Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC396645, Thomas H. Cahraman, Judge.
Robert E. Scott & Associates, Robert E. Scott; Law Office of Michael Creamer, Michael Creamer; and Steve R. Young for Plaintiff and Appellant.
Ealy, Hemphill, Blasdel & Oleson and Diane C. Blasdel for Defendants and Respondents.
OPINION
King, J.
I. INTRODUCTION
Plaintiff Violet Realty, Inc. (Violet) filed suit against the County of Riverside (the County) and Chicago Title, seeking to set aside a nonjudicial foreclosure sale of Violet’s 10-acre property in Romoland. The sale was conducted pursuant to a trust deed securing a note in the principal sum of $500,000, which Violet originally executed in favor of the County in 1990. Chicago Title acted as trustee and conducted the sale. In May 2002, the County took title to the property pursuant to the trustee’s deed.
In a prior action filed in 1992, Violet sought to cancel the note and deed of trust on the grounds they were void for lack of consideration. The County filed a cross-complaint against Violet and other parties. In 1994, Violet, the County, and other parties entered into a settlement agreement, which provided, in part, that the note would be modified regarding the amount of monthly payments due. Thereafter, Violet and the County dismissed their complaint and cross-complaint against each other, with prejudice.
In its operative first amended complaint (FAC) in the present action, Violet sought to set aside the foreclosure sale on the grounds the note and trust deed were void for lack of consideration—the same grounds Violet alleged for cancelling the note and trust deed in its 1992 action against the County. Defendants moved for summary judgment on Violet’s FAC, on the grounds that Violet’s repeated allegation that the note and trust deed were void for lack of consideration was barred by the doctrine of res judicata. The trial court agreed and granted the motion.
After the court issued its ruling granting defendants’ motion but before judgment was entered in favor of defendants, Violet filed a motion seeking leave to file a second amended complaint. The trial court denied Violet’s motion, and entered judgment in favor of defendants. Violet appeals, claiming defendants’ motion for summary judgment was erroneously granted and Violet’s motion for leave to file a second amended complaint was erroneously denied.
We affirm. We conclude there are no triable issues of material fact and the FAC is indeed barred by the doctrine of res judicata. Our conclusion is based on the allegations of Violet’s current FAC, the allegations of its prior complaint against the County in the 1992 action, and the dismissal of that action, with prejudice. We further conclude that Violet’s motion to file a second amended complaint was properly denied.
II. DISCUSSION
We first address Violet’s claim that defendants’ motion for summary judgment was erroneously granted.
A. Standard of Review on Summary Judgment
A trial court properly grants summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subds. (b) & (o)(2); Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 849.)
The moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the defendant has met this burden of production, he causes a shift. The burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. From commencement to conclusion, however, the moving party defendant bears the burden of persuasion that no triable issue of fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.)
“On appeal, we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ [Citation.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.) For the reasons that follow, we independently conclude there are no triable issues of material fact and defendants are entitled to judgment as a matter of law.
B. The Evidence Submitted on Defendants’ Motion
In support of their motion, defendants submitted declarations by the County’s outside counsel, Diane C. Blasdel, and Deputy County Counsel Lee Vinocour. Ms. Blasdel and Mr. Vinocour described the history of the litigation between Violet and the County beginning in 1992.
In opposition, Violet submitted a declaration by Alan Hasso, a former officer and director of Violet, discussing the 1990 loan transaction and subsequent litigation between the County and Violet. Violet also submitted a declaration by its attorney, Michael Creamer, authenticating documents related to the foreclosure sale, and a declaration by Thelma Gray, a former employee of the Economic Development Agency (EDA) of the County.
In addition, the parties requested, and the trial court took judicial notice of, numerous court records. These included Violet’s and the County’s complaint and cross-complaint in the 1992 action, the dismissals, with prejudice, of those pleadings, and Violet’s FAC in the current action.
The following summarizes the evidence submitted in support of and in opposition to defendants’ motion, and is reflected in the parties’ separate statements of disputed and undisputed material facts. As will appear, the pertinent facts are undisputed.
1. The 1990 Loan Transaction
In 1989, Lakeside Chevrolet (Lakeside), an automobile dealer for General Motors, was operating its dealership on Violet’s 10-acre property on Trumble Road near Highway 74 and Interstate 215 in Romoland. Lakeside was leasing the property from Violet. In July 1989, a newspaper article appeared in The Press-Enterprise, indicating that Lakeside was interested in relocating its dealership to a new auto mall in the City of Riverside.
In August 1989, representatives of the County’s EDA met with Lakeside’s owner, Mr. Tibbetts, and proposed to provide Lakeside with a package of incentives if Lakeside would stay at its Romoland location. The proposed incentives included a $500,000 loan to be issued under the federal program entitled “Community Development Block Grant.” The loan was to be used to construct new buildings, infrastructure, and other improvements on the Romoland property. A total of $2 million in improvements were to be constructed. The additional $1.5 million in necessary funding was to be obtained from private sources. The entire $2 million was to be repaid over a 15-year period from a sales tax rebate program.
Following the August 1989 meeting, Mr. Hasso understood that the $500,000 loan would be made to either Lakeside or Violet, and if it was made to Lakeside it would be secured by personal property and future sales tax rebates. If, on the other hand, the loan was made to Violet, it would be secured by a trust deed on Violet’s Romoland property. In that event, Mr. Hasso also understood that Violet would control the disbursement of the $500,000 sum and would assist in processing any necessary applications.
Mr. Vinocour acknowledges, and the parties agree, that the $500,000 loan was made to Lakeside, not to Violet, and that Violet never received any part of the $500,000 sum.
A dispute concerning the note and trust deed arose after an escrow was opened between the County and Violet at Lincoln Title in Riverside. Mr. Vinocour states, “The reason there was an escrow with Violet Realty was so that the County could obtain a title policy for the real property for which the County was obtaining a deed of trust against, which was owned by Violet Realty . . . . The note and deed of trust from Violet Realty were to secure the loan being provided by the County to Violet Realty’s tenant, Lakeside Chevrolet.”
Mr. Hasso had a different understanding of the terms of the escrow. The escrow instructions provided, and Mr. Hasso understood, that the $500,000 in loan proceeds were to be deposited into the escrow in consideration for a $500,000 note secured by a trust deed on the Romoland property. The escrow agent was to deliver to the County a signed note and recorded trust deed in exchange for and upon the condition that the $500,000 sum was deposited into the escrow.
On February 27, 1990, Mr. Hasso executed a note on behalf of Violet in the principal sum of $500,000, together with a trust deed on the Romoland property to secure the note. The instruments were deposited into the escrow at Lincoln Title, and Lincoln Title recorded the trust deed in March 1990. Thereafter, Lincoln Title delivered the note and trust deed to the County, even though the County never deposited any funds into the escrow.
The note provided that installment payments would begin in April 1993, but did not state the amount of installment payments due. Mr. Hasso states that the installment payment term was left “blank” and the note was never completed because “Lincoln Title was going to insert the information on the installment payments by Violet after [the] County funded the $500,000 into [the escrow].” The note did provide, however, that six percent interest would accrue on the outstanding principal balance of $500,000, and that all outstanding principal and interest would become immediately due at the option of the holder in the event any installment payment was not paid.
The County paid the entire $500,000 sum to Lakeside pursuant to a separate loan agreement with Lakeside. Violet was not a party to the loan agreement between the County and Lakeside, did not participate in its preparation, and did not receive a copy of it until after the 1992 litigation commenced in the case of Violet Realty, Inc. v. County of Riverside et al., case No. CIV218581 (Violet I). Violet claims that Lakeside never used any part of the $500,000 loan to improve the Romoland property, and in January 1992 Lakeside and its owner, Mr. Tibbetts, filed bankruptcy.
2. The 1992 Litigation in Violet I and Subsequent Settlement Agreements
In 1992, Violet filed its complaint in Violet I. Violet sought to cancel the note and deed of trust on the grounds the instruments were unsupported by consideration because it never received any part of the $500,000 sum in exchange for the instruments. Violet also sought damages from Lincoln Title for forwarding the instruments to the County without requiring the County to deposit the loan amount into escrow.
In the same action, the County filed a cross-complaint against Violet, Mr. Hasso, and one of Lakeside’s lenders, La Sierra Financial Services, Inc. (La Sierra). The County claimed the note had been funded through the County’s loan agreement with Lakeside, and that La Sierra, Violet, and Mr. Hasso had conspired to cause the County to loan the $500,000 sum to Lakeside with the intent of causing Lakeside to pay the sum to La Sierra in partial satisfaction of a preexisting debt that Lakeside owed to La Sierra.
In his current declaration, Mr. Hasso states the following: He was a shareholder and director of La Sierra and oversaw all of Lakeside’s dealings with La Sierra. In January 1989, La Sierra extended a $1.35 million loan to Lakeside which was due on February 15, 1991. In January 1991, La Sierra and Lakeside entered into an agreement which provided that La Sierra and Violet would guarantee Lakeside’s obligation to the County for the $500,000 loan. The guarantee was conditioned on Lakeside’s completion of 84 monthly payments of $7,500 to La Sierra. After making nine payments of $7,500 to La Sierra, Lakeside defaulted on its loan obligation to La Sierra.
In February 1994, all of the parties in Violet I, including Violet, Mr. Hasso, La Sierra, the County, and Lincoln Title, which was then known as Old Republic, attended a settlement conference before Judge John Barnard. Between late February and early March 1994, all of the parties, including La Sierra, signed a settlement agreement fully resolving their respective claims in Violet I. We refer to this agreement as Settlement Agreement #1.
Settlement Agreement #1 was only two pages in length, excluding signatures, and provided that the parties would later sign a “[f]ormal settlement agreement.” Settlement Agreement #1 provided that: (1) Violet would name La Sierra as a Doe defendant; (2) La Sierra would stipulate to a $25,000 judgment in favor of Violet; and (3) Old Republic/Lincoln Title would pay Violet $47,500. Regarding the note and trust deed, Settlement Agreement #1 incorporated by reference a letter dated January 24, 1994, from Violet’s counsel, Jennifer J. Hasso-Najm, to Mr. Vinocour, modifying the terms of the note. In part, the letter provided that Violet would pay monthly installments of 25 percent of the net rental income it received on the Romoland or “Trumble Road” properties. Settlement Agreement #1 was contingent on the court’s approval of its terms as a good faith settlement, and also provided that it could be enforced pursuant to Code of Civil Procedure section 664.6.
In February 1994, Violet named La Sierra as a Doe defendant. In April 1994, and before the parties signed a more “formal” settlement agreement, La Sierra was forced into involuntary bankruptcy. In the bankruptcy proceeding, Old Republic/Lincoln Title sought relief from the automatic stay so that it and the other parties in Violet I could proceed with their more “formal” settlement agreement. The bankruptcy court granted relief from the stay as to all parties except La Sierra. Old Republic/Lincoln Title then filed proofs of claim in the bankruptcy proceeding on behalf of itself, the County, and Violet, to preserve each party’s respective claims against La Sierra in the bankruptcy proceeding.
In late 1994, all of the parties to Settlement Agreement #1, except La Sierra, signed a more “formal” settlement agreement which we refer to as Settlement Agreement #2. La Sierra never signed Settlement Agreement #2. Settlement Agreement #2 contains substantially the same terms and conditions as Settlement Agreement #1, including a mutual general release of claims by and between all parties, a waiver of unknown claims, and a statement that it is contingent on the trial court’s approval of its terms as a good faith settlement. It also provides that it was intended to be “effective as a full and final accord and satisfactory release of each and every matter specifically or generally referred to.”
Like Settlement Agreement #1, Settlement Agreement #2 incorporates the January 24, 1994, letter from Attorney Jennifer J. Hasso-Najm, modifying the terms of the note. More specifically, Settlement Agreement #2 provides that Violet was to pay the County 25 percent of the “net rental income” from “each of the Trumble Road properties” until the $500,000 sum was repaid in full. Payments were to begin on April 1, 1995, the first day of the month following the court’s approval of the terms of the agreement as a good faith settlement. The agreement also stated that Violet could repay the entire $500,000 sum at any time, without penalty, and that no interest, attorney fees, or other expenses were to be added to the $500,000 sum.
In February 1995, and after Settlement Agreement #2 was signed by all parties to Violet I except La Sierra, Old Republic/Lincoln Title filed the motion for good faith settlement in Violet I. The County joined the motion and Violet did not oppose it. The motion was granted in March 1995. In May 1995, Violet dismissed its complaint in Violet I against the County and Old Republic/Lincoln Title, with prejudice; however, Violet did not dismiss its complaint against La Sierra. Also in May 1995, the County and Old Republic/Lincoln Title dismissed their respective cross-complaints in Violet I against all parties, with prejudice, including La Sierra.
In June 1995, the County, Old Republic/Lincoln Title, and La Sierra signed a third settlement agreement, Settlement Agreement #3. Violet was not a party to Settlement Agreement #3. Settlement Agreement #3 consists of a mutual general release of claims by and between the County, Old Republic/Lincoln Title, and La Sierra. In Settlement Agreement #3, La Sierra acknowledged that the County and Old Republic/Lincoln Title had previously dismissed, with prejudice, their respective cross-complaints against La Sierra in Violet I. In June 1995, La Sierra filed a dismissal, with prejudice, of its cross-complaint against the County, Old Republic/Lincoln Title, and all unnamed defendants.
Mr. Hasso claims that, in 1995 and 1996, La Sierra, through its bankruptcy trustee, filed “a number of actions” against Alan Hasso, his brother Norman Hasso, and his sister May Hasso. Alan Hasso claims he “had to expend more than $400,000 in litigation fees and costs because of the refusal by La Sierra and its Chapter 11 Trustee to honor” Settlement Agreement #1, which La Sierra did sign, or execute Settlement Agreement #2. La Sierra never stipulated to a $25,000 judgment in favor of Violet, nor did it ever pay Violet any part of the $25,000 sum it agreed to pay Violet pursuant to Settlement Agreement # 1.
3. The Motion to Enforce Settlement Agreement #2 and Subsequent Proceedings
Violet did not make any payments to the County on the note, including the initial installment payment due on April 1, 1995. Accordingly, in November 2000, the County filed a motion in Violet I to enforce Settlement Agreement #2; or, alternatively, set aside the dismissals in Violet I. Violet opposed the motion, and the court denied it after a hearing in March 2001. At the hearing, the court reasoned that Settlement Agreement #2 was “not subject to being reduced to judgment because it was not signed by all the parties,” namely, La Sierra.
Defendants have requested that this court take judicial notice of the opposition papers Violet filed in response to the County’s motion to enforce Settlement Agreement #2 in Violet I. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) These opposition papers were not included in the documents judicially noticed by the trial court on defendants’ motion for summary judgment. We hereby grant defendants’ request; however, for the reasons discussed below we find Violet’s opposition papers and their contents irrelevant to the issues raised on defendants’ motion.
The court explained that the terms of Settlement Agreement #2 stated that it would be in full force upon its execution by all of the parties, and because one party did not sign it the court had no jurisdiction to enforce it pursuant to the terms of Code of Civil Procedure section 664.6. Furthermore, the court noted, the filing of the dismissals with prejudice caused the court to lose subject matter jurisdiction to enforce the agreement. In its order denying the motion, however, the court expressly made “no findings as to the enforceability of the parties’ settlement agreements.” The County never sought review of the order denying its motion.
In the fall of 2001, the County commenced nonjudicial foreclosure proceedings on the note and trust deed, with Chicago Title acting as trustee. In March 2002, Violet filed a second action against the County and its first action against Chicago Title in case No. RIC372377 (Violet II), seeking to enjoin the foreclosure sale and cancel the note and trust deed on the grounds the instruments were void for lack of consideration—the same claim Violet asserted in Violet I as grounds for cancelling the instruments.
The court in Violet II issued a temporary order enjoining the foreclosure sale, but denied Violet’s noticed motion for a preliminary injunction. Shortly thereafter, the foreclosure sale took place and the County obtained title to the property through Chicago Title’s trustee’s deed, recorded on May 2, 2002.
In January 2003, Violet filed its third action against the County and its second action against Chicago Title in case No. RIC387352 (Violet III). The County demurred to Violet’s complaint in Violet III on the grounds another action, Violet II, was pending between the same parties. Shortly before the court sustained the demurrer, Violet filed the present action in case No. RIC396645 (Violet IV) in July 2003. The County then demurred to Violet’s complaint in Violet IV on the grounds that other actions were pending. Before that demurrer could be heard, Violet dismissed its complaints in Violet II and Violet III, leaving only its present action in Violet IV pending.
Violet then filed its current FAC in the present action, Violet IV. The County and Chicago Title generally denied the allegations of the FAC. Thereafter, Violet moved for summary judgment on the FAC on the grounds the note and trust deed were void for lack of consideration. That motion was denied. Defendants then filed the current motion for summary judgment on the FAC, on the grounds its allegations are barred by the doctrine of res judicata. The trial court granted defendants’ motion, and issued a written ruling explaining its reasoning.
After the court issued its ruling, but before judgment was entered in favor of defendants, Violet filed a motion seeking leave to file a second amended complaint. The County opposed that motion, and the court denied it. Thereafter, judgment was entered in favor of defendants, and Violet appealed.
C. Defendants’ Motion Was Properly Granted
On this appeal, Violet argues that defendants’ motion for summary judgment was erroneously granted for reasons related to Violet’s prior claim in Violet I—that is, that the note and trust deed are void for lack of consideration because Violet never received any part of the $500,000 sum in exchange for the note and trust deed. We find this argument unpersuasive. Instead, we agree with defendants that their motion for summary judgment was properly granted because Violet’s FAC is barred by the doctrine of res judicata.
As defendants argue, Violet’s FAC is based on the same allegations that Violet asserted in its prior complaint against the County in Violet I, and Violet’s dismissal of that complaint, with prejudice, operates as a final judgment on the merits of that complaint. Furthermore, Violet’s current FAC does not allege any new bases for voiding the note and trust deed, including, for example, any allegations of irregularities in the foreclosure proceedings. We explain.
1. Res Judicata and the Primary Rights Doctrine
“The doctrine of res judicata ‘describes the preclusive effect of a final judgment on the merits.’ [Citation.] It promotes judicial economy as it ‘“‘precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.’”’ [Citation.] The doctrine has two aspects: the first is claim preclusion, otherwise known as res judicata, which ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citations.] The second is issue preclusion, or collateral estoppel, which ‘“precludes relitigation of issues argued and decided in prior proceedings.”’ [Citation.]” (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326-1327 (Alpha Mechanical); Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).)
In California, the doctrine of res judicata is based upon on the primary right theory. (Mycogen, supra, 28 Cal.4th at p. 904.) “‘The primary right theory is a theory of code pleading that has long been followed in California. It provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] . . .
“‘As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” [Citation.] The primary right must also be distinguished from the remedy sought: “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” [Citation.]’” (Mycogen, supra, 28 Cal.4th at p. 904, quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682; see also Boeken v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 1391, 1398.)
In other words, “the primary right theory determines whether two separate actions concern a single cause of action. [Citation.] . . . ‘“‘[T]he harm suffered’”’ is ‘“‘the significant factor’”’ in defining a primary right. [Citations.]” (Alpha Mechanical, supra, 133 Cal.App.4th at p. 1327.)
Furthermore, for purposes of res judicata, a dismissal of an action with prejudice “is equivalent . . . to a judgment on the merits in favor of the defendant who is dismissed,” and “‘as such bars further litigation on the same subject matter between the parties.’” (Long Beach Grand Prix Assn. v. Hunt (1994) 25 Cal.App.4th 1195, 1197-1198, quoting Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820-821.)
A dismissal with prejudice is the modern name for a common law retraxit. (Torrey Pines Bank v. Superior Court, supra, 216 Cal.App.3d at p. 820.) “A retraxit is equivalent to a judgment on the merits and as such bars further litigation on the same subject matter between the parties. [Citations.]” (Ibid.)
2. Analysis
A careful review of Violet’s operative second amended complaint in Violet I and its FAC in the current action, Violet IV, shows that the allegations of the two complaints are based on the same primary right—specifically, that the note and trust deed are void for lack of consideration because the County did not pay Violet any part of the $500,000 sum in exchange for the instruments. Although Violet sought different relief in Violet I and Violet IV—cancellation of the instruments in Violet I and setting aside the nonjudicial foreclosure sale in Violet IV—the alleged injury or basis for relief in both actions is the same. It is that Violet did not receive any money in exchange for the note and trust deed, and for this reason the instruments are void and should be given no force or effect. For this reason, summary judgment was properly granted in favor of the County.
Summary judgment was also properly granted in favor of Chicago Title. As one court long ago reasoned, “a judgment in favor of the immediate actor [here, the County] is a bar to an action against one whose liability is derivative from or dependent upon the culpability of the immediate actor [here, Chicago Title].” (Triano v. F.E. Booth & Co., Inc. (1932) 120 Cal.App. 345, 348.) And here, the FAC alleged only that Chicago Title’s liability to Violet was derivative of the County’s liability.
More specifically, the FAC alleged that Chicago Title was negligent in conducting the foreclosure because it knew or should have known that the note and trust deed were invalid. But as the trial court reasoned, “Violet cannot hold Chicago Title liable for negligently failing to recognize that the note and trust deed were void, unless Violet can proceed in trial to prove that those instruments were in fact void.” In other words, Violet could not prove its case against Chicago Title because it was barred from proving its case against the County. We agree.
3. Violet’s Additional Arguments Are Without Merit
In its opening brief, Violet advances various additional arguments in support of its claim that defendants’ motion for summary judgment was erroneously granted. These arguments are essentially the following: (1) Settlement Agreement #3 terminated the County’s rights under the note because it constitutes a “full accord and satisfaction” of all of the County’s prior claims against Violet; (2) the general release clauses in Settlement Agreements #1 and #2 released Violet from its obligations under the note, or modified the Note resulting in a “zero balance” due on the note; and (3) the County’s dismissal with prejudice of its cross-complaint against Violet in Violet I terminated all rights the County had against Violet other than pursuant to the settlement agreements, and pursuant to the settlement agreements there was a “zero balance” due on the Note. None of these arguments have merit. We address the arguments in the order raised.
(a) Settlement Agreement #3/Violet’s Accord and Satisfaction Claim
Violet first argues that Settlement Agreement #3, which was entered into by and between the County, Old Republic/Lincoln Title, and La Sierra, but not Violet, extinguished all of the County’s claims against Violet and released Violet from any further liability on the note. We reject this claim, because it is based on an erroneous interpretation of the “accord and satisfactory release” clause of Settlement Agreement #3 in combination with unrelated allegations in the County’s cross-complaint against Violet and La Sierra in Violet I.
As Violet points out, paragraph 2.0 of Settlement Agreement #3 states: “It is the intention of the parties executing this Agreement that it shall be effective as a full and final accord and satisfactory release of each and every matter specifically or generally referred to.” Violet reasons that this “accord and satisfactory release” clause encompasses the matters generally referred to in paragraph 1.2 of the agreement, in which the County released “La Sierra” and “its agents” from “any and all claims” arising from any matter “connected with the relationships between the parties prior to the date of this Agreement.” (Italics added.) Violet then reasons that Violet was La Sierra’s agent for purposes of Settlement Agreement #3, and Violet’s liability to the County on the note was covered by the County’s general release of claims in favor of La Sierra in Settlement Agreement #3.
The latter part of Violet’s reasoning is based on the County’s cross-complaint in Violet I, which alleged that: (1) La Sierra and Violet were agents of one another; (2) Violet and La Sierra jointly urged Lakeside to pay the proceeds from the County’s loan to Lakeside; and (3) Violet and La Sierra concealed information from the County and conspired with each other to defraud the County by having it loan money to Lakeside, with La Sierra receiving the proceeds. In sum, Violet maintains that Settlement Agreement #3, by releasing La Sierra from any obligation it may have had to the County for the $500,000 loan proceeds, also released Violet, La Sierra’s agent, from any obligation Violet had on the note.
Violet’s argument fails because Settlement Agreement #3, on its own terms and when read in light of the contents of the County’s cross-complaint in Violet I, is not reasonably susceptible to Violet’s interpretation that it effected a release of Violet from Violet’s obligations on the note. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 [whether a written agreement is reasonably susceptible to a given interpretation is a question of law for the court].) Violet is not a party to Settlement Agreement #3, and the agreement nowhere mentions Violet, either as an agent of La Sierra or as a party to the agreement. Nor does the agreement anywhere mention the note. In sum, the agreement merely constitutes a mutual release of claims by and between the parties to it, namely, the County, La Sierra, and Old Republic/Lincoln Title, but not Violet. The agreement does not release Violet from its obligation on the note.
Violet further argues that Settlement Agreement #3 constitutes an “accord and satisfaction” of the County’s claims against La Sierra for the loan proceeds and, as such, extinguishes Violet’s obligation on the note. Violet reasons that an accord and satisfaction releases “all alleged debtors even if none of them are a party to the accord.” Again, we disagree with Violet’s interpretation of Settlement Agreement #3. An accord is “an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled.” (Civ. Code, § 1521.) Settlement Agreement #3 does not constitute an accord and satisfaction, because it does not substitute a new agreement or obligation in place of the County’s claim against La Sierra for the loan proceeds or any related claims, including Violet’s obligation on the note. Instead, Settlement Agreement #3 merely releases La Sierra from the County’s claim against it for the loan proceeds.
(b) Settlement Agreements #1 and #2/Violet’s “Zero Balance Due” Claim
Violet does not dispute that it never paid the County any money on the note. It is also indisputable that Settlement Agreements #1 and #2 modified the terms of the note to provide that Violet would pay the County monthly payments of 25 percent of the net rental income Violet collected on the Trumble Road properties, until the $500,000 principal balance was paid in full. The agreements also provided, through their incorporation of the January 1994 letter, that if Violet’s tenant vacated the property Violet would continue making monthly payments to the County at the monthly rate existing at the time the property was vacated. In addition, no interest, attorney fees, or other expenses would be added to the $500,000 principal sum, provided the monthly payments were made. Violet’s monthly payments were to begin on April 1, 1995, the first day of the month following the month that Old Republic/Lincoln Title’s motion for good faith settlement was granted.
Based on the modified terms of the note and the declaration of Alan Hasso, Violet argues it is indisputable that it owed no money to the County on the note. Violet reasons that, because Settlement Agreements #1 and #2 provided that Violet was entitled to a $47,500 payment from La Sierra and Violet never received this payment, Violet would have owed no money to the County on the note even if Violet had made the 25 percent rental payments “in the time period after [the] County’s dismissal with prejudice.” In other words, Violet claims it owed the County no money on the note, at least through the time the County recorded its notice of default in the fall of 2001, because during this period the monthly payments Violet would have made to the County were more than offset by the $47,500 sum that La Sierra failed to pay Violet.
Violet is mistaken. Settlement Agreements #1 and #2 nowhere state that La Sierra’s $47,500 payment to Violet was to be credited against Violet’s $500,000 obligation to the County on the note. Violet agreed to pay the County $500,000 on the note, regardless of whether it received any part of the $47,500 sum from La Sierra. Furthermore, Violet consistently conducted itself as though Settlement Agreement #2 was valid and enforceable between Violet, the County, and Old Republic/Lincoln Title, even though La Sierra never signed Settlement Agreement #2. Violet did not oppose Old Republic/Lincoln Title’s motion for good faith settlement on Settlement Agreement #2, which was granted, and Violet later dismissed its complaint in Violet I against the County and all other parties to Settlement Agreement #2 except La Sierra. And in apparent reliance on Violet’s assent to Settlement Agreements #1 and #2, the County and Old Republic/Lincoln Title also dismissed their respective cross-complaints against Violet in Violet I, with prejudice.
(c) The Effect of the County’s Dismissal With Prejudice
Violet next claims that the County’s dismissal with prejudice of its cross-complaint in Violet I terminated “all rights [the County had] against Violet other than any rights under the settlement agreements.” We agree; however, pursuant to Settlement Agreements #1 and #2, the County retained its right to enforce the note, as modified, together with the trust deed securing the balance due on the note through nonjudicial foreclosure proceedings.
Violet relies on Mycogen, supra, 28 Cal.4th at page 900, where it was held that an action seeking declaratory relief, together with additional, coercive relief is not exempt from the claim preclusion aspect of res judicata. The County sought declaratory and other relief against Violet in its cross-complaint in Violet I. In part, the County sought a determination that the note and trust deed were enforceable against Violet based on the consideration given to Lakeside, and a determination of the amount, if any, due on the note. Because the County dismissed its cross-complaint with prejudice, Violet argues that the County is collaterally estopped from asserting any rights under the note and trust deed, or enforcing the instruments, through nonjudicial foreclosure or otherwise.
Violet’s reasoning completely disregards the indisputable fact that, pursuant to Settlement Agreements #1 and #2, the County preserved its right to enforce the note, as modified, and the trust deed securing the balance due on the note through nonjudicial foreclosure proceedings. Indeed, Settlement Agreements #1 and #2 did not cancel the note and trust deed; they merely modified the terms of the note regarding the monthly payments and principal balance due.
And, although the County’s dismissal with prejudice of its cross-complaint in Violet I means that the County is estopped from seeking to enforce the same primary rights in another action against Violet (Mycogen, supra, 28 Cal.4th at p. 904), it does not mean that the County is estopped from enforcing its rights under Settlement Agreements #1 and #2. Indeed, “[r]es judicata is not a bar to claims that rise after the initial complaint is filed.” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) The County’s rights under Settlement Agreements #1 and #2 arose after it filed its cross-complaint in Violet I, and as such are not based on the same primary rights asserted in the cross-complaint.
Furthermore, the trial court’s denial of the County’s motion in Violet I to enforce Settlement Agreement #2 against Violet did not preclude or estop the County from pursuing nonjudicial foreclosure proceedings on the note and the trust deed. In denying the motion, the court correctly explained that Settlement Agreement #2—the agreement the County was seeking to enforce—was not “subject to being reduced to judgment” under Code of Civil Procedure section 664.6 because one party, La Sierra, had not signed it. And in its order denying the motion, the court made “no findings as to the enforceability of the parties’ settlement agreements.”
Moreover, it is indisputable that Settlement Agreement #2 affirmed the note and trust deed as modified, and that the enforceability of the note and trust deed against Violet are not dependent upon the enforceability of Settlement Agreement #2 as a judgment against Violet, La Sierra, or any other party or nonparty. It follows that the County was free to enforce the note and trust deed against Violet through nonjudicial foreclosure proceedings.
Defendants argue that Violet made a judicial admission in its opposition to the County’s motion in Violet I to enforce Settlement Agreement #2, namely, that Settlement Agreement #2 was unenforceable, and that Violet is taking an inconsistent position on this appeal, namely, that Settlement Agreement #2 modified the terms of the note and that there was a zero balance due on the note at the time the foreclosure proceedings commenced. Violet’s interpretation of Settlement Agreement #2, whether consistent or inconsistent, is not binding on this court, however. The existence of Settlement Agreement #2 is undisputed, and the interpretation of its terms is a question of law. (See, e.g., Winet v. Price, supra, 4 Cal.App.4th at p. 1166.)
(d) The FAC is Not Based on Any New Facts or Primary Rights
Violet further argues that the doctrine of res judicata does not bar its FAC in Violet IV because the FAC is based on rights that arose after Violet dismissed its complaint with prejudice in Violet I. Violet maintains that its current FAC “addresses wrongful conduct by [the] County that occurred after the May 17, 1995[,] dismissals.” Violet is apparently referring to the County’s or Chicago Title’s conduct of the nonjudicial foreclosure in May 2002.
As the trial court recognized, the problem with this argument is that Violet’s FAC is in fact based on the same primary right that Violet asserted in its complaint in Violet I—that the note and trust deed are void for lack of consideration. (Mycogen, supra, 28 Cal.4th at p. 904.) The FAC pointedly does not allege that there were any irregularities in the foreclosure sale. For example, the FAC does not allege that the amount stated in the notice of default was erroneously calculated. Instead, the FAC only alleges there was a “zero balance” due on the note because the note and trust deed were void for lack of consideration—the same primary right Violet asserted in its complaint in Violet I. Violet’s purportedly separate claim on this appeal that the notice of default states a “fictional debt” is based on the same allegation—that the note and trust deed are void for lack of consideration.
Violet also asserts that the County had a duty to produce evidence, in support of its motion for summary judgment, to support the $573,934.71 amount stated in its notice of default on the trust deed. Violet is again mistaken. A defendant moving for summary judgment need only address the issues raised by pleadings, and the plaintiff cannot bring up new, unpleaded issues in opposition to the defendant’s motion. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4; Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal.App.3d 1608, 1613-1614.) In the trial court and on this appeal, Violet has attempted to raise unpleaded issues concerning defects or irregularities in the foreclosure sale, including an assertion that the amount stated in the County’s notice of default was inaccurate. However, no such claims are alleged in Violet’s FAC. Violet is therefore precluded from raising any such claims in opposition to defendants’ motion for summary judgment on the FAC.
As discussed, defendants moved for summary judgment on Violet’s current FAC in Violet IV, on the grounds the FAC is barred by principles of res judicata. The motion was properly granted because the allegations of the FAC are based solely on the same primary right that Violet asserted in Violet I—that the note and trust deed are void for lack of consideration. The only evidence necessary to prove that defendants are entitled to summary judgment consists of: (1) Violet’s FAC; (2) Violet’s complaint in Violet I; and (3) Violet’s dismissal with prejudice of its complaint in Violet I. For purposes of defendants’ motion, it is immaterial whether the amount stated in the County’s notice of default was accurate, or whether there were any other defects or irregularities in the foreclosure sale.
D. Violet’s Motion for Leave to File an Amended Complaint Was Properly Denied
After the trial court issued its ruling granting defendants’ motion, but before the trial court entered judgment in favor of defendants, Violet filed a motion for leave to file a second amended complaint. Violet contends the trial court abused its discretion in denying this motion. We disagree.
Generally, a motion for leave to amend a complaint may be made at any time before judgment. (See Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1068-1069; Code Civ. Proc., § 473, subd (a).) The trial court has broad discretion to deny a motion for leave to amend a pleading, however, particularly where the proposed amended pleading fails to state facts which could not have been pleaded earlier and fails to demonstrate a reasonable excuse for the delay. (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.) We review a trial court’s denial of a motion for leave to file an amended pleading for an abuse of discretion. (Ibid.) And “‘[t]he law is well settled that a long deferred presentation of [a] proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment. [Citation.]’” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
Violet’s proposed second amended complaint alleged that the “Trustee’s deed and the notice of default as well as the notice of Trustee’s sale were improper and were part of a wrongful foreclosure” for several reasons. One of these was that the County’s notice of default stated an amount due that was “completely different” from the amount due under the terms of Settlement Agreement #1.
Broadly interpreted, this allegation suggests that the amount stated in the notice of default was substantially inaccurate, for reasons unrelated to Violet’s previously-asserted and currently-barred claim that the note and trust deed were void for lack of consideration. More specifically, the allegation suggests that the County or Chicago Title simply made a substantial error in calculating the amount due on the note. This is the only allegation in Violet’s proposed second amended complaint which differs substantially from the allegations of the FAC, and which is not clearly based on Violet’s barred claim that the note and trust deed are void for lack of consideration.
But even if Violet’s newly alleged defect in the notice of default was not based on Violet’s barred claim that the note and trust deed are void for lack of consideration, Violet utterly failed to explain when it discovered the new defect or why it waited until April 2006 to present its proposed second amended complaint. For this reason, the trial court did not abuse its discretion in refusing to grant Violet leave to amend its FAC. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 613.)
We acknowledge that Violet generally asserted in its moving papers that its delay in seeking leave to amend was due to “substantial problems with discovery” in the case. Violet attached three sets of interrogatories it had propounded to the County and Chicago Title. But Violet did not attach any responses to the interrogatories. Moreover, Violet failed to explain that the newly alleged defect in the notice of default—if that is what Violet was alleging—was based on facts that Violet had only recently discovered and was previously unable to discover with reasonable diligence. Thus, Violet failed to present an excuse for its long delay in presenting its proposed amended pleading.
Furthermore, leave to amend a complaint should only be granted when it will not prejudice the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) And here, defendants would have been prejudiced by allowing Violet leave to amend its FAC. Since March 2002, Violet filed three separate actions against defendants—Violet II, Violet III, and now Violet IV—and in each of these actions Violet sought to set aside the foreclosure sale. Even if Violet’s second amended complaint alleged new grounds for voiding the note and trust deed, or any irregularities in the foreclosure proceedings, Violet failed to show that it could not have made such allegations much earlier, or before defendants filed their motion for summary judgment on Violet’s FAC.
III. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Hollenhorst, Acting P.J., McKinster, J.