Zulli v. Mortgage Electronic Registration Systems CA2/6 ( 2015 )

Filed 1/6/15 Zulli v. Mortgage Electronic Registration Systems CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BRIAN ZULLI, 2d Civil No. B252227
(Super. Ct. No. 56-2010-00383828-CU-
Plaintiff and Appellant, OR-SIM)
(Ventura County)
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,
Defendants and Respondents.
BRIAN ZULLI, 2d Civil No. B253427
Plaintiff and Appellant,
v.
SAND CANYON CORPORATION,
Defendant and Respondent.
Brian Zulli appeals from the trial court's orders enforcing his settlement
agreement and dismissing respondents Mortgage Electronic Registration Systems, Inc.
(MERS), Litton Loan Servicing LP (Litton), Wells Fargo Bank, N.A., as trustee for
Citigroup Mortgage Loan Trust, Inc., asset-backed pass-through certificates, series 2006-
SHL1 (Wells Fargo), and Sand Canyon Corporation, formerly known as Option One
Mortgage Corporation (Sand Canyon).1 Zulli also claims the trial judge was
peremptorily disqualified from hearing the case. (Code Civ. Proc., § 170.6.) We affirm.
FACTS AND PROCEDURAL HISTORY
We have previously set forth the facts of this ongoing dispute between the
parties and do so only briefly here.2 Appellant sued respondents and other defendants
over the nonjudicial foreclosure on his now-deceased mother's residence.3 The trial court
dismissed the action after sustaining a demurrer without leave to amend, and we
dismissed appellant's appeals as untimely. Appellant then filed the instant suits. The trial
court dismissed MERS from the action after sustaining its demurrer to the first amended
complaint, and we affirmed. (Zulli v. Mortgage Electronic Registration Systems, Inc.,
supra.) The trial court subsequently dismissed Wells Fargo and Litton from the action
after sustaining their demurrer to the third amended complaint without leave to amend,
and we affirmed. (Zulli v. Litton Loan Servicing LP, supra.)
Appellant then filed a third case against respondents involving the
nonjudicial foreclosure. In addition, he attempted to add respondents back into the
instant case as unnamed "Doe" defendants. Meanwhile, the subject property was sold at
a foreclosure sale. When appellant failed to vacate the premises, Wells Fargo filed an
unlawful detainer case against him and obtained a writ of possession. Wells Fargo
contacted the Ventura County Sheriff and scheduled a lockout at the property on April
12, 2013.
On April 11, 2013, appellant and respondents MERS, Litton, and Wells
Fargo executed a settlement agreement. Respondents agreed to allow appellant to remain
on the property for five additional days. In exchange, appellant agreed to release all his
1 On our own motion, we consolidated the two appeals for purposes of decision
only.
2 (See Zulli v. Litton Loan Servicing LP (June 3, 2013, B242310) 2013 WL
2393141 [nonpub. opn.]; Zulli v. Mortgage Electronic Registration Systems, Inc. (Feb. 5,
2013, B237041) 2013 WL 428625 [nonpub. opn.].)
3 Appellant's mother was the original plaintiff. Following her death, appellant
continued the action as her personal representative and successor in interest.
2
claims against respondents and related entities, dismiss all pending lawsuits against them
within 10 days, and vacate the property and turn over possession by April 17, 2013. He
failed to do any of these things. Instead, on April 17, 2013, appellant mailed a purported
rescission of the settlement agreement to respondents.
Respondents MERS, Litton, and Wells Fargo moved to enforce the
settlement agreement to have the cases dismissed. Sand Canyon joined in the motion on
the ground that, as a servicer on the loan, it was an entity covered by the settlement
agreement. On October 28, 2013, the trial court rejected appellant's peremptory
challenge to the judge (Code Civ. Proc., § 170.6) as untimely and granted the relief
requested by respondents. Appellant appeals.
DISCUSSION
We review an order enforcing a settlement agreement de novo. (Weinstein
v. Rocha (2012) 208 Cal. App. 4th 92, 96.) The trial court's factual findings are subject to
limited review and will not be set aside if supported by substantial evidence. (Critzer v.
Enos (2010) 187 Cal. App. 4th 1242, 1253.) We review a ruling on a litigant's peremptory
challenge to the judge de novo to the extent it is based on undisputed facts. (Orion
Communications, Inc. v. Superior Court (2014) 226 Cal. App. 4th 152, 162.)
Code of Civil Procedure section 170.6 provides a mechanism, usually
referred to as a "peremptory challenge," by which a litigant may disqualify a judge from
hearing the case by filing a motion supported by an affidavit or declaration that "the
judge is prejudiced against the party or attorney 'so that the party or attorney cannot or
believes that he or she cannot have a fair and impartial trial' before the judge." (Home
Ins. Co. v. Superior Court (2005) 34 Cal. 4th 1025, 1032.) An important limitation on a
litigant's right to exercise a peremptory challenge is that "no party or attorney shall be
permitted to make more than one such motion in any one action." (Code Civ. Proc.,
§ 170.6, subd. (a)(4).)
Appellant's first peremptory challenge, against Judge Worley, was
successful. When Judge Lane was assigned to the case, appellant filed an improper
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second peremptory challenge against her, which was denied. At issue here, Judge Mink
replaced Judge Lane prior to the hearing on respondents' motion to enforce the settlement
agreement. Appellant moved to disqualify him under Code of Civil Procedure section
170.6. Because this was appellant's third such motion, Judge Mink denied it as required
by law. There was no error.
Regarding respondents' motion to enforce the settlement agreement,
appellant contends that the trial court was biased and prejudiced against him because it
found he had "no credibility." Although appellant fails to provide a transcript of the
proceeding, we assume for the sake of argument that the court made such a finding. It is
supported by substantial evidence in the record.
"In ruling on a motion to enforce settlement, [the court] necessarily has the
power to resolve factual disputes relating to the agreement." (Osumi v. Sutton (2007) 151
Cal. App. 4th 1355, 1357.) Credibility is a factual determination that is made by the trial
court rather than on appeal. (Greenwich S.F., LLC v. Wong (2010) 190 Cal. App. 4th 739,
759.) Appellant argues that he was entitled to rescission because he signed the settlement
agreement under duress.4 But appellant waited until he had received the full benefit of
the settlement agreement—he was allowed to remain in the foreclosed property for an
additional five days—and then attempted to shirk his obligations under the agreement by
purporting to rescind it. The trial court was entitled to consider this behavior in finding
appellant not credible. (See Hilberg v. Superior Court (1989) 215 Cal. App. 3d 539, 543.)
In any event, a party's threat to use legal process in a good faith effort to enforce its rights
is not duress, no matter how strong the counterparty's desire to avoid the likely outcome
4 Appellant argued that he "had no choice but to sign" the agreement because if the
lockout proceeded as scheduled he would have been forced to abandon his mother's
furniture, thus "losing [his] mother again and also betraying her."
4
of that process. (In re Marriage of Gonzalez (1976) 57 Cal. App. 3d 736, 746-747.)
DISPOSITION
The judgments are affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
BURKE, J.*
* (Judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)
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Michael Mink, Judge
Superior Court County of Ventura
Brian Zulli, in pro. per., for Plaintiff and Appellant.
Houser & Allison, Eric D. Houser, Steve W. Pornbida, for Defendants and
Respondents Mortgage Electronic Registration Systems, Inc., Litton Loan Servicing LP,
and Wells Fargo Bank, N.A., as trustee for Citigroup Mortgage Loan Trust, Inc., asset-
backed pass-through certificates, series 2006-SHL1.
Brooks Bauer and Bruce T. Bauer, for Defendant and Respondent Sand
Canyon Corporation.
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