Filed 9/27/19 Calliger v. Calliger CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

MARY ELLEN CALLIGER,

Plaintiff and Respondent,

v.

RICHARD JACK CALLIGER,

Defendant and Appellant.

A155998

(Alameda County

Super. Ct. No. HF13681706)

Richard Calliger, appearing in propria persona, appeals orders issued by the family court authorizing his ex-wife, Mary Ellen Calliger (hereafter Elle), to enforce a settlement agreement under which the parties had agreed that Elle would purchase Richard’s interest in their community property home for a specified amount. Richard contends the trial court abused its discretion by enforcing the agreement because the time for completion of the purchase under the agreement had expired and because the trial court’s requirement that Richard sign all documents necessary to effectuate the transfer of his interest in the property to Elle conflicted with the terms of the agreement. Elle has not appeared on appeal. We find no error and affirm the judgment.

Background

In May 2013, Elle filed a petition for dissolution of her marriage to Richard. After pending for years, the matter was set for trial on June 14, 2018. On the eve of trial, the parties entered into a “memorandum of understanding” to settle on the following terms: “a. Elle Calliger to pay to [Richard] the sum of $150,000; [¶] b. Elle Calliger to pay an additional $50,000 into an educational fund for the benefit of Noah Calliger. . . . [¶] c. Upon payment of the above sums and removal of Richard Calliger’s name from the mortgage, a Judgment of Dissolution of Marriage will be entered with the following terms. [¶] (1) Mutual waiver of spousal support. [¶] (2) Each party to waive any and all claims against the other. [¶] (3) Each party to be awarded all personal property, bank accounts, retirement accounts, vehicle(s) in his or her possession. [¶] . . . [¶] (6) The real property located [in] Fremont, California shall be awarded to Elle Calliger. Elle Calliger shall have Richard Calliger’s name removed from the mortgage on the property. Richard Calliger shall execute an Interspousal Transfer Deed transferring his interest to Elle Calliger.” The parties also agreed to continue the trial date and that “[t]his agreement becomes null and void after 90 days from the signing dates, unless extended, for good cause in writing for 30 days.”

In October 2018, Elle filed a petition seeking enforcement of the agreement pursuant to Code of Civil Procedure section 664.6. At the hearing, Elle’s attorney reported that, prior to the expiration of the 90-day period on September 14, 2018, Elle had obtained a loan to purchase Richard’s interest but could not close escrow until Richard signed certain documents, including a release of his interests in the home and Elle’s pension. Implicitly acknowledging his refusal to sign the documents before September 14, Richard responded that he was not required under the terms of the agreement to sign any documents until he had been paid. Elle’s counsel agreed that the agreement did not expressly require Richard to sign any documents, but argued that the covenant of good faith and fair dealing required Richard to “sign whatever documents [are] necessary to implement the agreement.”

Following a hearing on October 22, the court gave Elle 60 days to complete the purchase of Richard’s interest and ordered Richard to “sign off on his interest in [Elle’s] pension plan, and to cooperate in the signing of the quit claim deed or interspousal transfer deed both as conditions precedent to him receiving his $200,000.” The court found that the agreement required the parties to “participate in good faith and with cooperativeness in complying with the terms of the agreement. When [Richard] refused to sign the paperwork that released [his] interest in [Elle’s] retirement account, he effectively stopped this memorandum of understanding from going forward and was not acting in good faith in terms of fulfilling the terms of the memorandum of understanding.”

The parties appeared in court again on December 11 on, among other things, Richard’s motion for modification of the October 22 order. With respect to modification, Richard argued again that the agreement can be modified only by written agreement and that “perhaps the court may have overstepped by offering that this agreement . . . is still in force.” The court denied defendant’s request to reconsider its prior ruling.

At the December hearing, Elle’s counsel also reported that Richard was refusing to comply with the court’s October order. The court extended the order for an additional 30 days for completion of the purchase, reiterated that Richard was required to sign the pension document as well as the interspousal transfer of the deed, and added that Richard was to “cooperate in the signing of any additional documents necessary to complete those two transactions.” The court again explained to Richard, “you can’t enter into an agreement and then not cooperate with the terms of the agreement and then when the sun sets and the day comes and because the agreement could not have been complied with because of a lack of cooperation on your part that suddenly the agreement doesn’t exist anymore.”

On December 13, defendant filed a notice of appeal from the December 11 order.

Discussion

1. Scope of the Appeal
2.
Richard’s notice purports to appeal only the December 11 order. His civil case information sheet characterizes the December order in part as a denial of a “motion for new trial” of the October order. Generally the denial of a motion for new trial or the denial of a motion for reconsideration are not appealable orders. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19 [“[A]n order denying a motion for new trial is not independently appealable and may be reviewed only on appeal from the underlying judgment.”]; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [“[A]n order denying a motion for reconsideration is not an appealable order.”].) Given, however, that the notice of appeal filed on December 13 would have been timely as to the October 22 order and was clearly intended to challenge both the October and December orders, we deem the notice of appeal filed as to both orders. (Walker, supra, 35 Cal.4th at p. 20 [“ ‘[T]he notice can be interpreted to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent. Thus, notices of appeal referring to an “order” have been interpreted to apply to a “judgment,” and those referring to a “judgment” to apply to an “order,” “so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ ”].)

Richard’s appendix on appeal includes an order filed in February 2019. Any issue regarding this order is beyond the scope of the present appeal.

3. Enforcement of the Agreement
4.
Richard contends the court erred by applying the covenant of good faith and fair dealing to extend the expiration date of the contract and to add terms to the contract requiring his signature on documents. We disagree.

“ ‘There is implied in every contract a covenant by each party not to do anything which will deprive the other parties thereto of the benefits of the contract. . . . This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.’ ” (1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 822, pp. 878-879.) Here, the purpose of the contract was to provide for the purchase of Richard’s interest in a community asset as a means of settling contested divorce proceedings. Richard’s refusal to sign the documents necessary to accomplish the purchase unreasonably frustrated Elle’s ability to perform under the contract. As the trial court noted, Elle’s ability to enforce the contract did not evaporate because Richard refused to cooperate within the 90-day period. (See Ninety Nine Investments, Ltd. v. Overseas Courier Service (Singapore) Private, Ltd. (2003) 113 Cal.App.4th 1118, 1130-1132, 1135-1136 [purchaser entitled to specific performance where vendor’s failure to timely comply with escrow obligations prevented loans from funding by closing date].)

Contrary to Richard’s argument, the court’s application of the implied covenant in this matter did not impose substantive terms and conditions beyond those to which the parties agreed. Richard asserts that he intended that Elle purchase his interest with cash, not a loan, and that the agreement was specifically drafted to ensure that he would have no obligation to release his interest in the property until he was fully paid. The agreement, however, does not require that Elle obtain the funds from any particular source. (See Ninety Nine Investments, Ltd. v. Overseas Courier Service (Singapore) Private, Ltd. supra, 113 Cal.App.4th at pp. 1130-1131 [fact that wealthy purchaser could have completed transaction without obtaining a loan did not excuse vendor’s failure to comply with escrow obligations when contract anticipated loan as option for payment].) While the agreement states a judgment of dissolution would be entered “[u]pon payment of the above sums and removal of Richard Calliger’s name from the mortgage,” the agreement also specifies that the proposed judgment include an order that “Elle Calliger shall have Richard Calliger’s name removed from the mortgage on the property” and “Richard Calliger shall execute an Interspousal Transfer Deed transferring his interest to Elle Calliger.” While some ambiguity arguably exists as to the order in which events were to occur, the unambiguous purpose of the agreement was to effectuate Elle’s purchase of Richard’s property interest and settle the ongoing divorce proceedings. Nothing in the agreement precludes use of a conventional escrow account to accomplish the simultaneous exchange of signed documents and delivery of proceeds. The court did not err in enforcing the agreement.

Disposition

The orders are affirmed.

POLLAK, P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.