Filed 5/23/23 Cenzone Tech v. Wu CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CENZONE TECH., INC.,

Plaintiff, Cross-defendant and 

Appellant;

JUNG FU WU,

Cross-defendant and Appellant,

v.

MARK KANE-BERMAN et al.,

Defendants, Cross-complainants 

and Respondents.

 D079891

 (Super. Ct. No. 37-2019-

00029703-CU-BC-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Cynthia A. Freeland, Judge. Affirmed.

Niddrie Addams Fuller Singh and Rupa G. Singh for Plaintiff, Crossdefendant, and Appellant Cenzone Tech., Inc., and Cross-defendant and 

Appellant Jung Fu Wu.

Duckor Metzger & Wynne, Tony R. Skogen, Jr., and Cathleen G. Fitch 

for Defendants, Cross-complainants and Respondents.
2

I

INTRODUCTION

Plaintiff and cross-defendant Cenzone Tech, Inc. (Cenzone) appeals an 

order granting a motion for entry of judgment filed by defendant and crosscomplainant Mark Kane-Berman and cross-complainant Microbasics, LLC 

(Microbasics) under Code of Civil Procedure section 664.6. The trial court 

entered judgment after finding that the parties executed a valid settlement 

agreement resolving all causes of action between them, known and unknown. 

According to Cenzone, the settlement agreement was unenforceable because 

Cenzone never intended to settle causes of action that were known to the 

parties, but unasserted in their pleadings. Cenzone also argues the court 

erred by denying its motion for leave to amend its complaint to assert several 

new causes of action against Kane-Berman and Microbasics. 

We conclude the trial court properly granted the motion for entry of 

judgment pursuant to the parties’ settlement agreement, which clearly and 

unambiguously released all claims between the parties, known and unknown. 

Further, we conclude the court did not prejudicially err in denying Cenzone’s 

motion for leave to amend its complaint. Therefore, we affirm the order 

denying Cenzone’s motion for leave to amend its complaint and the order 

entering judgment pursuant to the parties’ settlement agreement.

II

BACKGROUND

1. The Pleadings

Dr. Jung Fu Wu is the president and founder of Cenzone, a 

manufacturer of livestock feed supplements. Mark Kane-Berman owns and 

operates Microbasics, a company in the same line of business. 
3

On June 7, 2019, Cenzone filed a complaint asserting four causes of 

action against Kane-Berman and Kane-Berman dba Microbasics. In its first 

cause of action, Cenzone alleged it loaned nearly $488,000 to Kane-Berman to 

buy real property in Jerome, Idaho. Cenzone claimed Kane-Berman breached 

a promissory note memorializing the loan by failing to repay about $255,000 

in principal and not making required interest payments. In its second and 

third causes of action, Cenzone averred that Kane-Berman agreed to buy 

livestock feed products from Cenzone, but failed to pay for the products in 

full. The fourth cause of action asserted that Cenzone provided livestock feed 

products to Kane-Berman on an open book account and he owed a balance on 

the account. Cenzone prayed for damages of about $446,000. Kane-Berman 

answered by generally denying Cenzone’s allegations. 

On February 14, 2020, Kane-Berman and Microbasics filed a crosscomplaint against Cenzone, Wu, and other cross-defendants. They asserted 

crossclaims for defamation, misappropriation of trade secrets, and goods and 

services rendered. Additionally, they requested declarations that they: 

(1) never agreed to the promissory note memorializing the loan for the 

acquisition of the Idaho property; (2) owed Cenzone no money under the 

promissory note; and (3) had sole ownership of the Idaho property. 

2. Cenzone’s Motion for Leave to Amend its Complaint

On October 21, 2020, Cenzone filed a motion for leave to amend its

complaint by adding seven new causes of action against Kane-Berman and 

Microbasics. Cenzone requested leave to assert declaratory relief and 

fraudulent concealment causes of action based on allegations that KaneBerman and Wu agreed to buy the Idaho property as equal partners, but 

Kane-Berman forged Wu’s signature on documentation relating to the sale

and, through this deceit, acquired sole title to the property. Cenzone also 
4

sought to pursue a cause of action for misappropriation of trade secrets. 

Finally, Cenzone sought leave to assert civil theft, unfair business practices, 

trade libel, and intentional interference with prospective economic advantage 

causes of action based on allegations that Kane-Berman disparaged Cenzone 

and its feed supplements to customers. The proposed amended complaint 

prayed for damages exceeding $10,000,000. 

On January 7, 2021, Kane-Berman opposed Cenzone’s motion for leave 

to amend its complaint. He argued Cenzone should not be allowed to assert

the declaratory relief and fraudulent concealment causes of action because 

the allegations underlying those causes of action—i.e., the allegations that 

Kane-Berman forged Wu’s signature to take sole title to the Idaho property—

were fatally inconsistent with the original complaint’s allegations that Wu 

loaned him money to buy the property. 

On January 8, 2021, Cenzone filed a so-called amendment to its motion 

for leave to amend its complaint. Through the amendment, Cenzone sought 

to add two additional causes of action (for a total of nine new ones): (1) a 

cause of action that Kane-Berman conspired to misappropriate Cenzone’s 

trade secrets; and (2) a cause of action for violations of 15 U.S.C. § 1125,

based on Kane-Berman’s allegedly false statements to Cenzone’s customers. 

On February 4, 2021, Kane-Berman opposed Cenzone’s amended 

motion for leave to amend its complaint. He reiterated his contentions from 

the previously filed opposition and further argued that the proposed 

amendment would severely prejudice him. He argued he would suffer 

prejudice because: (1) the new causes of action would substantially enlarge 

the scope of the case; (2) the amendment would delay trial, set for July 16, 

2021, because it would unsettle the pleadings and necessitate new discovery; 

and (3) Cenzone unduly delayed seeking amendment. On the issue of undue 
5

delay, Kane-Berman asserted Cenzone inexplicably waited fourteen months 

to pursue its proposed amendment, even though it was aware of the 

allegations underlying its new causes of action at the outset of the case. 

On February 10, 2021, Cenzone filed a reply in support of its amended 

motion for leave to amend its complaint. It asserted there was no 

inconsistency between its claim that it loaned money to Kane-Berman to 

finance the acquisition of the Idaho property, on the one hand, and its claim

that Wu and Kane-Berman agreed to take title to the property as equal 

partners, on the other hand. Further, it argued its failure to seek 

amendment earlier was “not due to a lack of diligence by Dr. Wu or Cenzone,” 

but rather “due to concealment and malfeasance” by Kane-Berman. 

On February 19, 2021, the court denied Cenzone’s amended motion for 

leave to amend its complaint. The court found Cenzone was “partially 

dilatory in seeking leave to amend” because it “ha[d] at all times known, or 

should have known, of potential title issues” relating to the Idaho property. 

It also found Kane-Berman “recorded a special warranty deed” in 2013 

reflecting that he took sole title to the property, and Cenzone, at a minimum, 

should have “discovered the title issue when it retained counsel in June 

2019.” 

Further, the court found amendment was unwarranted because it 

would “undoubtedly” delay trial and severely prejudice Kane-Berman. The 

court reasoned the new causes of action would “entirely change the case’s 

complexion,” since they were “not even remotely related to the [initial] 

[c]omplaint’s allegations.” It found amendment would “substantially increase 

[Kane-Berman’s] preparation costs and discovery burden[s],” and require 

“discovery from numerous third-party customers” and others. Additionally, 

the court predicted that amendment would result in various “procedural and 
6

dispositive motions” targeting the new causes of action. For all these 

reasons, the court denied Cenzone’s motion to file an amended complaint.

3. The Mediation and Settlement Agreement

At the joint request of the parties, the court continued trial from 

July 16, 2021, until September 17, 2021, to give the parties an opportunity to 

mediate their dispute. 

On June 23, 2021, the parties and their respective counsel participated 

in a one-day mediation with a mutually selected mediator. At the end of the 

mediation, the parties reached a settlement, which they memorialized in a 

one-page agreement entitled, “Memorandum of Understanding” (MOU). Wu 

executed the MOU on behalf of himself and Cenzone, while Kane-Berman 

executed the MOU on behalf of himself and Microbasics. 

The MOU states the parties “agreed to settle all claims between them, 

known and unknown ....” Elsewhere, it provides that, “[e]ach party waives all 

claims, known and unknown, against all other Parties to the lawsuit.” The 

MOU obligates the parties “to draft a long form settlement agreement based 

on” the MOU. However, it states that, “[i]n the event the parties are unable 

to agree on the final terms in a settlement agreement, [the] MOU will be 

enforceable and admissible in Court pursuant to Code of Civil Procedure 

section 664.6.” 

4. The Purported Cancellation of the Settlement Agreement

On August 10, 2021, Cenzone’s counsel, Stephen C. Hinze, sent a letter 

to Kane-Berman’s counsel, Tony R. Skogen, which purportedly “cancell[ed]

the settlement,” on grounds that the parties never had a “meeting of the 

minds.” Hinze stated that Cenzone never intended to release claims it knew 

of, but had not asserted in its complaint—i.e., it did not intend to release the

claims that were the subject of its motion for leave to amend the complaint. 
7

Although the MOU released all claims between the parties, known and 

unknown, Hinze stated the release was a “mistake.” According to Hinze, Wu 

had scheduled an appointment for after the parties’ mediation, which he told

Kane-Berman and Skogen about at the start of the mediation. Hinze stated 

Wu was “late to his appointment” by the time defense counsel’s office 

prepared the MOU and, as a result, Wu only “quickly reviewed the [MOU] 

and signed it ....” He stated the MOU “contained a mistake that Dr. Wu and 

[Hinze] did not catch in the brief time [they] had to review it.” He reiterated

that Wu intended only to release unknown claims and known claims asserted

in the complaint—not known, unasserted claims. 

On August 18, 2021, Skogen sent a letter to Hinze rejecting the 

settlement cancellation. He stated, “there was clearly a meeting of the 

minds,” as evidenced by the release of “all claims known and unknown” in the 

one-page MOU. He stated Wu “should not have scheduled another 

appointment inside the time [they] had agreed to mediate” and, “[i]f he felt 

rushed, that [was] on him.” Further, he stated, “if [Wu] chose not to read the 

agreement, that [was] on him” as well. 

5. The Motion for Entry of Judgment

On September 1, 2021, Kane-Berman and Microbasics filed an ex parte

motion for entry of judgment under Code of Civil Procedure section 664.6. In 

their motion, they argued the MOU was an enforceable settlement agreement 

because it unambiguously released all claims between the parties, known and 

unknown. They argued Wu’s alleged failure to read or understand the onepage MOU was immaterial because the release of claims in the MOU was 

“clear,” Wu was solely responsible for any time constraints he may have 

experienced, and Wu was represented in the mediation by Hinze, who also 

had the opportunity to read and review the MOU. Together with the motion, 
8

Kane-Berman and Microbasics filed a declaration from their counsel, Skogen. 

The MOU, the settlement cancellation letter, and the letter rejecting the 

settlement cancellation were attached as exhibits to Skogen’s declaration. 

On September 2, 2021, the day of the scheduled hearing on the ex parte 

motion, Cenzone filed a declaration from Hinze purporting to summarize the 

mediation. He averred that, before the mediation began, “Wu advised all 

parties that he had to be at a meeting by 1:30 that afternoon.” According to 

Hinze, the meeting “was with an attorney concerning the claims” Cenzone

had tried to amend into its complaint. Hinze further averred that, during the 

mediation, Wu offered to release Cenzone’s known claims in return for 

$95,000, payable in 60 days, but “with the express condition that the only 

[known] claims to be dismissed were those asserted in the complaint.” He 

alleged Kane-Berman made an oral counteroffer that modified only the 

timing of the settlement payments, not the release of claims. He stated Wu 

was running late for his meeting by the time Wu accepted Kane-Berman’s 

counteroffer and defense counsel’s office prepared the MOU. He averred,

“Review of the memorandum of settlement was done in less than a minute 

primarily to check that the payments agreed to were accurate.” He asserted

the MOU was “entered by mistake or inadvertence engendered by the stress 

and agitation” caused by the timing of Wu’s scheduled meeting. 

The court declined to decide the motion on an ex parte basis and “set[]

[the] matter for a noticed motion.” Thereafter, Kane-Berman and 

Microbasics relied on their previously filed ex parte motion for entry of 

judgment as the moving papers for their noticed motion.

On September 17, 2021, Cenzone filed its opposition to the now-noticed 

motion for entry of judgment. Cenzone repeated its claim that the MOU was 

invalid because there was no meeting of the minds. Additionally, it argued 
9

the MOU was the result of an attorney mistake and, therefore, it was 

unenforceable under Code of Civil Procedure section 473, subdivision (b). 

In its opposition, Cenzone again purported to summarize the 

mediation, claiming Wu offered to release only known claims that were 

asserted in the complaint, Kane-Berman made a counteroffer changing only 

the timing of the settlement payments, Wu accepted the counteroffer, and Wu 

signed the MOU under time pressure. Together with its opposition, Cenzone 

filed declarations from Wu and Hinze averring that, “[b]efore the mediation 

commenced ... Wu advised all parties that he had to be at a meeting” that 

afternoon. The declarations also purported to summarize various statements 

and communications made by the mediation participants during the 

mediation. 

On September 24, 2021, Kane-Berman and Microbasics filed a reply 

and evidentiary objections to the Wu and Hinze declarations. Of relevance 

here, they argued the portions of the declarations purporting to summarize 

the mediation were inadmissible under Evidence Code section 1119. That 

statute renders inadmissible any “evidence of anything said or any admission 

made for the purpose of, in the course of, or pursuant to, a mediation or a 

mediation consultation,” and provides that “[a]ll communications, 

negotiations, or settlement discussions by and between participants in the 

course of a mediation or a mediation consultation shall remain confidential.” 

(Evid. Code, § 1119, subds. (a), (c).)

On October 1, 2021, the court sustained the evidentiary objections to 

the Wu and Hinze declarations and granted the motion for entry of judgment. 

The court found the MOU was a “valid and enforceable settlement agreement 

between the parties, and that judgment should be entered thereon under 

CCP § 664.6(a).” It determined the language of the MOU, including the 
10

release of claims, was “clear,” “explicit,” and “sufficiently certain.” And it

found the MOU was enforceable, notwithstanding the “attorney fault” 

provision of Code of Civil Procedure section 473, subdivision (b), because that 

provision “applies only to defaults, default judgments, or dismissals entered 

as a result of an attorney’s mistake, inadvertence, surprise, or neglect.” 

Cenzone appeals.1

III

DISCUSSION

1. The Trial Court Properly Granted the Motion for Entry of Judgment

Cenzone challenges the entry of judgment on grounds that the parties 

did not mutually consent to the release of claims in the MOU. In particular, 

Cenzone asserts its consent was lacking, and the trial court should have 

refused entry of judgment, because Wu (Cenzone’s agent) and Hinze 

(Cenzone’s legal counsel) labored under a unilateral mistake concerning the 

scope of the MOU’s release of claims. Cenzone’s arguments are unavailing.

A. Legal Principles

“ ‘[Code of Civil Procedure] [s]ection 664.6 permits a court to enter 

judgment pursuant to the terms of a settlement if the parties stipulate orally 

before the court or in writing to settle all or part of a case. [Citation.]’ 

[Citation.] Section 664.6 provides in pertinent part: ‘If parties to pending 

litigation stipulate ... orally before the court, for settlement of the case, or 

part thereof, the court, upon motion, may enter judgment pursuant to the 

1 We construe the order granting the motion for entry of judgment as a 

final appealable judgment under Code of Civil Procedure section 904.1, 

subdivision (a), because the trial court never entered a formal judgment after 

granting the motion, and the order finally adjudicated all of the causes of 

action at issue in the litigation. (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 

1250–1252; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183.)
11

terms of the settlement.’ ” (Leeman v. Adams Extract & Spice, LLC (2015) 

236 Cal.App.4th 1367, 1373–1374, italics omitted (Leeman).)

“A settlement agreement is interpreted according to the same 

principles as any other written agreement. [Citation.] It must be interpreted 

to give effect to the mutual intent of the parties as it existed at the time, 

insofar as that intent can be ascertained and is lawful. [Citations.] If the 

language of the agreement is clear and explicit and does not involve an 

absurdity, determination of the mutual intent of the parties and 

interpretation of the contract is to be based on the language of the agreement 

alone.” (Leeman, supra, 236 Cal.App.4th at p. 1374.)

“A trial court’s factual findings on a motion to enforce a settlement 

pursuant to [Code of Civil Procedure] section 664.6 are subject to limited 

appellate review and will not be disturbed if supported by substantial 

evidence. [Citation.] ‘To the extent we engage in the proper interpretation of 

section 664.6, however, we exercise our independent review.’ ” (Machado v. 

Myers (2019) 39 Cal.App.5th 779, 790–791.)

B. The MOU Is Enforceable Notwithstanding Cenzone’s Claim That Wu 

Was Mistaken About the Content of the MOU

According to Cenzone, the trial court erred in enforcing the MOU 

because Cenzone did not consent to the MOU’s release of claims. Cenzone 

states that Wu mistakenly believed the release of claims applied only to the 

parties’ unknown claims and their known, asserted claims—not their known, 

unasserted claims. Cenzone argues that Wu purportedly left the mediation 

to meet with his legal counsel to discuss the prospect of filing a new lawsuit

involving the claims Cenzone tried, but was unable, to pursue against KaneBerman and Microbasics in the current case. Cenzone states, “Wu could not 

have intended to release claims that he did, in fact, leave the mediation to 

pursue[.]” As we will explain, Wu’s purportedly mistaken belief about the 
12

content of the MOU did not entitle Cenzone to rescind or resist enforcement 

of the MOU.

“A factual mistake by one party to a contract, or unilateral mistake, 

affords a ground for rescission in some circumstances. ... Civil Code 

section 1577 states in relevant part: ‘Mistake of fact is a mistake, not caused 

by the neglect of a legal duty on the part of the person making the mistake, 

and consisting in: [¶] 1. An unconscious ignorance or forgetfulness of a fact 

past or present, material to the contract ....’ ” (Donovan v. RRL Corp. (2001) 

26 Cal.4th 261, 278 (Donovan); see Estate of Eskra (2022) 78 Cal.App.5th 209, 

221–223 (Eskra) [a party’s mistaken belief about the content of an agreement 

is a mistake of fact].)

“Where the [party seeking to enforce the contract] has no reason to 

know of and does not cause the [mistaken party’s] unilateral mistake of fact, 

the [mistaken party] must establish the following facts to obtain rescission of 

the contract: (1) the [mistaken party] made a mistake regarding a basic 

assumption upon which the [mistaken party] made the contract; (2) the 

mistake has a material effect upon the agreed exchange of performances that 

is adverse to the [mistaken party]; (3) the [mistaken party] does not bear the 

risk of the mistake; and (4) the effect of the mistake is such that enforcement 

of the contract would be unconscionable.” (Donovan, supra, 26 Cal.4th at

p. 282.) We will assume for purposes of this appeal that the first, second, and 

fourth Donovan factors are satisfied. Even so, Cenzone has not established

that Wu’s purported unilateral mistake about the content of the MOU would 

entitle Cenzone to rescind the MOU or halt its enforcement.

As an initial matter, Cenzone presented no admissible evidence 

showing that Kane-Berman or Microbasics—the parties seeking to enforce

the MOU—knew of, or should have known of, Wu’s mistake. We will assume, 
13

as Wu and Hinze averred in their declarations, that Wu told Kane-Berman 

and Skogen that he had a meeting scheduled after the parties’ mediation. 

However, nothing in these declarations, or any of Cenzone’s other evidence,

suggests that Wu contemporaneously told Kane-Berman or Skogen that his 

post-mediation meeting was with his legal counsel. Nor did these 

declarations, or any of Cenzone’s other evidence, state or imply that Wu told

Kane-Berman or Skogen that the purpose of his meeting was to discuss the 

filing of a separate lawsuit against Kane-Berman and/or Microbasics. Thus, 

even if Wu did tell Kane-Berman and Skogen about the meeting he had 

scheduled after the mediation, that fact alone does not in any way suggest

that Kane-Berman, Microbasics, or Skogen were aware that Cenzone was

mistaken about the scope of the release of claims in the MOU.2

Because Kane-Berman and Microbasics did not know of, or have reason 

to know of, the unilateral mistake, Cenzone would be entitled to rescind the 

MOU based on its mistake only if it did not bear the risk of the mistake (in 

addition to satisfying the other Donovan criteria). (Donovan, supra, 26 

Cal.4th at p. 282.) “[T]he risk of a mistake must be allocated to a party 

where the mistake results from that party’s neglect of a legal duty.” (Id. at p. 

283.) Here, the risk of a mistake must be allocated to Cenzone—and Cenzone 

alone—because Cenzone (through its agent, Wu) neglected its legal duty by 

failing to fully read and understand the MOU before signing it.

2 Cenzone does not argue that Kane-Berman or Microbasics knew of the 

alleged mistake, or should have known of the alleged mistake, for any reason 

other than Wu’s pre-mediation statement that he had a meeting later that 

day. In particular, Cenzone does not rely on any declarations purporting to 

summarize the parties’ mediation communications. Nor could Cenzone rely 

on such evidence, as the trial court sustained objections to all of Cenzone’s 

evidence that ostensibly summarized the parties’ mediation communications. 

Those rulings are not challenged on appeal.
14

The case of Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 

1565 (Stewart) is instructive. There, the parties to a personal injury case

mediated their dispute and executed a written settlement agreement to 

resolve all of their claims, but the plaintiff later disavowed the settlement. 

(Id. at pp. 1569–1570.) The trial court entered summary judgment for the 

defendants based on the settlement agreement and the plaintiff appealed on 

grounds that there was no mutual assent to the settlement agreement. (Id. 

at p. 1570.) In particular, the plaintiff argued he did not consent to the 

settlement agreement because he did not read it, he did not understand it, 

and he only executed it at the behest of his legal counsel. (Id. at p. 1587.)

The Court of Appeal rejected the plaintiff’s lack of consent argument, 

determined the settlement agreement was enforceable, and affirmed the 

summary judgment order in favor of the defendants. (Stewart, supra, 134 

Cal.App.4th at pp. 1585–1589.) The court reasoned, “We need look no further 

than the third Donovan factor to conclude that plaintiff raised no triable 

issue of material fact concerning possible rescission of the settlement 

agreement.[] ‘It is well established, in the absence of fraud, overreaching or 

excusable neglect, that one who signs an instrument may not avoid the 

impact of its terms on the ground that he failed to read the instrument before 

signing it.’ [Citations.] [¶] Plaintiff has cited no California cases (and we are 

aware of none) that stand for the extreme proposition that a party who fails 

to read a contract but nonetheless objectively manifests his assent by signing 

it—absent fraud or knowledge by the other contracting party of the alleged 

mistake—may later rescind the agreement on the basis that he did not agree 

to its terms. To the contrary, California authorities demonstrate that a 

contracting party is not entitled to relief from his or her alleged unilateral 

mistake under such circumstances.” (Id. at pp. 1588–1589, fn. omitted.)
15

In Eskra, supra, 78 Cal.App.5th 209, the Court of Appeal reached a 

similar conclusion under analogous circumstances. In that case, a wife filed a 

probate petition seeking to be appointed the personal representative of her 

late husband’s estate, even though she and her husband had executed a 

premarital agreement terminating the wife’s rights to the husband’s estate in 

the event the couple divorced or the husband predeceased the wife. (Id. at 

pp. 215–216.) The wife introduced extrinsic evidence that she and her 

husband both told their respective attorneys that the agreement should apply 

only in the case of divorce, not death; however, the agreement was never

amended as the couple requested. (Id. at pp. 217–218.) Contrary evidence 

was also admitted showing that the husband in fact intended for the 

agreement to apply either in the event of divorce or his death. (Id. at 

pp. 218–219.) Ultimately, the couple signed the agreement without 

reviewing it during a meeting with the husband’s attorney that lasted for less 

than five minutes. (Id. at p. 219.) The trial court denied the wife’s petition 

for appointment as personal representative and found she was not entitled to 

rescind the agreement on grounds of unilateral mistake. (Id. at pp. 220–221.)

The Court of Appeal affirmed. (Eskra, supra, 78 Cal.App.5th 209.) It 

reasoned that, “[e]ven if [the husband] was aware of [the wife’s] mistake, she 

[was] not entitled to relief if she bore the risk of the mistake due to neglect of 

a legal duty.” (Id. at p. 225.) The court concluded the wife bore the risk of 

mistake due to a neglect of a legal duty based on her failure to read the 

agreement or meet separately with her legal counsel. (Id. at p. 229.) As the 

court stated, “the failure to read a contract generally constitutes neglect of a 

legal duty under [Civil Code] section 1577.” (Ibid.; see also id. at p. 229 

[wife’s “failure to read the Agreement and consult with [her attorney] means 

that she did bear the risk of her mistake”]; Casey v. Proctor (1963) 59 Cal.2d 
16

97, 104–105 [plaintiff’s failure to read release of claims or, if he did read it, to 

understand the release of claims, constituted a neglect of legal duty

precluding rescission]; Rest. 2d Contracts, § 157, com. b, p. 417 [“Generally, 

one who assents to a writing is presumed to know its contents and cannot 

escape being bound by its terms merely by contending that he did not read 

them; his assent is deemed to cover unknown as well as known terms.”].)

Based on these authorities, we conclude the trial court properly 

rejected Cenzone’s claim that the unilateral mistake of its representative 

(Wu) permitted it to rescind the MOU or otherwise stop its enforcement. 

There was no admissible evidence showing that Kane-Berman, Microbasics,

or Skogen placed time constraints or pressure on Wu to review or execute the 

MOU quickly; rather, any time constraints Wu experienced were selfimposed. Cenzone also does not argue that Kane-Berman, Microbasics, or 

Skogen perpetrated fraud or placed Wu in duress during the negotiation of 

the settlement or the preparation of the MOU. Nonetheless, Wu apparently 

did not read the MOU closely or, to the extent he read it at all, he did not 

review or understand the release of claims contained therein. If Wu did not 

read or understand the one-page MOU, Cenzone (Wu’s principal) neglected 

its legal duty and must be allocated the risk of Wu’s mistake.

Further, insofar as Wu labored under a mistaken belief about the 

contents of the MOU, Cenzone produced no admissible evidence tending to 

show that Kane-Berman or Microbasics were aware of this mistake. Indeed, 

Cenzone’s evidence establishes, at most, that Wu simply announced he had a 

meeting scheduled after the mediation. Wu’s statement, even if he made it, 
17

did not convey to Kane-Berman or Microbasics that Wu was mistaken about 

the content of the MOU or the release of claims in particular.3

Under these circumstances, the trial court properly rejected Cenzone’s 

claim that there was no meeting of the minds and correctly found that the 

parties mutually consented to the MOU, including the MOU’s unambiguous 

release of all claims between the parties, known and unknown.4

C. The MOU Is Enforceable Despite Cenzone’s Claim that Hinze Was 

Mistaken About the Content of the MOU

Next, Cenzone contends the court erred when it enforced the MOU 

because Cenzone’s legal counsel, Hinze, shared Wu’s mistaken belief about

the release of claims. In light of Hinze’s mistake, Cenzone argues the court 

should have exercised its discretionary authority under Code of Civil 

3 Cenzone requests judicial notice of a complaint it filed against KaneBerman and Microbasics on June 6, 2022, in which Cenzone asserts the 

claims it unsuccessfully tried to amend into the current litigation. We deny 

the request, as the complaint is irrelevant to the current proceeding.

4 At times in its briefs, Cenzone states the release of claims is reasonably 

susceptible to the meaning Wu attributed to it, which could be interpreted to 

mean the parties mutually assented to a limited release encompassing only 

unknown claims and known, unasserted claims. However, we do not 

construe Cenzone as arguing that the parties mutually assented to such a 

release. Cenzone repeatedly argues there was “a misunderstanding or lack of 

meeting of the minds between the parties,” describes the MOU as “defective,” 

and refers to the release as a “mistake.” As these characterizations make 

clear, Cenzone does not maintain that the parties mutually intended to 

execute a limited release of claims. Even if we did construe Cenzone as 

making such an argument, the argument would fail. Neither the plain text of 

the release of claims nor Cenzone’s evidence suggests that Kane-Berman or 

Microbasics intended for the release to apply only to unknown claims and 

known, unasserted claims.
18

Procedure section 473, subdivision (b), to relieve Cenzone from entry of 

judgment under Code of Civil Procedure section 664.6. 

Code of Civil Procedure section 473, subdivision (b), “provides for two 

distinct types of relief—commonly differentiated as ‘discretionary’ and 

‘mandatory’—from certain prior actions or proceedings in the trial court. 

‘Under the discretionary relief provision, on a showing of “mistake, 

inadvertence, surprise, or excusable neglect,” the court has discretion to allow 

relief from a “judgment, dismissal, order, or other proceeding taken against”

a party or his or her attorney. Under the mandatory relief provision, on the 

other hand, upon a showing by attorney declaration of “mistake, 

inadvertence, surprise, or neglect,” the court shall vacate any “resulting 

default judgment or dismissal entered.” ’ ” (Luri v. Greenwald (2003) 107 

Cal.App.4th 1119, 1126 (Luri).)

As noted, Cenzone claims the trial court erred in declining to exercise 

its authority under the discretionary relief provision of Code of Civil 

Procedure section 473, subdivision (b), to relieve Cenzone from entry of 

judgment due to Hinze’s mistake or excusable neglect. However, this 

argument fails because Cenzone never asked the court to exercise its 

discretionary authority in this manner. In its opposition to the motion for 

entry of judgment, Cenzone quoted the mandatory relief provision, in full, 

and then asked the court to relieve it from entry of judgment. But it omitted 

any quotation or reference to the discretionary relief provision.5 

Additionally, Cenzone never argued that Hinze committed excusable neglect, 

5 In its appellate reply brief, Cenzone states the opposition brief it filed 

in the trial court quoted Code of Civil Procedure section 473, subdivision (b), 

“in full, including language recognized to encompass the statute’s mandatory 

and discretionary relief provisions.” Cenzone is mistaken. It did not quote or 

in any other way reference the discretionary relief provision.
19

which is a basis for relief that is available exclusively under the discretionary 

relief provision. 

“ ‘Appellate courts are loath to reverse a judgment on grounds that the 

opposing party did not have an opportunity to argue and the trial court did 

not have an opportunity to consider. [Citation.] In our adversarial system, 

each party has the obligation to raise any issue or infirmity that might 

subject the ensuing judgment to attack. [Citation.]’ [Citation.] ‘ “The 

purpose of this rule is to encourage parties to bring errors to the attention of 

the trial court, so that they may be corrected.” [Citation.]’ [Citation.] [¶] 

Issues presented on appeal must actually be litigated in the trial court—not 

simply mentioned in passing. ‘ “[W]e ignore arguments, authority, and facts 

not presented and litigated in the trial court.” ’ ” (Natkin v. Cal. 

Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011.)

Further, a “trial court is not required to consider the availability of 

relief under the discretionary or mandatory provisions of [Code of Civil 

Procedure section] section 473 in the absence of any request for relief under 

those grounds.” (Luri, supra, 107 Cal.App.4th at p. 1126.) For example, in 

Luri, our colleagues in Division 5 of the Second District determined that a 

trial court did not err in declining to grant relief under the mandatory relief 

provision of section 473, subdivision (b), where the appellant requested relief 

only under the statute’s discretionary relief provision. (Id. at pp. 1124–1128; 

see Pacifica First National, Inc. v. Abekasis (2020) 50 Cal.App.5th 654, 658 

(Pacifica) [“To the extent [defendant] is arguing he was entitled to mandatory 

relief from default under section 473 of the Code of Civil Procedure, this 

argument is incorrect. [Defendant’s] motion referenced only discretionary 

relief under this provision; it does not discuss mandatory relief.”].)
20

Because Cenzone never asked the trial court for relief under the 

discretionary relief provision of Code of Civil Procedure section 473, 

subdivision (b), Cenzone “cannot now complain such relief was not awarded.” 

(Pacifica, supra, 50 Cal.App.5th at p. 658.) And, in the context of this case, 

Cenzone’s failure to request relief under the discretionary relief provision 

precludes it from obtaining reversal of the entry of judgment.6

2. The Trial Court Did Not Commit Reversible Error in Denying Cenzone’s 

Amended Motion for Leave to Amend the Complaint

In addition to challenging the entry of judgment, Cenzone argues the 

trial court abused its discretion in denying Cenzone’s request to amend its 

complaint to assert nine new causes of action against Kane-Berman and 

Microbasics. Cenzone asserts amendment was warranted because it 

discovered the facts giving rise to the new causes of action after filing the 

complaint and amendment would only require a “short trial continuance.” 

We will assume arguendo that the court erred in denying Cenzone’s 

amended motion for leave to amend its complaint. Even so, we will not 

reverse the denial order because the alleged error was harmless. The 

California Constitution “generally ‘prohibits a reviewing court from setting 

aside a judgment due to trial court error unless it finds the error 

prejudicial.’ ” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108, citing Cal. Const. 

art. VI, § 13.) It requires us “ ‘to affirm the judgment, notwithstanding error, 

if error has not resulted “in a miscarriage of justice.” ’ ” (F.P., at p. 1108; see 

also Code Civ. Proc., § 475 [“No judgment, decision, or decree shall be 

reversed or affected by reason of any error, ruling, instruction, or defect, 

unless it shall appear from the record that such error, ruling, instruction, or 

6 Cenzone does not assert that the trial court erred in denying its request 

for relief under the statute’s mandatory relief provision.
21

defect was prejudicial”].) “ ‘[A] “miscarriage of justice” should be declared 

only when the court, “after an examination of the entire cause, including the 

evidence,” is of the “opinion” that it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the absence of 

the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

Here, it is not reasonably probable Cenzone would have obtained a 

more favorable outcome but-for the order denying amendment because the

causes of action Cenzone sought to amend into the case fall squarely within 

the MOU’s release of claims, which broadly applies to all claims between the 

parties, whether or not those claims are asserted in the present case. Thus, 

the proposed causes of action would have been subject to the entry of 

judgment under the MOU, even if the court had allowed Cenzone to amend

them into the case. (See Levy v. Skywalker Sound (2003) 108 Cal.App.4th 

753, 771 [purported error denying amendment to complaint was harmless 

because “granting leave to amend would merely have delayed the 

inevitable”].) Because Cenzone’s proposed causes of action would have been 

subject to the entry of judgment, whether they were amended into the case or 

not, Cenzone suffered no prejudice from the allegedly erroneous denial of its 

motion for leave to amend its complaint.
22

IV

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on 

appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.