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Electronically Filed Superior Court of CA County of Contra Costa 9/28/2022 12:27 PM By: K. Jinkerson, Deputy
CIV-130
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Barnumber, and address):
Kenneth R. Graham, SBN 216733 FOR COURT USE ONLY
Law Offices of Kenneth R. Graham
2950 Buskirk Ave. , Suite 300
Walnut Creek, CA 94597
TELEPHONE NO.: (415) 990-8381 FAX NO. (Optional):
E-MAIL ADDRESS (Optional): krg@elaws.com
ATTORNEY FOR (Name): Kenneth R. Graham and Law Offices of Kenneth R. Graham
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Contra Costa
STREET ADDRESS: 725 Court Street
MAILING ADDRESS:
CITY AND ZIP CODE: Martinez, CA 94553
BRANCH NAME: Wakefield Taylor Courthouse
PLAINTIFF/PETITIONER: Eugene D. Perez and Herenia B. Perez
DEFENDANT/RESPONDENT: Kenneth R. Graham and Law Offices of Kenneth R. Graham
NOTICE OF ENTRY OF JUDGMENT
OR ORDER CASE NUMBER:
(Check one): [KJ UNLIMITED CASE CJ LIMITED CASE MSC13-01679
(Amount demanded (Amount demanded was
exceeded $25,000) $25,000 or less)
TO ALL PARTIES :
1. A judgment, decree, or order was entered in this action on (date): September 16, 2022
2. A copy of the judgment, decree, or order is attached to this notice.
Date: September 28, 2022
Kenneth R. Graham
(1YPE OR PRINT NAME OF w ATTORNEY D PARTY WITHOUT ATTORNEY) .z (SIGNATURE)
Page 1 of2
Fo,m Approved tor Optional Use
NOTICE OF ENTRY OF JUDGMENT OR ORDER www.courts.ca.gov
Judicial Council ot California
CIV-130 [New January 1, 2010]
CIV-130
PLAINTIFF/PETITIONER: Eugene D. Perez and Herenia B. Perez CASE NUMBER:
13 1679
DEFENDANT/RESPONDENT: Kenneth R. Graham and Law Offices of Kenneth R. Graharr MSC -0
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served
the notice must complete this proof of service.)
1. I am at least 18 years old and not a party to this action. I am a resident of or employed in the county where the mailing took
place, and my residence or business address is (specify):
2950 Buskirk Ave., Walnut Creek, California 94597
2. I served a copy of the Notice of Entry of Judgment or Order by enclosing ii in a sealed envelope with postage
fully prepaid and (check one):
a. D deposited the sealed envelope with the United States Postal Service.
b. CK] placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
3. The Notice of Entry of Judgment or Order was mailed:
a. on (date): September 28, 2022
b. from (city and state): Walnut Creek, CA
4. The envelope was addressed and mailed as follows:
a. Name of person served: c. Name of person served:
Ronald W. Carter
Street address: P.O. Box 32287 Street address:
City: Oakland City:
State and zip code: CA 94604 State and zip code:
b. Name of person served: d. Name of person served:
Street address: Street address:
City: City:
State and zip code: State and zip code:
D Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
5. Number of pages attached _3_ __
I declare under penalty of perjury under the laws of the State of California that th f
Date: September 28, 2022
C{ aud\ ~V-W (TYPE OR PRINT NAME OF DECLARANT) â–º
Page 2 of 2
CIV-130 [New January 1. 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER
Superior Court of California, Contra Costa County
Department 07 K. Bieker
925-608-1000 Court Executive Officer
www.cc-courts.org
MINUTE ORDER
PEREZ VS GRAHAM MSCB-01679
Hearing Date: 09/16/2022
Proceedings: *Hearing on Motion in Re: VACATE RENEWAL OF JUDGMENT
Department 07 Clerk: Chandra Forfang
Judge: Barry Baskin Court Reporter: NR
Bailiff:
Interpreter:,
Journal Entries:
RONALD CARTER, ESQ. FOR PLTFS APPEARS BY ZOOM
DEFT: KENNETH GRAHAM, IN PRO PER, APPEARS BY ZOOM
VIRTUAL HEARING HELD
COUNSEL ARGUE THE FOLLOWING, POSTED, TENTATIVE RULING:
The motion by defendants Kenneth R. Graham and the Law Office of Kenneth R. Graham, to
vacate the renewal of judgment, is granted for the reasons discussed below.
Background
A default judgment was entered against defendants Kenneth R. Graham and the Law Office of
Kenneth R. Graham on June 2, 2014. Collection efforts ensued. On October 20, 2021, defendants filed
a motion to vacate the judgment. After an evidentiary hearing, the Court denied the motion to
vacate. Defendants then filed a motion for reconsideration which was set for hearing on April 1, 2022.
A judgment debtor exam took place on January 24, 2022 after which parties discussed settlement.
(Declaration of Ronald W. Carter in Support of Opposition, hereinafter "Carter Deel.," 1]2.) On March
4, 2022, defendants appealed the Court's denial of the motion to vacate. (Declaration of Kenneth
R. Graham in Support of Motion, hereinafter "Graham Deel.," Ex. 1.)
Parties negotiated a settlement agreement "with the intent to fully and finally resolve all
issues that were raised, and those that could have been raised in the Underlying Action and an
Appeal." (Graham Deel., Exs. 2-3; Carter Deel., Ex. E.) Pursuant to the agreement, defendants would
pay $12,000, file an "Abandonment of Appeal," and withdraw the motion for reconsideration.
Plaintiffs would accept $12,000, waive the right to collect upon and enforce the judgment, and file a
satisfaction of judgement within 10 days of an executed agreement.
Th e settlement agreement was fully executed on March 21, 2022. While defendants did not
pay the $12,000 within ten days or file an "Abandonment of Appeal," they did email a photograph of
the cashier's check to counsel by March 13th and represent to this Court t hat their motion for
reconsideration could be taken off calendar pursuant to the settlement. (Graham Deel., Ex. 6.) They
further allowed the appeal to be dismissed on April 14, 2022. (Id., Ex. 7.)
Plaintiffs similarly did not comply with certain deadlines. For example, they did not file a
satisfaction of judgment within 10 days of execution, but they still continued to insist on delivery of
the $12,000 check. On April 14, 2022, plaintiffs' counsel told defendant that he had breached the
Superior Court of California, Contra Costa County
Department 07 K. Bieker
925-608-1000 Court Executive Officer
www .cc-courts.erg
agreement and if no check was received by April 30, the settlement would be void. (See Carter Deel.,
Ex. J.) But counsel for plaintiffs nevertheless continued to engage in communications seeking delivery
of the check through May 17, 2022. (See id., Exs. K-N.)
Plaintiffs eventually received a $12,000 check from defendant on May 19, 2022. They kept
and cashed the check, as permitted in the settlement agreement, but instead of filing a full
satisfaction of judgment, plaintiffs filed an acknowledgment of partial satisfaction on May 26, 2022.
They then filed an application for renewal of judgment reflecting a credit for $12,000 and a remaining
balance of $534,631.
Motion and Opposition
Defendants timely filed this motion to vacate the renewal of judgment, arguing that plaintiffs
were in breach of the settlement agreement. Plaintiffs oppose the motion, taking the position that
defendants materially breached the settlement agreement because the $12,000 payment was not
timely. Defendants' reply challenges the timeliness argument based on waiver.
Discussion
Code of Civil Procedure, § 683.170, permits a judgment debtor to move for an order vacating
or modifying a renewal of the judgment. The court may vacate the renewal on any ground that would
be a defense to an action on the judgment. (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049,
1058, citing Code Civ. Proc.,§ 683.170, subd. (a).) That the judgment was satisfied by an accord and
satisfaction is such a defense. (In re Marriage of Thompson, supra, at 1058, citing Code Civ. Proc.,§
724.010, subd. (a) [a money judgment may be satisfied by the judgment creditor's acceptance of a
lesser sum in full satisfaction of the judgment].)
The elements of an accord and satisfaction are: (1) a bona fide dispute between the parties,
(2) the debtor sends a certain sum on the express condition that acceptance of it will constitute full
payment, and (3) the creditor so understands the transaction and accepts the sum. (In re Marriage of
Thompson, supra, at 1058.) The background facts, in conjunction with the settlement agreement
here, support all three of these elements in this case.
Further, Civil Code,§ 1526, subdivision (c) provides that "the acceptance of a check or draft
by a creditor constitutes an accord and satisfaction when the check or draft is issued pursuant to or in
conjunction with a release of a claim." This is true regardless of whether any particular annotation
appears on a check, such as "payment in full." Plaintiffs do not deny that the check was accepted.
They do not deny that the check was issued pursuant to the settlement agreement reached in March
2022, and they do not contend defendants failed to release the claims as agreed.
Plaintiffs ultimately accepted and cashed the check, knowing it was paid pursuant to the
settlement agreement. The acceptance constituted an accord and satisfaction pursuant to Civil Code,
§ 1526, subdivision (c), and constituted an intentional waiver of their known rights to rescind the
settlement agreement. While the Court acknowledges the difficulties in obtaining the funds, and
plaintiffs' reasonable lack of trust in defendants (Carter Deel., 1]21), these circumstances may suggest
plaintiffs would be more willing to waive deadlines in order to collect some minimal amount.
Plaintiffs' argument that the settlement agreement was repudiated because defendant failed to
timely comply is inconsistent with their retention of the benefits from defendants' performance.
The cases cited by plaintiffs did not involve settlement agreements or implicate the terms of
Superior Court of California, Contra Costa County
Department 07 K. Bieker
925-608-1000 Court Executive Officer
www.cc-courts. org
Civil Code,§ 1526, subdivision (c).
The case is reassigned to D-18, Judge Danielle Douglas, for all purposes, effective
immediately.
THE COURT HAVING CONSIDERED THE PLEADINGS AND ORAL ARGUMENT OF COUNSEL HEREBY
ADVISES COUNSEL THAT THE TR WILL BE RE-REVIEWED. IF COUNSEL DO NOT HEAR FROM THE COURT
VIA EMAIL BY NOON THE POSTED TR WILL BECOME THE ORDER OF THE COURT.
AFTER RE-REVIEW OF THE PLEADINGS, ARGUMENT AND THE TENTATIVE RULING THE COURT HEREBY
AFFIRMS THE ABOVE NOTE RULING AS POSTED.
FUTURE HEARING($):
Dated: 9/16/2022
C. Forfang, Deputy Clerk
Preview
Electronically Filed Superior Court of CA County of Contra Costa 9/28/2022 12:27 PM By: K. Jinkerson, Deputy CIV-130 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Barnumber, and address): Kenneth R. Graham, SBN 216733 FOR COURT USE ONLY Law Offices of Kenneth R. Graham 2950 Buskirk Ave. , Suite 300 Walnut Creek, CA 94597 TELEPHONE NO.: (415) 990-8381 FAX NO. (Optional): E-MAIL ADDRESS (Optional): krg@elaws.com ATTORNEY FOR (Name): Kenneth R. Graham and Law Offices of Kenneth R. Graham SUPERIOR COURT OF CALIFORNIA, COUNTY OF Contra Costa STREET ADDRESS: 725 Court Street MAILING ADDRESS: CITY AND ZIP CODE: Martinez, CA 94553 BRANCH NAME: Wakefield Taylor Courthouse PLAINTIFF/PETITIONER: Eugene D. Perez and Herenia B. Perez DEFENDANT/RESPONDENT: Kenneth R. Graham and Law Offices of Kenneth R. Graham NOTICE OF ENTRY OF JUDGMENT OR ORDER CASE NUMBER: (Check one): [KJ UNLIMITED CASE CJ LIMITED CASE MSC13-01679 (Amount demanded (Amount demanded was exceeded $25,000) $25,000 or less) TO ALL PARTIES : 1. A judgment, decree, or order was entered in this action on (date): September 16, 2022 2. A copy of the judgment, decree, or order is attached to this notice. Date: September 28, 2022 Kenneth R. Graham (1YPE OR PRINT NAME OF w ATTORNEY D PARTY WITHOUT ATTORNEY) .z (SIGNATURE) Page 1 of2 Fo,m Approved tor Optional Use NOTICE OF ENTRY OF JUDGMENT OR ORDER www.courts.ca.gov Judicial Council ot California CIV-130 [New January 1, 2010] CIV-130 PLAINTIFF/PETITIONER: Eugene D. Perez and Herenia B. Perez CASE NUMBER: 13 1679 DEFENDANT/RESPONDENT: Kenneth R. Graham and Law Offices of Kenneth R. Graharr MSC -0 PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF ENTRY OF JUDGMENT OR ORDER (NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served the notice must complete this proof of service.) 1. I am at least 18 years old and not a party to this action. I am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify): 2950 Buskirk Ave., Walnut Creek, California 94597 2. I served a copy of the Notice of Entry of Judgment or Order by enclosing ii in a sealed envelope with postage fully prepaid and (check one): a. D deposited the sealed envelope with the United States Postal Service. b. CK] placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 3. The Notice of Entry of Judgment or Order was mailed: a. on (date): September 28, 2022 b. from (city and state): Walnut Creek, CA 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Name of person served: Ronald W. Carter Street address: P.O. Box 32287 Street address: City: Oakland City: State and zip code: CA 94604 State and zip code: b. Name of person served: d. Name of person served: Street address: Street address: City: City: State and zip code: State and zip code: D Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached _3_ __ I declare under penalty of perjury under the laws of the State of California that th f Date: September 28, 2022 C{ aud\ ~V-W (TYPE OR PRINT NAME OF DECLARANT) ► Page 2 of 2 CIV-130 [New January 1. 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER Superior Court of California, Contra Costa County Department 07 K. Bieker 925-608-1000 Court Executive Officer www.cc-courts.org MINUTE ORDER PEREZ VS GRAHAM MSCB-01679 Hearing Date: 09/16/2022 Proceedings: *Hearing on Motion in Re: VACATE RENEWAL OF JUDGMENT Department 07 Clerk: Chandra Forfang Judge: Barry Baskin Court Reporter: NR Bailiff: Interpreter:, Journal Entries: RONALD CARTER, ESQ. FOR PLTFS APPEARS BY ZOOM DEFT: KENNETH GRAHAM, IN PRO PER, APPEARS BY ZOOM VIRTUAL HEARING HELD COUNSEL ARGUE THE FOLLOWING, POSTED, TENTATIVE RULING: The motion by defendants Kenneth R. Graham and the Law Office of Kenneth R. Graham, to vacate the renewal of judgment, is granted for the reasons discussed below. Background A default judgment was entered against defendants Kenneth R. Graham and the Law Office of Kenneth R. Graham on June 2, 2014. Collection efforts ensued. On October 20, 2021, defendants filed a motion to vacate the judgment. After an evidentiary hearing, the Court denied the motion to vacate. Defendants then filed a motion for reconsideration which was set for hearing on April 1, 2022. A judgment debtor exam took place on January 24, 2022 after which parties discussed settlement. (Declaration of Ronald W. Carter in Support of Opposition, hereinafter "Carter Deel.," 1]2.) On March 4, 2022, defendants appealed the Court's denial of the motion to vacate. (Declaration of Kenneth R. Graham in Support of Motion, hereinafter "Graham Deel.," Ex. 1.) Parties negotiated a settlement agreement "with the intent to fully and finally resolve all issues that were raised, and those that could have been raised in the Underlying Action and an Appeal." (Graham Deel., Exs. 2-3; Carter Deel., Ex. E.) Pursuant to the agreement, defendants would pay $12,000, file an "Abandonment of Appeal," and withdraw the motion for reconsideration. Plaintiffs would accept $12,000, waive the right to collect upon and enforce the judgment, and file a satisfaction of judgement within 10 days of an executed agreement. Th e settlement agreement was fully executed on March 21, 2022. While defendants did not pay the $12,000 within ten days or file an "Abandonment of Appeal," they did email a photograph of the cashier's check to counsel by March 13th and represent to this Court t hat their motion for reconsideration could be taken off calendar pursuant to the settlement. (Graham Deel., Ex. 6.) They further allowed the appeal to be dismissed on April 14, 2022. (Id., Ex. 7.) Plaintiffs similarly did not comply with certain deadlines. For example, they did not file a satisfaction of judgment within 10 days of execution, but they still continued to insist on delivery of the $12,000 check. On April 14, 2022, plaintiffs' counsel told defendant that he had breached the Superior Court of California, Contra Costa County Department 07 K. Bieker 925-608-1000 Court Executive Officer www .cc-courts.erg agreement and if no check was received by April 30, the settlement would be void. (See Carter Deel., Ex. J.) But counsel for plaintiffs nevertheless continued to engage in communications seeking delivery of the check through May 17, 2022. (See id., Exs. K-N.) Plaintiffs eventually received a $12,000 check from defendant on May 19, 2022. They kept and cashed the check, as permitted in the settlement agreement, but instead of filing a full satisfaction of judgment, plaintiffs filed an acknowledgment of partial satisfaction on May 26, 2022. They then filed an application for renewal of judgment reflecting a credit for $12,000 and a remaining balance of $534,631. Motion and Opposition Defendants timely filed this motion to vacate the renewal of judgment, arguing that plaintiffs were in breach of the settlement agreement. Plaintiffs oppose the motion, taking the position that defendants materially breached the settlement agreement because the $12,000 payment was not timely. Defendants' reply challenges the timeliness argument based on waiver. Discussion Code of Civil Procedure, § 683.170, permits a judgment debtor to move for an order vacating or modifying a renewal of the judgment. The court may vacate the renewal on any ground that would be a defense to an action on the judgment. (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058, citing Code Civ. Proc.,§ 683.170, subd. (a).) That the judgment was satisfied by an accord and satisfaction is such a defense. (In re Marriage of Thompson, supra, at 1058, citing Code Civ. Proc.,§ 724.010, subd. (a) [a money judgment may be satisfied by the judgment creditor's acceptance of a lesser sum in full satisfaction of the judgment].) The elements of an accord and satisfaction are: (1) a bona fide dispute between the parties, (2) the debtor sends a certain sum on the express condition that acceptance of it will constitute full payment, and (3) the creditor so understands the transaction and accepts the sum. (In re Marriage of Thompson, supra, at 1058.) The background facts, in conjunction with the settlement agreement here, support all three of these elements in this case. Further, Civil Code,§ 1526, subdivision (c) provides that "the acceptance of a check or draft by a creditor constitutes an accord and satisfaction when the check or draft is issued pursuant to or in conjunction with a release of a claim." This is true regardless of whether any particular annotation appears on a check, such as "payment in full." Plaintiffs do not deny that the check was accepted. They do not deny that the check was issued pursuant to the settlement agreement reached in March 2022, and they do not contend defendants failed to release the claims as agreed. Plaintiffs ultimately accepted and cashed the check, knowing it was paid pursuant to the settlement agreement. The acceptance constituted an accord and satisfaction pursuant to Civil Code, § 1526, subdivision (c), and constituted an intentional waiver of their known rights to rescind the settlement agreement. While the Court acknowledges the difficulties in obtaining the funds, and plaintiffs' reasonable lack of trust in defendants (Carter Deel., 1]21), these circumstances may suggest plaintiffs would be more willing to waive deadlines in order to collect some minimal amount. Plaintiffs' argument that the settlement agreement was repudiated because defendant failed to timely comply is inconsistent with their retention of the benefits from defendants' performance. The cases cited by plaintiffs did not involve settlement agreements or implicate the terms of Superior Court of California, Contra Costa County Department 07 K. Bieker 925-608-1000 Court Executive Officer www.cc-courts. org Civil Code,§ 1526, subdivision (c). The case is reassigned to D-18, Judge Danielle Douglas, for all purposes, effective immediately. THE COURT HAVING CONSIDERED THE PLEADINGS AND ORAL ARGUMENT OF COUNSEL HEREBY ADVISES COUNSEL THAT THE TR WILL BE RE-REVIEWED. IF COUNSEL DO NOT HEAR FROM THE COURT VIA EMAIL BY NOON THE POSTED TR WILL BECOME THE ORDER OF THE COURT. AFTER RE-REVIEW OF THE PLEADINGS, ARGUMENT AND THE TENTATIVE RULING THE COURT HEREBY AFFIRMS THE ABOVE NOTE RULING AS POSTED. FUTURE HEARING($): Dated: 9/16/2022 C. Forfang, Deputy Clerk