Cadena v. Castillo CA2/5 ( 2024 )

Filed 2/23/24 Cadena v. Castillo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
IRENE CADENA, B320823
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YC072942)
NYKA CASTILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary Y. Tanaka, Judge. Affirmed.
Spierer, Woodward, Corbalis & Goldberg, Stephen B.
Goldberg, and Austin I. Trickey for Defendant and Appellant.
Klapach & Klapach and Joseph S. Klapach for Plaintiff and
Respondent.
Defendant and appellant Nyka Castillo (Nyka) appeals
from a final judgment in a partition action concerning real
property she and her mother, plaintiff and respondent Irene
Cadena (Irene), inherited from Nyka’s father and Irene’s
husband, Gonzalo Castillo (Gonzalo). Pursuant to the terms of a
settlement agreement between Irene and Nyka, which were
incorporated into an earlier interlocutory judgment in the
partition action, the final judgment awarded Irene $172,000 in
penalties for Nyka’s delay in moving out of the home on the
property prior to its sale. We consider whether Nyka can now
challenge the penalty provision giving rise to this award
notwithstanding her failure to challenge the interlocutory
judgment.
I. BACKGROUND
Prior to his death, Gonzalo established a trust that
included among its assets an ocean-view home located in
Redondo Beach, California (the property). The trust included a
bequest of the property to Irene and Nyka upon his death. In
2017, following Gonzalo’s death, Irene, as successor trustee,
deeded the property to herself and Nyka as joint tenants. A
dispute over the property ensued.
A. The Parties Settle Their Dispute
In 2018, Irene sued Nyka for ouster, ejectment, and
partition of land by sale. In her complaint, Irene alleged Nyka
took possession of the property following Gonzalo’s death and
refused to allow her access to and enjoyment of the property or, in
the alternative, to agree to a rental or co-tenancy agreement.
Irene alleged further that the fair rental value of the property
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was $6,000 per month or approximately $200 per day. Nyka
generally denied the allegations of the complaint and alleged
Irene abused her powers as successor trustee.
In January 2020, shortly before the final status conference,
the parties settled their dispute following a 12-hour mediation.
The parties’ agreement was memorialized in a “deal points”
writing endorsed by the parties at the conclusion of the mediation
(the settlement agreement). Although the parties intended to
prepare a more formal settlement document later, they agreed
the initialed and signed deal points would be “binding and
enforceable” pursuant to section 664.6 of the Code of Civil
Procedure.1
The settlement agreement provided Nyka could continue to
reside at the property until April 2, 2020, when the property
would be listed for sale. In the event Nyka continued to reside at
the property beyond April 2, 2020, the parties also agreed that “a
penalty of $500 per day shall be assessed against her, which shall
be paid to [Irene] from [Nyka’s] share of the [property] sales
proceeds.” The settlement agreement further provided that Irene
would pay $10,000 to Nyka from a reserve being held in trust for
1
In pertinent part, that statute provides: “If parties to
pending litigation stipulate, in a writing signed by the parties
outside of the presence of the court or orally before the court, for
settlement of the case, or part thereof, the court, upon motion,
may enter judgment pursuant to the terms of the settlement. If
requested by the parties, the court may retain jurisdiction over
the parties to enforce the settlement until performance in full of
the terms of the settlement.” (Code Civ. Proc., § 664.6, subd. (a).)
Undesignated statutory references that follow are to the
Code of Civil Procedure.
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her and that “time was of the essence” with regard to that
payment. (Irene gave Nyka a check for that amount at the
conclusion of the mediation.)
After the mediation and execution of the settlement
agreement, Nyka served Irene with a “Notice of Settlement of
Entire Case.” The parties thereafter advised the trial court of the
settlement and the court vacated the final status conference
(which had been set to occur that day) and scheduled an order to
show cause hearing regarding dismissal (the OSC hearing)
instead.
B. The Trial Court Enters an Interlocutory Judgment
Incorporating the Settlement Agreement’s Overstay
Penalty Provision and Nyka Does Not Seek Appellate
Review
In the weeks following the mediation, Nyka refused to sign
a more formal settlement document that her attorney prepared
and that Irene had signed. Nyka fired her attorney, refused to
agree on a real estate broker to handle the property’s sale,
rejected out-of-hand unsolicited purchase offers, and refused to
vacate the property. Ultimately, Nyka informed Irene’s attorney
that the property was “not for sale.”
In advance of the OSC hearing, Irene moved to enforce the
settlement agreement. Irene argued the parties’ settlement
agreement was enforceable pursuant to section 664.6 and asked
the court to enter an interlocutory judgment incorporating the
terms of the settlement and appointing a receiver to sell the
property and distribute the proceeds. In a separate filing, Irene
also opposed any dismissal of the case in light of Nyka’s refusal to
comply with the parties’ settlement agreement. In her filings,
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Irene made repeated reference to the settlement agreement’s
$500 per day penalty provision if Nyka were to overstay past
April 2, 2020.
Nyka, representing herself, responded by filing a “Request
to Uphold Dismissal and Vacate the Settlement Agreement.” She
argued Gonzalo never intended for Irene to inherit any part of
the property and was made a trust beneficiary only to protect
Nyka’s interest in the property. As for the settlement agreement,
Nyka argued she signed it because she had been misled by her
former attorney, by Irene, and by Irene’s attorney. Nyka further
revealed that when she signed the settlement agreement at the
mediation she had “no intention” of complying with it and signed
“only to get the $10,000 advance” and retain different counsel
because her attorney at the time was “urging [her] toward
failure.” Nyka’s filing seeking vacatur of the settlement
agreement did not address the reasonableness or enforceability of
the settlement agreement’s penalty provision.
The trial court heard argument and granted Irene’s motion
to enforce the settlement agreement. The court also found Nyka
had not provided any “competent facts or applicable authority to
vacate the settlement agreement and/or substantively oppose”
the motion to enforce.
Three weeks later, in February 2021, the trial court
entered an “Interlocutory Judgment of Partition and
Appointment of Court Referee.” Among other things, the
interlocutory judgment provided as follows: “Beginning April 3,
2020, [Nyka] will pay to [Irene] a penalty of $500 per day of
residence until she vacates the property, to be paid from [Nyka’s]
share of the sale proceeds.” Although the Code of Civil Procedure
makes such an interlocutory judgment in a partition action
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appealable (§ 904.1, subd. (a)(9)), Nyka did not appeal from the
interlocutory judgment, which became final on August 16, 2021.
C. The Trial Court Enters a Final Judgment
Distributing the Balance of the Proceeds from the Sale
of the Property
After the property was sold, the trial court approved
disbursements from the sale proceeds to the partition referee
($12,088.86), Irene ($808,084.84), and Nyka ($668,251.72). With
those disbursements made, a balance of $244,229.41 was left and
the court still had to consider the question of the $172,000
penalty called for by the interlocutory judgment.2
Irene moved for an order disbursing the $172,000 to her.
She argued Nyka could not contest payment of the penalty
because the trial court made it part of the interlocutory judgment
and Nyka did not challenge the interlocutory judgment on
appeal. Irene additionally argued that even if the penalty
provision of the interlocutory judgment were not considered
binding, the $500 per day penalty provision should still be
enforced because it was not an improper liquidated damages
clause. In a supporting declaration, Irene asserted the penalty
provision was included in the settlement agreement as “an
incentive” for Nyka to move out as soon as possible so that the
2
According to the partition referee’s report, Nyka vacated
the property on March 12, 2021, 344 days after the move-out date
provided in the settlement agreement (344 days x $500/day =
$172,000). The remaining $72,229.41 in undisbursed funds from
the sale proceeds represented unpaid legal fees claimed by Nyka’s
former attorney.
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property could be sold and the proceeds distributed to her and
Nyka.
Nyka, now represented by a different attorney, opposed the
motion to disburse the $172,000 to Irene.3 Nyka argued the
penalty provision was unenforceable because the amount of the
penalty had “no reasonable relationship to the actual damages
Irene incurred as a result of [Nyka] continuing to stay [at] the
property.” She also argued Irene had not shown any damages as
a result of Nyka’s extended occupation of the property (noting
that the value of the property increased during Nyka’s extended
stay). Nyka additionally emphasized her stay beyond the April 2,
2020, deadline was attributable to the COVID-19 “lockdown,”
which prevented her from finding and moving to a new
residence.4
The trial court issued an order granting the motion and
directing disbursement of $172,000 to Irene.5 The court found
Nyka could not challenge payment of the penalty because the
interlocutory judgment authorized the agreed-upon penalty and
there was “no showing that any party filed a timely appeal or
challenge to th[at] judgment.”
3
Nyka’s opposition was not supported by declarations or
other evidence.
4
Nyka’s April 12, 2023, motion for judicial notice is granted.
5
Because Nyka did not oppose disbursement of the unpaid
legal fees and because the amount owed was the subject of a
judgment in a separate case, the trial court also ordered the
remaining balance of $72,229.41 disbursed to Nyka’s former
attorney.
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The trial court subsequently entered a final judgment of
partition, from which Nyka now appeals.
II. DISCUSSION
Nyka’s appeal fails for the reason already articulated by
the trial court. The time to challenge the penalty provision was
before the interlocutory judgment became final. Once the
deadline passed for Nyka to appeal the interlocutory judgment,
its provisions became conclusive as to all issues it resolved,
including the issue of penalties for Nyka if she overstayed her
agreed-upon residency at the property.
Partition actions are governed by section 872.010 and the
sections that follow. Pursuant to section 872.720, subdivision (a),
“[i]f the court finds that the plaintiff is entitled to partition, it
shall make an interlocutory judgment that determines the
interests of the parties in the property and orders the partition of
the property and, unless it is to be later determined, the manner
of partition.” As already mentioned, an interlocutory judgment in
a partition action is appealable. (§ 904.1, subd. (a)(9); Richmond
v. Dofflemyer (1980) 105 Cal.App.3d 745, 753 [“In an action for
partition, an interlocutory judgment determining the rights and
interests of parties and directing that partition be made has been
made expressly appealable by Code of Civil Procedure section
904.1”].)
Our Supreme Court has long held that an interlocutory
judgment in a partition action becomes final and conclusive once
the time to appeal it has expired. (See, e.g., Riley v. Turpin
(1960) 53 Cal.2d 598, 604 [in a partition action where the
interlocutory judgment became final without appeal, the
interlocutory judgment was “not reviewable as to any alleged
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errors, on appeal from any subsequent judgment or order”];
Oliver v. Sperry (1934) 220 Cal. 327, 329-330 [“the question of the
interests of the respective parties [in the property] were finally
adjudicated by the interlocutory decree. [Citation.] Only such
matters may be reviewed on appeal from the final judgment as
have intervened subsequent to the rendition of the interlocutory
decree”]; Pista v. Resetar (1928) 205 Cal. 197, 199 [“[a]n
interlocutory decree in an action for the partition of real property,
although preliminary to the final judgment of confirmation, is
conclusive as to the matters determined therein”]; Holt v. Holt
(1901) 131 Cal. 610, 611-612 [an “interlocutory decree of partition
. . . is a final judgment, certainly, as to all questions determined
in it”].) Court of Appeal case law is, naturally, in accord. (See,
e.g., Raisin Investment Co. v. Magginetti (1952) 109 Cal.App.2d
163, 164 [“Assuming then the court erred as indicated, we come
to the question whether the court had the power to amend the
interlocutory judgment after it became final. We think it clear
that the court was possessed of no such power. Time and again it
has so been ruled in this state”].)
Because the basis for the trial court’s disbursement of
$172,000 to Irene in the final judgment was the penalty provision
in the interlocutory judgment, and because that provision went
unchallenged and became final, Nyka’s belated arguments
against the reasonableness and enforceability of the provision
lack merit. (Nevarov v. Nevarov (1955) 133 Cal.App.2d 457, 458,
461 [rejecting, in an appeal from a final judgment in a partition
action, the argument that a provision in an interlocutory
judgment ordering them to vacate the property or pay a pre-set
fixed amount in rent was “unauthorized and void” because
appellants failed to raise that argument in their prior appeal
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from the interlocutory judgment].) City of Gardena v. Rikuo
(2011) 192 Cal.App.4th 595, the sole case Nyka’s opening brief
cites in an effort to argue the contrary, is inapposite. That case
involved an eminent domain action, not a partition action (id. at
598), and it does not discuss, distinguish, or urge a departure
from the myriad cases establishing the finality of uncontested
interlocutory judgments in partition actions.
Finally, Irene asks us to sanction Nyka for pursuing a
frivolous appeal. We deny the request. (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650-651 [holding a meritless
appeal is not by definition frivolous and the power to impose
sanctions for prosecuting frivolous appeals “should be used most
sparingly to deter only the most egregious conduct”]; accord,
Delaney v. Dahl (2002) 99 Cal.App.4th 647, 660-661 [“Meritless is
not the same as frivolous”].)
DISPOSITION
The judgment is affirmed. Respondent Irene Cadena shall
recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J. KIM, J.
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