodin (1998)] 17 Cal.4th [599,] 608.)' "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' ([Civ. Code], § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]"' (Santisas, supra, 17 Cal.4th at p. 608; see Harris v. Klure (1962) 205 Cal.App.2d 574, 577578.) At the same time, we also 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).' [Citation.]" (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752.)
The language of the parties' settlement agreement is clear and unambiguous. Avraham was given a period in which to assume the mortgage loan. If he met the deadline, he would owe Farrah $50,000 as an equalization payment and the property division would be final. If he did not, the agreement would be void. The parties plainly intended the deadline to be firm and to impose a specific consequence-a renegotiation of the property division. We see no error in the court's decision to enforce the agreement according to its unambiguous terms and find the agreement void.
Avraham makes several arguments suggesting the deadline should not be strictly enforced against him. First, he argues that he substantially performed his obligations under the agreement and that his inability to meet the assumption deadline was not his fault. He also argues that Farrah did not provide notice and opportunity to cure his breach of the assumption deadline. Avraham forfeited these arguments by failing to raise them below. "[P]arties are not permitted to' "adopt a new and different theory on appeal. To permit [them] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." '" (Mattco Forge, Inc. v. Arthur Young &Co. (1997) 52 Cal.App.4th 820, 847.)
Second, citing legal authority relating to the enforcement of contractual liquidated damages provisions, Avraham suggests that the assumption deadline is unenforceable because the penalty does not bear a reasonable relationship to the harm. This argument is misplaced because the settlement agreement does not include a liquidated damages provision."' "The term 'liquidated damages' is used to indicate an amount of compensation to be paid in the event of a breach of contract, the sum of which is fixed and certain by agreement, and which may not ordinarily be modified or altered when damages actually result from nonperformance of the contract." [Citation]. "Liquidated damages constitute a sum which a contracting party agrees to pay ... for breach of some contractual obligation."' (McGuire v. More-Gas Investments, LLC (2013) 220 Cal.App.4th 512, 521.)" (Gormley v. Gonzalez (2022) 84 Cal.App.5th 72, 79.) The assumption deadline is just that-a deadline. It does not provide for payment of damages.
Third, Avraham asserts that contractual provisions resulting in forfeiture must be strictly construed and are disfavored as a matter of public policy. Accordingly, he contends Farrah waived the right to enforce the assumption deadline by failing to take reasonable action to enforce it. As already noted, however, Avraham did not directly address the waiver issue below, even after the court invited the parties to do so. But having raised the issue itself, the court implicitly found no waiver had occurred when it denied Avraham's request to enforce the judgment. We consider whether Avraham's evidence is "uncontradicted and unimpeached" and "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding" in his favor. (LaFace v. Ralphs Grocery Co. (2022) 75 Cal.App.5th 388, 408-409.)
" 'When the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals, it is somewhat misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.' [Citation.] 'Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (LaFace v. Ralphs Grocery Co., supra, 75 Cal.App.5th 388 at pp. 408-409.)
The principles underlying the waiver doctrine are well settled." '" 'Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver." '" [Citations.]' [Citations.] 'The pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right.' [Citations.]" (Southern California Edison Co. v. Public Utilities Com. (2000) 85 Cal.App.4th 1086, 1107.) Waiver must be established by clear and convincing evidence. (Id. at p. 1109.)
Avraham points to two actions by Farrah in support of his waiver argument. First, he asserts Farrah waived the assumption deadline by failing to enforce it in court. But she tried. Farrah filed a request for order seeking exactly that relief in December 2019. It is true, as Avraham notes, that the court denied her request without prejudice and, further, that Farrah did not renew her request. The record does not indicate, one way or the other, why she did not renew the request. Farrah did unequivocally advise Avraham's counsel that she would not accept Avraham's late performance the day after the assumption deadline, however, and there is no indication that she ever retracted that position. Second, Avraham contends Farrah waived his delayed performance by cashing the $50,000 cashier's check he sent in late August 2020. But Farrah and her counsel explained that she only cashed the check in late February 2021, after her counsel became uncomfortable retaining the check for fear that it might be mislaid or cashed by the wrong party. And even after she deposited the cashier's check, Farrah kept the money segregated and she later obtained a cashier's check refunding the equalization payment to Avraham. He refused to accept it. Taken together, these facts are too equivocal to establish by clear and convincing evidence that Farrah intentionally waived the assumption deadline. The court did not err in rejecting this argument.
Finally, Avraham asserts that Farrah breached the covenant of good faith and fair dealing by refusing to sign the papers required to finalize his refinanced mortgage loan. He appears to contend that her breach in that regard excuses his failure to comply with the assumption deadline. We fail to see the connection. Avraham failed to meet the assumption deadline in November 2019, 16 months before Farrah refused to sign the papers required for Avraham's loan refinance. Farrah's breach, if any, has no causal relationship to Avraham's failure to perform.
DISPOSITION
The order is affirmed. Respondent Farrah Binur shall recover her costs on appeal.
WE CONCUR: EDMON, P. J., ADAMS, J.