Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu and Helen Bendix, Judges. Affirmed. Los Angeles County Super. Ct. No. BC340296
Iverson, Yoakum, Papiano & Hatch, Neil Papiano, Patrick McAdam and Joanna L. Orr for Plaintiff and Appellant.
Caldwell Leslie & Proctor, Christopher G. Caldwell, Andrew Esbenshade and Lisa Marley for Defendant and Appellant.
WOODS, J.
INTRODUCTION
This appeal and cross-appeal is from a judgment of dismissal following the sustaining of a demurrer without leave to amend the first amended complaint of appellant. Respondent also appeals the judgment of the trial court in failing to grant its motion for sanctions against appellant for filing what respondent refers to as a patently false and frivolous first amended complaint.
In essence this court is asked to make a comparison, as did the trial court, of wordage consistently used by appellant in pleadings, documents and testimony throughout the history of this litigation, with the recent allegations contained in appellant’s first amended complaint and come to the conclusion that the purported oral settlement agreement which is the subject of this appeal is barred by the one year provision set forth in the statute of frauds.
The relevant part of the statute in question, namely Civil Code section 1624, subdivision (a)(1), reads as follows: “(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: [¶] (1) An agreement that by its terms is not to be performed within a year from the making thereof.”
In order to obtain a satisfactory orientation of the current appeal, a brief summary of the prior litigation is warranted. The prior litigation culminating in an opinion by Division One of this Court is sometime referenced herein as “Nicholaw I.”
On May 30, 2006, Division One of this court filed its unpublished opinion in appeal No. B185428, affirming the judgment of the trial court. George Nicholaw (“Nicholaw”) had commenced an action against Infinity Broadcasting Corporation (“Infinity”) for wrongful termination and breach of contract contending that Infinity and others terminated his employment as the Vice President and General Manager of AM radio station KNX, a position he held for 36 years. At the time Nicholaw was 75 years old. In his complaint, Nicholaw alleged causes of action for (1) wrongful termination in violation of the California Fair Employment and Housing Act (“FEHA”), specifically for age discrimination, (2) tortuous termination in violation of public policy, (3) breach of implied in fact contract and (4) breach of the covenant of good faith and fair dealing.
CBS Radio was sued by Nicholaw under its former name, Infinity Broadcasting Corporation. For continuity, the name “Infinity” is continued to be used in this appeal, but includes CBS Radio unless context otherwise requires a reference to CBS Radio.
On July 23, 2007, Nicholaw filed a motion for calendar preference pursuant to Rule 8.240 of the California Rules of Court, bringing to this court’s attention that he is over the age of 70 years. The motion was unopposed. The motion was granted on August 9, 2007.
After filing an answer to Nicholaw’s complaint, Infinity filed a motion for summary judgment, or in the alternative, summary adjudication. Nicholaw opposed the motion arguing that there were triable issues of material fact that precluded a grant of summary judgment. The trial court granted Infinity’s motion and entered judgment in its favor. Nicholaw appealed and Division One affirmed the judgment in its 15-page opinion filed on May 30, 2006, which we judicially notice pursuant to Evidence Code section 451, subdivision (a).
Petition for review was denied by the California Supreme Court on August 18, 2006.
The current appeal involves a purported oral agreement to settle the litigation. Infinity maintains the oral settlement agreement violates the statute of frauds. The trial court agreed with Infinity. Nicholaw filed a timely notice of appeal.
FACTUAL AND PROCEDURAL SYNOPSIS
Description of the current action involving breach of oral contract to settle, sometimes referred to herein as “Nicholaw II.”
Nicholaw contends that following the affirmance of the judgment by Division One of this court, he settled the action by an oral agreement. According to Nicholaw, Infinity agreed to pay him a settlement amount by three installment payments with the last payment coming due one year after the contract was made. Nicholaw, however, maintained in the trial court and in this appeal that Infinity had the right to prepay the last installment, which he was compelled to accept, thereby removing the oral agreement from the one-year period of the statute of frauds.
Infinity, on the other hand, contends that Nicholaw is seeking to enforce an incomplete oral settlement agreement, which the parties were still in the midst of negotiating following Nicholaw’s adverse judgment by Division One of this court; that the settlement payments stretched over a year; the “inchoate agreement” was barred by the statute of frauds; and numerous sworn declarations submitted by Nicholaw and his counsel in the trial court established the bar. Infinity further maintains that the trial court properly “held Nicholaw” to his sworn testimony and properly found that Nicholaw could not possibly amend his operative complaint to aid in surmounting the bar of the statute of frauds in the face of sworn testimony indicating otherwise. Accordingly, contends Infinity, the trial court properly sustained Infinity’s demurrer to Nicholaw’s first amended complaint without leave to amend.
Nicholaw’s first amended complaint was his operative complaint in the trial court and on this appeal. For convenience, his first amended complaint will hereafter be referenced as the FAC unless context dictates a departure from this procedure.
Looking beyond its defense based on the bar of the statute of frauds, Infinity asserts that Nicholaw took actions that deprived Infinity of a key term of the contemplated agreement, namely, confidentiality, by publicizing the terms of the alleged agreement to the press “in an effort to pressure” Infinity into a settlement. Infinity posits that Nicholaw’s intentional and unnecessary violation of what “he acknowledged” to be a critical term of the alleged agreement, should be an alternative ground upon which this court should rely in affirming the judgment of the trial court.
Infinity also appeals, however, contending that the trial court committed error in failing to grant its motion for sanctions under Code of Civil Procedure section 128.7 based upon Nicholaw’s filing of what Infinity refers to as a “frivolous and patently false First Amended Complaint.” Denial of the motion for sanctions is the subject matter of Infinity’s cross-appeal in this court.
The relevant parts of Code of Civil Procedure section 128.7 are as follows:
Nicholaw’s pleading in the current action.
In order to make the analysis and comparison of Nicholaw’s former pleading with his current version as expressed in his FAC, we begin with a verbatim quote from the relevant allegation of the FAC.
The unverified FAC was filed on October 10, 2006. It stated one cause of action entitled “FIRST AMENDED COMPLAINT FOR BREACH OF ORAL CONTRACT.” It makes reference to a “Complaint filed September 23, 2005.” George Nicholaw is the named Plaintiff. Infinity Broadcasting Corporation is the named Defendant, as well as 10 fictitious defendants. The relevant allegations for purposes of this appeal are extracted from the FAC as follows:
“4. On or about April 7, 2004, Plaintiff sued Defendant, Los Angeles Superior Court case number BC 312886 (‘the Litigation’). Plaintiff alleged several claims, including but not limited to tortuous termination of his employment as Vice President and General Manager of KNX-AM. Plaintiff also alleged wrongful termination, breach of implied in fact contract and breach of covenant of good faith and fair dealing.
“5. During final preparation for trial, which was to begin on July 11, 2005, Plaintiff, through his attorney, Neil Papiano (‘Mr. Papiano’), engaged in detailed settlement negotiations with Defendant, Does 1 through 10, inclusive, and each of them, through their attorney, Christopher Caldwell (‘Mr. Caldwell’). The settlement negotiations began on Friday, June 24, 2005 in Mr. Caldwell’s office and continued through Saturday, June 25, 2005 and Sunday, June 26, 2005. In the morning of Monday, June 27, 2005, Mr. Caldwell, on behalf of Defendant, Does 1 through 10, inclusive, and each of them, confirmed the settlement. Mr. Caldwell, by telephone, informed Mr. Papiano ‘we have a deal.’ Mr. Caldwell and Mr. Papiano congratulated each other on settling a major litigation that had been diligently pursued for over one year through many depositions, pleadings and documents.
“6. In accordance with the settlement agreement, Defendant, Does 1 through 10, inclusive, and each of them, agreed to pay Plaintiff the sum of one million two hundred fifty thousand dollars ($1,250,000.00) immediately, and make additional payments of forty eight thousand dollars ($48,000.00) on or before January 2006 and forty eight thousand dollars ($48,000.00) on or before January 2007. As consideration for the agreement by Defendant, Does 1 through 10, inclusive, and each of them, to pay these sums, Plaintiff agreed to dismiss the Litigation with prejudice. Notwithstanding the proposed schedule for payment, Defendant, Does 1 through 10, inclusive, and each of them, has the financial ability to easily pay the full amount of the settlement within one year of the settlement and Plaintiff had to accept any such prepayment.
“7. On June 28, 2005, at approximately 9:30 a.m., Mr. Papiano called Mr. Caldwell and reported that Mr. Papiano’s office had been contacted by an associate of Mr. Caldwell. The associate left a voicemail message inquiring about trial preparation. Mr. Caldwell responded by telling Mr. Papiano that Mr. Caldwell would tell Mr. Caldwell’s associate to ‘stand down’ because the litigation had been settled. Mr. Caldwell again stated, ‘We have a deal.’ During the conversation, Mr. Caldwell also requested that Mr. Papiano call the Court to notify the Court of the settlement and request that the case be taken off calendar. Immediately after the conversation, Mr. Papiano did so.
“8. At approximately 1:00 p.m. on June 28, 2005, Mr. Caldwell, gave notice to Mr. Papiano that Defendant, Does 1 through 10, inclusive, and each of them, had received the Court’s order dismissing Plaintiff’s case, and therefore Defendant, Does 1 through 10, inclusive, and each of them, repudiated the settlement agreement.
“9. When Defendant, and Does 1 through 10, inclusive, and each of them, repudiated the settlement agreement, Plaintiff had performed all of the conditions on his part to be preformed to complete the settlement of the case and was ready, willing and able to complete performance. Plaintiff did not make public statements regarding the terms of the settlement until after the Defendant, and Does 1 through 10, inclusive, and each of them, repudiated the settlement agreement.
“10. The settlement agreement did not prohibit prepayment within one year. Plaintiff’s attorney specifically told Defendant’s attorney that Plaintiff, of course, had to accept a prepayment at any time. The Defendant, and Does 1 through 10, inclusive, and each of them, have no reason or fact to contend otherwise and know this is true. After the Defendant, Does 1 through 10, inclusive, and each of them, repudiated the settlement agreement, Plaintiff filed pleadings in the Litigation that have statements regarding the installment payments of the settlement. Plaintiff’s statements did not mislead the Defendant, and Does 1 through 10, inclusive, and each of them, because the Defendant, and Does 1 through 10, inclusive, and each of them, knew before the Plaintiff made the statements that the settlement agreement did not prohibit prepayment within one year.”
Infinity’s responsive pleading in the current action (Nicholaw II).
The core of Infinity’s defense in the current litigation can be stated in capsule form. Infinity maintains that any alleged oral agreement was barred by the statute of frauds requiring the purported oral agreement to be in writing because it was not possible for Nicholaw to show that the agreement was capable of being performed in one year. Infinity maintains that this is so by virtue of sworn testimony and pleadings filed by Nicholaw during the course of this extended litigation. Infinity summarizes its position on the statute of frauds defense as follows in its Responsive Brief on Appeal and Opening Brief on Cross-Appeal which we quote verbatim:
“In that lawsuit, Nicholaw took his first bite at the apple when he attempted to press the argument that forms the basis of his current lawsuit: that he had reached an enforceable settlement agreement with CBS Radio prior to the trial court’s grant of summary judgment in CBS Radio’s favor. On July 18, 2005, Nicholaw moved to stay entry of judgment in favor of the various defendants, in order to buy time to file his own motion for “summary judgment” to enforce the alleged oral settlement agreement. . . . In that motion, Nicholaw alleged that he and CBS Radio agreed to a settlement on June 27, 2005 that required the various defendants to pay a total amount of $1,346,000 over three scheduled installments – ‘One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00), plus Forty-Eight Thousand Dollars ($48,000.00) on January 1, 2006 and Forty-Eight Thousand Dollars ($48,000.00) on January 1, 2007’ – in exchange for dismissal of the suit. . . . Nicholaw’s motion and accompanying sworn declarations filed with the trial court established that the schedule of payments of the alleged agreement stretched beyond one year and thus fell within the statute of frauds and was unenforceable unless reduced to writing, which everyone concedes it was not. . . .
“In fact, this requirement that the third scheduled installment of the alleged settlement be paid more than one year later – in January 2007 – is expressly stated in eight different documents filed by Nicholaw in three different courts in Nicholaw I, including four different declarations made under penalty of perjury. [Fn. 1 of the responsive brief stated: “The trial court took judicial notice of all the items listed here with the exception of the declarations by Nicholaw’s lead counsel, Neil Papiano. . . . The trial court stated that Mr. Papiano’s declarations did not ‘fall within the articulated rule that prior admissions by a party may be used to attack the party’s subsequent purportedly inconsistent pleading.’ . . . As explained below, CBS Radio contends that the trial court’s view on this issue was unnecessarily narrow, and thus mistaken. (See, e.g., Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-05 [approving judicial notice of prior declarations by the plaintiff or its representatives].)” (Original italics.)]
“1. Nicholaw’s Motion to Stay Entry of Summary Judgment . . .;
“2. Nicholaw’s sworn declaration in support of Nicholaw’s Motion to Stay Entry of Summary Judgment . . .;
“3. Neil Papiano’s sworn declaration in support of Nicholaw’s Motion to Stay Entry of Summary Judgment . . .;
“4. Nicholaw’s Reply to Opposition to Motion to Stay Entry of Summary Judgment . . .;
“5. Nicholaw’s supplemental sworn declaration in support of Nicholaw’s Reply to Opposition to Motion to Stay Entry of Summary Judgment . . .;
“6. Papiano’s additional supplemental sworn declaration in support of Plaintiff’s Reply to Opposition to Motion to Stay Entry of Summary Judgment . . .;
“7. Nicholaw’s Opening Brief before the California Court of Appeal in Nicholaw I; and
“8. Nicholaw’s Petition for Review before the California Supreme Court in Nicholaw I . . . .” (Original italics.)
Relevant rulings of the trial court pertaining to the statute of frauds/sanctions.
Continuing in capsule format, we now focus on the ultimate ruling by the trial court pertaining to Infinity’s statute of frauds defense and on the motion of Infinity for sanction.
In its demurrer, Infinity is essentially saying that Nicholaw is attempting to speak out of both sides of his mouth and this should not be permitted in the judicial system. Infinity goes to great lengths to reference sworn statements and other documents in this extensive litigation where Nicholaw takes the position that the last installment payment of the purported oral settlement agreement was to be paid in “January 2007” a period of time outside of that which is permitted by the statute of fraud on an oral contract. Infinity brings into sharp contrast the FAC of Nicholaw in which he currently contends that the installment payments, following the first payment, could now be paid “on or before” the due date thereby bringing into play an exception to the statute of frauds, namely, the possibility that the oral contract could be performed within the one year period. This contention depends on whether the trial court properly found that judicial notice of the documents and testimony relied on by the trial court was free of error.
Pertaining to Infinity’s motion for sanctions under Code of Civil Procedure section 128.5, the court merely summarized its ruling by essentially saying that a dismissal with prejudice without leave to amend is an appropriate sanction in this instance without any further award. This of course is tantamount to a terminating sanction, loosely analogous to a sentence of death in the criminal context.
It is appropriate, in this case which has been extensively litigated both in the trial court and in a previous appeal, that the extensive and detailed tentative opinion of the court, which became the final ruling of the trial court, be stated verbatim. In the tentative opinion filed on January 12, 2007, the court stated as follows:
“Request for Judicial Notice
“Defendant’s Request for Judicial Notice is substantially similar to their request filed in connection with their demurrer to the original complaint (See Amended Request for Judicial Notice, filed August 17, 2006). Exhs. 1-9 are the same for both; Exhs. 16-20 are the same as Exhs. 10-14 of the prior request. The new request adds Exhs. 10-15.
“Neither party has presented grounds for disturbing the Court’s ruling on the prior request. See Minute Order of September 27, 2006.
“Accordingly the Court takes notice of Exhs. 1, 3, 6, and 9, and declines to take notice of Exhs. 2, 4, 5, 7, and 8.
“Likewise, the Court declines to rule on Exhs. 16-20, as they are irrelevant to the issue of the Statute of Frauds.
“As to Exhs. 10-15: the Court declines to take notice of Exh. 10 (decision of the California Supreme Court in Nicholaw I) for the same reasons it declined to take notice of Exh. 8 (decision of the Court of Appeal), and takes notice of Exh. 11-15, copies of pleadings filed in this action.
“Demurrer
“The Court sustained demurrer to Plaintiff’s Complaint on September 27, 2006, on the first of Defendant’s two grounds for demurrer: that the alleged oral settlement agreement between the parties was, by its own terms, to be completed after more than a year, and was thus barred by the Statute of Frauds. See Minute Order of September 27, 2006; see also Defendant’s Reply in support of their Demurrer to the Complaint, filed September 11, 2006.
“Defendant argues, and Plaintiff does not dispute, that the FAC is unchanged except for the additional factual allegation that Plaintiff’s attorney specifically told Defendant’s attorney during the negotiations that ‘Plaintiff, of course, had to accept a prepayment at any time.’ . . .
“The original Complaint alleged at ¶ 6 that Defendant ‘has the financial ability to pay the full amount of the settlement within one year . . . and Plaintiff would not object to any such payment.’
“The new factual allegation is not qualitatively different from the old ones, as they are all brought in support of the same argument: that there was no prohibition on prepayment, and thus the agreement contained the possibility of being performed within a year of its making. It does not explain away Plaintiff’s prior declaration that the express terms of the alleged contract were that a payment under the contract was to be made on January 1, 2007. The Court has already ruled that the possibility of prepayment was not enough to bar the application of the Statute of Frauds.
“Thus, Plaintiff’s amended complaint has not stated sufficient grounds for overruling the reasoning behind the Court’s earlier sustaining of demurrer.
“The Court does not rule on Defendant’s second grounds for demurrer.
“Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.
“Motions for Sanctions
“C.C.P. § 128.7(b), subdivisions (1) and (3) authorizes sanctions for filing papers that are brought for an improper purpose, such as harassment, or contain statements without evidentiary support or the reasonable possibility of finding support. The statute reserves discretion in the Court as to whether or not such sanctions should be awarded, even if an adequate showing is made for them. . . .
“Although moving party has a compelling argument for the imposition of sanctions, the Court is of the opinion that the sustaining of the demurrer without leave to amend is of sufficient detriment to Plaintiff, thus obviating the need of an additional penalty.
“The motion is denied.”
DISCUSSION
It appears to this court that the key issue on appeal is whether the purported oral agreement was to be performed January 1, 2007, as opposed to on or before January 1, 2007. Resolution of this issue is determinative of the litigation. We discern that the pivotal issue centers on whether or not judicial notice is proper with respect to the documents and testimony used by Infinity to illuminate the inconsistent positions taken by Nicholaw to the point of his attempt to salvage his law suit by offering amendments in the FAC to plead around the defense of the statute of frauds.
Before reaching this juncture, however, we must address Nicholaw’s contention that the right to “prepayment” is necessarily a part of an installment contract unless expressly forbidden by the parties to the contract. If such be the law, then the statute of frauds defense appears to be moot in this instance and the judgment should be reversed for a trial on the merits. However, as hereafter explained, we find the law to be otherwise.
Nicholaw argues the phrase “on January 1, 2007” or “in January 2007” does not prohibit prepayment. He did not argue in the trial court and does not argue here that the term “on January 1, 2007” or “in January 2007” was intended by the parties to mean no later than January 1, 2007. Accordingly, we are not required to consider whether Nicholaw has alleged, or could allege if given a further opportunity to amend his complaint, that properly interpreted, with the aid of extrinsic evidence, the parties’ agreement in fact permitted prepayment of the final payment.
To set the tone of his argument, Nicholaw relies on two decisions of the California Supreme Court for orientation. The first is White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343, footnote 2, where the instruction from our high court indicates that the statute of frauds applies only to those contracts that do not have at least the slightest possibility of being performed within one year. The second cite to our high court by Nicholaw is to Sunset-Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834, 838, wherein the court stated “[t]he commentators almost unanimously urge that considerations of policy indicate a restricted application of the statute of frauds, if not its total abolition.” This attempt at judicial attitude adjustment by Nicholaw is interesting but it hardly reaches the marrow of the issue under California law as he readily concedes. Nicholaw forthrightly represents to this court that he has found no California court that has specifically addressed the issue. Nicholaw, however, has found the reasoning in Moon v. Moon (N.Y.App.Div. 2004) 776 N.Y.S.2d 324, 6 A.D.3d 796 to be relevant and asks this court to be persuaded by it. The court in Moon held “the oral agreement between the parties was devoid of any restriction against prepayment within one year and, as such, the possibility remained of complete performance within one year without breaching the agreement . . .” The contract in Moon provided “the loan payments would be $300 per month at 7% interest, with a balloon payment after 10 years, but did not prohibit prepayment. Nicholaw asserts that the oral settlement agreement in this case is similarly totally devoid of any restriction against Infinity prepaying the settlement in full within one year and, therefore, based on the holding in Moon v. Moon, the statute of frauds is not a bar to the oral settlement agreement. Infinity, on the other hand, urges this court to refrain from giving any persuasive weight to the Moon decision because no court that it can locate has ever followed the Moon decision. Infinity maintains that there is ample case law originating in California which lays to rest the issue that merely failing to provide for prepayment does not foreclose the possibility of prepayment.
Infinity cites a plethora of California decisions in support of its argument that failure to provide for prepayment does not mean the parties have an implied right to prepayment regardless of the date certain contained in the contract. In reaching its conclusion on the point, Infinity ultimately accentuates three cases as follows in its “Responsive Brief On Appeal And Opening Brief On Cross-Appeal” as follows: “Under controlling California law, including Lacy v. Bennett (1962) 207 Cal.App.2d 796, Mitchell v. Fleming (1926) 77 Cal.App. 241, and Hall v. Puente Oil Co. (1920) 47 Cal.App. 611, the alleged agreement violates the statute of frauds and the trial court’s decision to sustain CBS Radio’s demurrer should be affirmed.”
Candidly, this court is singularly unimpressed with the decisional authorities cited by both counsel in support of their positions on the issue. Perhaps refuge should be taken in the well known appellate principle of looking first to the statute in question for guidance, which does not mention an implied right of prepayment. The statute is free of ambiguity and plain on its face. We are aware that the statute dealing with the statute of frauds has been the subject of considerable debate and the courts have labored diligently to either find exceptions to its dictates or to uphold it.
The purported oral contract of settlement had a long history of indicating that the payments were to be made on a date which is beyond the statute of frauds and is therefore invalid unless an express or implied right to prepayment cures Nicholaw’s dilemma. The recent vintage of the oral agreement as set forth in Nicholaw’s FAC is disingenuous. There is no doubt the allegations fly in the face of statements made under oath by him and his agents throughout these lengthy proceeds. We come to the conclusion that the trial court properly sustained the demurrer without leave to amend, if judicial notice of Nicholaw’s contradictory pleadings was proper.
Before reaching the question of the propriety of the trial court taking judicial notice of the inconsistent documents and other testimony of Nicholaw in these extensive proceedings, we note that one thing is clear from the decisional case law. The principle is well established that in order to determine whether an oral agreement violates the statute of frauds, the courts are required to look to the terms of the agreement itself. The court in Lacy v. Bennett, supra, articulated this principle as follows: “Defendant’s second contention on appeal is that this oral loan agreement is invalid under the statute of frauds being an agreement which by its terms is not to be performed within a year from the making thereof. (Civ. Code, § 1624, subd. 1.) The test for determining whether an oral contract is not to be performed within a year lies wholly within its terms. (Sessions v. Southern Calif. Edison Co., 47 Cal.App.2d 611, 616.) The terms of the oral agreement may by express provision specify that the duty is not to be performed within a year, or by clear implication make it evident from the subject matter of the contract that a period longer than one year was contemplated by the parties. (Swift v. Swift, 46 Cal. 266.)” (Lacy v. Bennett, supra, 207 Cal.App.2d at p. 800.)
Judicial notice of Nicholaw’s inconsistent pleading, documents and sworn testimony was proper.
We are persuaded that the issue is properly laid to rest by the conclusion found in the respondent’s brief on appeal where Infinity states: “However, ‘[f]acts once alleged . . . cannot be withdrawn from consideration by merely filing [another] pleading omitting them without explanation.’ (Neal v. Bank of America Nat. Trust & Savings Assn. (1949) 93 Cal.App.2d 678, 682 (citations omitted) [affirming dismissal of complaint that was reiteration of prior pleading, with some facts omitted].) Nicholaw cannot deny, or prevent a court from taking judicial notice of, the fact that he previously admitted that the final payment of the settlement agreement was due ‘on January 1, 2007.’ (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-84 [upholding judicial notice of prior pleading where it was inconsistent with the allegations of the amended complaint].)”
In conclusion, the oral agreement settling the case was barred by the statute of frauds in that Nicholaw persistently represented in prior proceedings that the agreement was to be fully performed in January 2007 and he should not be permitted to prevail in a late attempt to plead around the statute of frauds as attempted in the filing of his FAC by stating that the settlement agreement was to be completed on or before January 2007.
This brings us to final issue of whether the trial court committed error in denying Infinity’s motion for sanctions by reason of Nicholaw’s filing of a “. . . frivolous and patently false First Amended Complaint” Infinity relies on section 128.5 of the Code of Civil Procedure as authority for its motion.
Nicholaw responds to the sanctions contention by Infinity in his “Responsive Brief On Cross-Appeal” by bringing to this court’s attention that the standard of review is abuse of discretion. Nicholaw states: “The standard of review of a denial of a motion for sanctions, which is a discretionary trial court ruling, is ‘abuse of discretion.’ (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under the ‘abuse of discretion’ standard of review, appellate courts may only disturb discretionary trial court rulings upon a showing of ‘a clear case of abuse’ and ‘a miscarriage of justice.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) The abuse of discretion standard measures whether, given the established evidence, the lower court’s action ‘falls within the permissible range of options set by the legal criteria.’ (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) The ‘abuse of discretion’ standard is not met simply by arguing a different ruling would have been ‘better.’ Discretion is ‘abused’ only when, in its exercise of discretion, the trial court ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ (Denham v. Super.Ct. (Marsh & Kidder) (1970) 2 Cal.3d 557, 566 (internal quotes and citation omitted); Walker v. Super.Ct. (Residential Construction Enterprises) (1991) 53 Cal.3d 257, 272; Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 393 [‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion’].)”
Nicholaw justifies his conduct in the action by stating as follows: “No violation of Section 128.7, subdivision (b)(1), occurs unless the primary purpose of the FAC is to harass Infinity or cause unnecessary delay or needless expense. The trial court implicitly found that the FAC’s primary purpose is to pursue a claim for breach of an oral agreement that is not barred by the Statute of Frauds. Indeed, the FAC was timely filed following the trial court’s prior grant of leave to amend. The FAC alleges that Nicholaw’s counsel specifically told Infinity’s counsel that Nicholaw had to accept a prepayment at any time.”
We conclude that the trial court was well within its discretion in denying Infinity’s motion for sanctions in this extensive and diligently maintained action.
DISPOSITION
The judgment is affirmed. Each party to bear their own costs of appeal.
We concur: PERLUSS, P.J. ZELON, J.
“(b) By presenting to the court, . . . a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. [¶] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
“(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.”