Filed 6/ 3 /22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF TH E STAT E OF CALIFORNIA

SECOND APPELLATE DISTR ICT

DIVISION EIGHT

BERT FILTZER

,

Plaintiff and Appellant

,

v.

MA RIO E. ERNST et al.

,

Defendant s and Re spondents

. B 308484

(L os Angeles C ounty Su per. C t. No. BC 592433 )

APPEAL from an order of the Superior Court of Los Angeles County

, Lia Martin

, Judge. Affirmed

. Levene, Neale , Bender, Yoo & Br ill ; Levene, Neal e , Bender,
Yoo & Golub chick, Kurt E. Ramlo and Todd M. Arnold for
Plainti ff and Appellant. Neufeld Marks, Paul S. Marks

, Yuriko M. S hikai and David
M. Safva ti for Defendants and Respondent s

.

_________________________________2 Appellan t B ert F iltzer appeals from a Minute Order and Order on Motion for Entry of Stipu lated Judg me nt

. Filtzer sued Respon dents Mario E. Ernst, Teri L. Ernst, and Ricardo’s on the
Bea ch ( collectively Ernst ) for breach of contract based up on Ernst’s failure to r epa y a p romissory no te. The p arties then entered into a settlement agreement ( Se ttlement Agr eement )

, and subsequently into a n agreement they both refer to as t he “Forbearance Agreement.” The parties ’ dispute centers on

w hether t he Forbearance Agreem ent comp letely satisfied Ernst’s

o b ligations under the Settlem ent Agreement. Filtzer contends
tha t the trial court erred by (1) interpreting the For bearance Agreement to be a full release of Ernst’s obligat ions under the
Settl ement Ag reement ; (2) interpre ting the Forbearance Agreement to h ave a duration “in perpetui ty ” rather tha n in
effec t for a “rea sonable” amount of time under California Sup reme Co urt precedent ; and (3) failing to apply judicial estoppe l to bar Ernst from a sserting that the Forbearance Agreemen t was anything other than a brief forbearance of the
S ettlement Agreement

. T he trial cou rt’s ruling was proper . We affirm

.

BACKGROU ND
On A ugust 25, 2015, Filtzer filed a complaint for breach of contract and money h ad and rec eived against Ernst, based up on Ernst’s failure to repa y a $250,000 promissory note

. On
October 23, 2015, the parties entered into the Settlement Agree ment pr oviding that Ernst owed Filtzer $288,720.67 in principal and interest, plus $36,217.00 in attorneys’ fees a nd

costs. The Sett lement Agreement detailed a schedu le for Ernst to pay Filtzer monthly, startin g November 1 , 2015
, and ending on
No vember 1, 2018. It al so provided for three “Settlement3

Payment Forebearanc e[s]

, ” and stated that “ [u] se o f any or all of the three (3) Paymen t Forbearance months shall not extend the November 1, 2018 due date for the Fi nal Payment. ” Th e parti es further agreed that Filtzer would enter a stipulated judgment

,

a ttached t o the Sett lement Agreement, if:

“ Defendants fail to timely deliver any of th e Settlement
Pa yments, unl e ss Defendants have validly utilized a Payment
Forbe arance pursu ant t o the t erms of this Agreement

. . . However, upon Defendants’ failure to t imely del iver any o f the Settlement Paym ents, unless Defendants have validly utilized a Payment Forbea rance pursu a nt to the terms of this Agreement,
Plaintiff shall be authorize d to file th e Stipulated Judgment via ex parte notice or noticed motion.” (Ita lics omitted.)
Subs equently, o n February 19, 2019, during mediation (and
months after the final payment was due i n 2018 under the Settlement Agreement) , the parties executed th e Forbearance
A greemen t, which states in relevant part: “Filtzer ag rees to forbear from taking a ction to o bt ain entry of the stipulated judgment in the R. Filtzer v . Mario Ernst et al.
acti o n (Case No. BC592433 ) and/or to enforce the same, pr ovided that, by no later th an 5:00 p.m. Pacific Time on March 19, 2019,
M ario Ernst delivers to counsel for [F iltzer]

. . . (1 ) a certified
check or a wire in the am ount of one h undred and fifty thousand
d olla rs ($150,000.00) . . . and (2) a list of Mario Ernst’s asse ts and
liabilities st ated un der penalty of perjury. In the ev ent Mario Ernst fails to timely provide the payme nt o r list of assets and
liabilities refere nced herein, Bert Filtzer shall be imme diate ly entitled to take any and all action to obta in entry of the stipulated judgmen t in th e R. Filtzer v. Mario Ernst et al . action (Case No. BC 592433 ) and/or to enfo rce th e sa me.” Ernst met4

these obliga tions by making a payme nt of $150,000 and pr ovidin g the required documents on March 19, 2019 before 5 :00 p.m. Pac ific Time

. Meanwhile on Februar y 28 , 2019, in a different case between the same pa rties, Fil tzer filed an ex parte motion to
attach the assets of Ernst. On March 1, 2019, Ern st argued in
his opposition to that motion that, among other things, the
motion should be denied because the p arties had “reached a (brief) forbearance agreement .” That same day, after a hearing, a

tr ial court denied Filtzer’s motion, writing th at Filtzer failed to
show “ irreparable harm.” Finally, on February 21, 20 20, a year after the pa yment was made under the Forbearance Agreement, Filtz er file d a Motion for Entry of Stipulated Judgment , claiming that Ernst still owed him $190,5 47.02. On Au gust 27, 2020, after a hear ing

, the trial court denie d Filtz er’s motion on the basi s that the Forbearance Agreement was intend ed to be i n “full sa tisfaction”
and “release” of the balance due under the Settlement Agreement. Filtzer appealed.
DISCUSSION
On appeal, we apply a de novo standard of review to interpret a contract . ( Hann a v. Mercede s

- Benz USA, LLC (2019) 36 Cal.App .5th 49 3, 507 ; City of Hope National Medical Cen ter v. Genentech, Inc . (2008) 43 Cal.4th 375, 393

– 394.) This standard applies even w here conflicting inferences may be drawn from

u ndisputed extrinsic evi dence, “ unless the i nterpretation turns upon the cred ibility of extrinsic evidence.” ( Parsons v. Bristol Development Company (1965) 62 Cal.2d 861 , 865 ; accord

, Garcia
v. Truck Ins. Exch ange (1984) 36 Cal.3d 426, 439.) Here, t here is5

no conflict in the cr edibilit y of extrins ic evidence, and we review
the tri al cou rt’ s interpretation of the contract de novo. On the issue of judicial estoppel, we inde pendently review whether judicial estop pel is proper on the record evidence. “I f the

e lements for judicial e stoppel are present, whether to apply the
doctrine is within th e trial court’s discreti on, which we review for an abuse of discretion.” ( DotConnec tAfrica Trust v. Internet Corp. for Ass igned Names and Numbers (20 21) 68 Cal.App .5th 11 41, 1158.)
I. The Tr ial Court Did Not Err in Holding T hat the
P arties I nt ended t he Forbearance Agreement to B e in F ull S atisfaction of Ernst’s O utstanding D ebt in
the Settlement Agreement
We first ex amine Filtzer’s argument the trial court erred in
its interpretation of the F o r b e a r a n c e A g r e e m e n t when it held
that it was intend ed by t he parties to be in full satisf action and release of the Settlement Agreement. Filtze r argues that the Forbearance Agre ement was only meant to be a tempor ary forbear ance of the Settlement A greem ent, such t hat he still had a right to entry of the stipul ate d judgment under the Settlement Agr eement. When a con tract is written, “the intentio n of the parties is
to be ascertai ned from the writing alone, if poss ible

. ” (Ci v. Code

, § 1639.) In constr uing a contr act, we asce rtain the objective
intent of the c ont ra cting parties at the time of the agreement. ( Gilkyson v. Disney Enterprises, Inc. ( 2021) 66 Cal.App.5th 900, 916.) I f a contract’s language is clear an d unambiguo us, int ent is
determined so lely by the l anguage with in the four corners of the

contract

. ( B rown v. Goldstein (2019) 34 Cal.A pp.5th 418, 432.)

“ ‘ The court generally may not con sider extrinsic evidence of any6

prior agreement

, ’ ” but may do so w hen the contrac t is su sceptible
to more than one in terpretation

. ( Ibid .) We must also assum e tha t t he parties did not intend any o f the language in the contract to be surplus, redu ndant, or to give rise to an absurd out come. ( Eith v. Ketelhut (2018) 31 Cal.Ap p.5th 1 , 19 ( Eith ) ; Civ. Code, § 1641.) The Forbearance Agreement does not explicitly state wh ether it was intended to be in full satisfaction of the Settlement Agreement

, and it is ambiguous as to this key questio n . Accordingly, we look to extrins ic evi dence a nd ap ply
the for egoing canons of const ruction to a scertain the parties’ objective i nt ent

. The Settlement Agreement, when read together with the Forbearance Agreement, s upports the trial cour t’s conclusion th at the parties intended the Forbear ance A greemen t to be in full
satisfaction of Ernst’ s outstandin g debt. The Settlement Agreement s et forth a four

- part monthly payment schedule with
a deadline for all payments by N ovember 1, 2018. It further
allowed for three forbearance periods

, but sta ted that the final

p ayment deadl ine could not be ex tended : “Pa yment Forbearance
months sha ll not extend the November 1, 2018 due date for the Final Payment.” T here is no other provision in the Settlement Agreement, or a ny other record evide nce, t hat p rov ides for a n extension of the November 1, 2018 deadl ine. Theref ore, when the

par ties executed the Forbearance Agreement on February 19, 2020, all debt was alread y past due . F iltzer could have immediately moved for entry of the stipulated judgment under
th e Settleme nt Agreement

. Of course, doing so would have
resulte d in a judgmen t o n paper, but not cash in hand. Instead, Filtzer agreed to the Forbearance Agreem ent. Nowhere does the Forbearance Agreement extend the Nove mber 1, 2018 d eadline

,7

nor does it r efer to an y kind of payment beyond the single

paym ent of $150, 000

. Reading the plain text of the Forbearance Agreement to avoid superfluous lang uage and/or absurd outcomes, ( s ee Eith

, supra, 31 Cal.App.5th at p. 19; Ci v. Code , § 16 41), the cla use provid ing that Filtzer can enter a stipulated judgment if “Ernst
fail s t o timely provide the payment or list of assets and liabilities” by March 19, 2019 would be unnecessary and give rise to a
redundant and absurd ou tcom e i f i t w as not inten ded to be in full

sa tisfaction and release of the Settlement Agreement. Fil tzer’s interpretation would mean that Ernst agreed to a contract that
allowed Fil tzer to enter the stipulated judgment if Er n st failed to timely meet his obligati ons un der the Forb earance Agreement

an d also if he did timely meet them b ecause if the ba la nce due

un der the Settlement Agreement carried over after payment
under the Forbeara nce Agreement, then Ernst remained in
breach after payme nt of the $150,000. As t he tri al court

r ecognized, under Filtz er’s reading, he could have filed the stipulated ju dgmen t on th e same day Ernst met his obligations
under th e F orbearance Agreement . The re would be no purpose in saying that the stipulated judgment entry was condition ed on Ernst fail ing to pay the $150,00 0 if Filtzer was entitled to enter the judgment whe th er or not Ernst paid the $150,000. Filtzer received $150,000 in cash, without the t ime, expense

, and

unc ertainty of trying to collect on a money judgment. Ernst

rec ei ved a reductio n in the debt, and avo idance of a recorded money judgment. The trial co u rt ’s interp retation of the contracts
rendered the terms consistent with the contract l anguage and
normal m otivations of creditors and debtors.8 Filtzer claims use of t he wor d “for bea r” in the Forbearance
A greement means that the Forbearance Agreement itse lf wa s inten ded to be temporary. We reject this claim. The Forbearance Agreement pro vides for a month

- lo ng forbearance concerning a newly created obligation: the pay men t o f $150,000 by March 19,
2019. It was accurate and appropriate to describe Filtzer a s fo rbearin g from proceeding with entry of judgment for 30 days,
since Ernst’s debt w as not eliminated du ring that time. But since, as explained above, we read the i nte nt of the Forb earance Agreement to r esolve the debt that had become due under the
Sett l e men t Agree ment, there was nothing left to “forbear” once the $150,000 was paid. Alt hough we (and the pa rties) refer to it for consistency as the “Forbearance Agreem ent ,” the parties simply titled the act ual document “Agreement,” undermining
Filtzer’s ar g u men t that temporary forbearance was the only

purpose. Filtzer also urges us to lo ok to evi d ence that mediation was ongoing, asserting that the parties did not int end th e Forbearance Agreement to satisfy all obligations under the Settlement Agreem ent
, b u t was meant only as a temporary
forbearance , because mediation was not over

. The record does provide for a subsequent me diation date of March 29, 201 9. Ernst argues, h owever, that the mediation involved multiple
l awsuits betwe e n the parties. Filtzer do es not argue otherwise in
his r eply b rief, and the record do es establish that there were multiple cases betwee n the parties that were part of the ongoing
mediation. We d o not find that the existence of a s ingle,
sub s equent mediation date, possibly in rega rd to a diff erent case, changes our interpret at ion of the Forbearance Agreement in light9

of the p lain text and absurd conseque nces n oted above if the Settlement Agreement was still in effect.
We acknowl edg e that the Forbearance Agreement is lacking in typ ical “settle ment in full” language. But it i s also lacking in contrary language about there being any payments due
in the fut ure. It is this ambiguity that necessitates examining
the contrac t language and surroundi n g circumstances, and which

causes us to agree with the trial court’s interpretation of what the parties intended. We conclude that the parties intended the Forbeara nce Ag reement to be in full satisfaction of Ernst’ s debt if Ernst complied by Ma rch 19 , 2019

. I I. The Forbearance Agreement Did Not “ Forbear ” the Settlement Agreement for a “ Re as onable ,” Limited
Period of Time Filtzer further argues that because the Fo rbeara nce Agreement is silent as to the period it “for bears” the Settle ment Agreeme nt, i t should be construed as lasting for only a “reasonable, ” and not permanent, length of t ime under Supreme Court prece de nt in Consolidated Theaters, Inc. v. Theatrical Stage Employee s Union (1968) 69 Cal. 2d 713, 71 8 ( Consolidated Theaters) . For t h e r eason s in part I. above we disagree, and
Filtzer’ s cited case law following this p r ecedent does not change
this conclusion.
Consolidated Theaters held that “[i] n cons truing contracts
which call for . . . forbearance, but which conta in no express term of durat ion, it is first necessary to determine whet her the
inte ntion of the parties a s to duration can be implied from the
nature of the contract and the circumstan ces su rrounding it.” ( Consolidated Theaters, supra, 69 C al. 2d at p. 725. ) O nly if10

“ the na tur e of the contract and the totality of surrounding
circumstanc es give no suggestio n as to any ascertainable term,” does “the law usually impl[y] that the term of d uratio n shall be at
least a reasonable time

. . . . ” ( Id

. at p. 727.)
Unlike in Consolidate d Th e aters , the Forbearance Agreement does provid e a definite period of forbearanc e, bet we en the date of execution up until March 19, 2019. It is, however, silent, in g eneral , as to its relation to the Settlement Agree ment.
Even if t he Forbearance Agreem ent c ould be construed as forbearing the Settleme nt Agreement for some unspecified

amoun t of time, u nder Consolidated Theaters we would look to
the nature of the contrac t and to extrinsic evidence to ascertain
intention , as we did in c oncluding that the Fo rbea r ance Agreement was intended to resolve the b alance due u nder the
Settlement A greeme nt

. For the se reasons, the trial court did not err in failing to interpret the F orbear ance Agreement as lasting only a “reasonable ” period.
III. The T rial Court D i d N o t A buse I ts Discretion in Failing to Apply the Doctrine of Judicial Estoppel
F iltzer a lso argues that Ernst’s reference to a “ brief forbearance agreement,” in its briefi ng in a separate case between the parties means that Ernst is judicially estopped fro m

ar guing that the Forbearance Agreement was anyt hing but bri ef
or is a “rele ase or fu ll settlement agreement.” Before the trial court, Ernst argue d that his reference to a “brief” forbearance in
his opposition to Fil tzer’s moti on to atta ch was to the length of
the half

- page Forbearance Agreement itself , but also c ould b e read as referring to the month

- long per iod between the execution of the agreeme nt and the March 19, 2019 deadline. The trial
court did not addre ss F iltzer ’s judicial estoppel argument.11 We apply t he doctrine of judicial est op pel when “ ‘ “ (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi

- judicial administrative proceedings; (3) the party was successfu l in a sserting the first position (i.e., the
tri bunal a do pted the position or accept ed it as true); (4) t he two positions are totally inconsistent; and (5) the first posit ion was not taken as a result of ignorance, fraud, or mistake. ” ’ ” ( Cy toDyn of New Me xico , Inc. v. Amerimmune Pharmaceuticals

, Inc. (20 08) 160 Cal. App. 4th 288, 299 , fn. 9 ; The S wahn Group, Inc. v. Segal (2010) 183 Cal .App.4th 831, 842 .) Ernst argues that t he thi rd element of the judicial estoppel
doctrine is not met because the trial court tha t ruled on the
Ex Parte M otion to Attach did not accept as true his reference to
the w o r d “brief” i n describing the Forbearance Agreement, and
instead held that the mo tion s hould be denied due to a lack of “irreparable harm.” We agree. There is no record evidence that
eith er the trial c ourt imm ediately below or the one that

con si dered the Ex Parte Mot ion to Attach Asse ts ever relied in any way on Ernst’s re ferenc e to the Forbearance Agreement as
“brief .” ( See generally Levin v. Ligon (2006) 14 0 Cal.App.4 th 1456, 1477 [“ T he pivotal is sue is whet h er it can be established
that th e party succe eded in the first positi on or that the position was a basis or imp ortant to the [ decision ] ” .) Regardless, this is not the k ind of egregio us case where jud i cial estopp el should be ap plied. Judicial estoppel i s an “equitable doctrine,” so i ts application, e ven where all elements of the doctrine are met, is “discretionar y.” ( MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc

. (2005)
36 Cal.4 t h 412, 422. ) The doctrin e must be “applie d with

caut i on” and is “limited to egregio us circumstance s. ” ( Jogani v.12

Jo gani (2006) 141 Cal.App.4th 158, 170, 175, 177 .) It i s an

“ ‘ “ extraordinary remedy to be invoked when a party’s
inconsi stent behavior will o t herwise result in a m iscarriage of justice .” [ Ci ta tion. ] ’ ” ( Da ar & Newman v. VRL Internation al (200 5) 12 9 Cal.App.4th 482, 491 .) We see no miscarriage of justice resulting from Ernst arguing on March 1, 2019 that the Ex Parte Moti on to Attach
should be deni ed for var i ous r easons, including that the pa rties
ha d agreed to a “brief” forbearance, and the n als o arguing, after the March 19, 2019 deadline in the Forbearance Agreement, t hat
it was a full settlement and satisfaction of debt under the Settlement Agree ment after the b rief forbearance

. “ ‘ “ T h e d octrine of j udicial estoppel

. . . is invok ed to preve n t a party from changing its position over the course of judicial proceedings whe n such positional changes have an adverse impact on the judicial

process

. . . . Judicial es t oppel is ‘ intended to prot ect against a
lit igant playing “ fast and loose with the co ur ts

. ” ’ ” ’ ” ( Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 .) Such
ci rcumst ances do not exist here.
Moreov er , Filtzer has not met his burden in showi ng that

c o llateral estoppe l s hould be applied “ ‘ “ ‘ to pr event a party from changin g its position o ve r the course of judicial proceedings when such positional changes have an adver se imp act on the judicial

proces s.

. . . ’ ” ’ ” ( Minish v. Hanuman Fellows hip (2013)

214 Cal.App.4th 4 3 7, 449; see also A yala v. Dawson (2017)

1 3 Cal.App.5th 1319, 1326 [holding that the b urden is on party asserting doctrine].) There is no evidence of adverse impact on Fi ltzer or on th e judicial process, nor doe s Filtzer even try to

argue one.13 In sum, th e trial court did not abuse its discretion i n failing

to invoke the equitable doctri ne of judicial estoppel.
DISPOSITION
The order is affirmed

. Respondents sha ll recove r their

costs on appeal.
CERTIFIED FOR PUBLICATION

HARUTUNI AN, J. *

We c oncur:

STRATTON

, P. J

.

GRIMES, J.

* Ju dge of the S an Die go Superior Court, assigned by the Chief J us tice pursuant to article VI, section 6 of the California Constitution.