Filed 6/3/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

BERT FILTZER,

Plaintiff and Appellant,

v.

MARIO E. ERNST et al.,

Defendants and Respondents.

 B308484

 (Los Angeles County

 Super. Ct. No. BC592433)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lia Martin, Judge. Affirmed.

Levene, Neale, Bender, Yoo & Brill; Levene, Neale, Bender,

Yoo & Golubchick, Kurt E. Ramlo and Todd M. Arnold for 

Plaintiff and Appellant.

Neufeld Marks, Paul S. Marks, Yuriko M. Shikai and David 

M. Safvati for Defendants and Respondents.

_________________________________
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Appellant Bert Filtzer appeals from a Minute Order and 

Order on Motion for Entry of Stipulated Judgment. Filtzer sued 

Respondents Mario E. Ernst, Teri L. Ernst, and Ricardo’s on the 

Beach (collectively Ernst) for breach of contract based upon 

Ernst’s failure to repay a promissory note. The parties then 

entered into a settlement agreement (Settlement Agreement), 

and subsequently into an agreement they both refer to as the 

“Forbearance Agreement.” The parties’ dispute centers on 

whether the Forbearance Agreement completely satisfied Ernst’s 

obligations under the Settlement Agreement. Filtzer contends

that the trial court erred by (1) interpreting the Forbearance 

Agreement to be a full release of Ernst’s obligations under the 

Settlement Agreement; (2) interpreting the Forbearance 

Agreement to have a duration “in perpetuity” rather than in 

effect for a “reasonable” amount of time under California 

Supreme Court precedent; and (3) failing to apply judicial 

estoppel to bar Ernst from asserting that the Forbearance 

Agreement was anything other than a brief forbearance of the 

Settlement Agreement. 

The trial court’s ruling was proper. We affirm.

BACKGROUND

On August 25, 2015, Filtzer filed a complaint for breach of 

contract and money had and received against Ernst, based upon 

Ernst’s failure to repay a $250,000 promissory note. On 

October 23, 2015, the parties entered into the Settlement 

Agreement providing that Ernst owed Filtzer $288,720.67 in 

principal and interest, plus $36,217.00 in attorneys’ fees and 

costs. The Settlement Agreement detailed a schedule for Ernst to 

pay Filtzer monthly, starting November 1, 2015, and ending on 

November 1, 2018. It also provided for three “Settlement 
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Payment Forebearance[s],” and stated that “[u]se of any or all of 

the three (3) Payment Forbearance months shall not extend the 

November 1, 2018 due date for the Final Payment.” The parties 

further agreed that Filtzer would enter a stipulated judgment, 

attached to the Settlement Agreement, if: 

“Defendants fail to timely deliver any of the Settlement 

Payments, unless Defendants have validly utilized a Payment 

Forbearance pursuant to the terms of this Agreement . . . 

However, upon Defendants’ failure to timely deliver any of the 

Settlement Payments, unless Defendants have validly utilized a

Payment Forbearance pursuant to the terms of this Agreement, 

Plaintiff shall be authorized to file the Stipulated Judgment via

ex parte notice or noticed motion.” (Italics omitted.)

Subsequently, on February 19, 2019, during mediation (and 

months after the final payment was due in 2018 under the 

Settlement Agreement), the parties executed the Forbearance 

Agreement, which states in relevant part: 

“Filtzer agrees to forbear from taking action to obtain entry 

of the stipulated judgment in the R. Filtzer v. Mario Ernst et al. 

action (Case No. BC592433) and/or to enforce the same, provided 

that, by no later than 5:00 p.m. Pacific Time on March 19, 2019, 

Mario Ernst delivers to counsel for [Filtzer] . . . (1) a certified 

check or a wire in the amount of one hundred and fifty thousand 

dollars ($150,000.00) . . . and (2) a list of Mario Ernst’s assets and 

liabilities stated under penalty of perjury. In the event Mario 

Ernst fails to timely provide the payment or list of assets and 

liabilities referenced herein, Bert Filtzer shall be immediately 

entitled to take any and all action to obtain entry of the 

stipulated judgment in the R. Filtzer v. Mario Ernst et al. action 

(Case No. BC592433) and/or to enforce the same.” Ernst met 
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these obligations by making a payment of $150,000 and providing 

the required documents on March 19, 2019 before 5:00 p.m. 

Pacific Time.

Meanwhile on February 28, 2019, in a different case 

between the same parties, Filtzer filed an ex parte motion to 

attach the assets of Ernst. On March 1, 2019, Ernst argued in 

his opposition to that motion that, among other things, the 

motion should be denied because the parties had “reached a 

(brief) forbearance agreement.” That same day, after a hearing, a 

trial court denied Filtzer’s motion, writing that Filtzer failed to 

show “irreparable harm.” 

Finally, on February 21, 2020, a year after the payment 

was made under the Forbearance Agreement, Filtzer filed a

Motion for Entry of Stipulated Judgment, claiming that Ernst 

still owed him $190,547.02. On August 27, 2020, after a hearing, 

the trial court denied Filtzer’s motion on the basis that the 

Forbearance Agreement was intended to be in “full satisfaction” 

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. (Hanna v. Mercedes-Benz USA, LLC (2019) 

36 Cal.App.5th 493, 507; City of Hope National Medical Center v. 

Genentech, Inc. (2008) 43 Cal.4th 375, 393–394.) This standard 

applies even where conflicting inferences may be drawn from 

undisputed extrinsic evidence, “unless the interpretation turns 

upon the credibility of extrinsic evidence.” (Parsons v. Bristol 

Development Company (1965) 62 Cal.2d 861, 865; accord, Garcia 

v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439.) Here, there is
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no conflict in the credibility of extrinsic evidence, and we review 

the trial court’s interpretation of the contract de novo.

On the issue of judicial estoppel, we independently review 

whether judicial estoppel is proper on the record evidence. “If the 

elements for judicial estoppel are present, whether to apply the 

doctrine is within the trial court’s discretion, which we review for 

an abuse of discretion.” (DotConnectAfrica Trust v. Internet Corp. 

for Assigned Names and Numbers (2021) 68 Cal.App.5th 1141, 

1158.)

I. The Trial Court Did Not Err in Holding That the

Parties Intended the Forbearance Agreement to Be 

in Full Satisfaction of Ernst’s Outstanding Debt in 

the Settlement Agreement 

We first examine Filtzer’s argument the trial court erred in 

its interpretation of the Forbearance Agreement when it held 

that it was intended by the parties to be in full satisfaction and 

release of the Settlement Agreement. Filtzer argues that the 

Forbearance Agreement was only meant to be a temporary 

forbearance of the Settlement Agreement, such that he still had a 

right to entry of the stipulated judgment under the Settlement 

Agreement. 

When a contract is written, “the intention of the parties is 

to be ascertained from the writing alone, if possible.” (Civ. Code, 

§ 1639.) In construing a contract, we ascertain the objective 

intent of the contracting parties at the time of the agreement. 

(Gilkyson v. Disney Enterprises, Inc. (2021) 66 Cal.App.5th 900, 

916.) If a contract’s language is clear and unambiguous, intent is 

determined solely by the language within the four corners of the 

contract. (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432.) 

“ ‘The court generally may not consider extrinsic evidence of any 
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prior agreement,’ ” but may do so when the contract is susceptible

to more than one interpretation. (Ibid.) We must also assume 

that the parties did not intend any of the language in the contract 

to be surplus, redundant, or to give rise to an absurd outcome. 

(Eith v. Ketelhut (2018) 31 Cal.App.5th 1, 19 (Eith); Civ. Code, 

§ 1641.) The Forbearance Agreement does not explicitly state

whether it was intended to be in full satisfaction of the 

Settlement Agreement, and it is ambiguous as to this key 

question. Accordingly, we look to extrinsic evidence and apply 

the foregoing canons of construction to ascertain the parties’ 

objective intent. 

The Settlement Agreement, when read together with the 

Forbearance Agreement, supports the trial court’s conclusion that 

the parties intended the Forbearance Agreement to be in full 

satisfaction of Ernst’s outstanding debt. The Settlement 

Agreement set forth a four-part monthly payment schedule with 

a deadline for all payments by November 1, 2018. It further 

allowed for three forbearance periods, but stated that the final 

payment deadline could not be extended: “Payment Forbearance 

months shall not extend the November 1, 2018 due date for the 

Final Payment.” There is no other provision in the Settlement 

Agreement, or any other record evidence, that provides for an 

extension of the November 1, 2018 deadline. Therefore, when the

parties executed the Forbearance Agreement on February 19, 

2020, all debt was already past due. Filtzer could have

immediately moved for entry of the stipulated judgment under 

the Settlement Agreement. Of course, doing so would have 

resulted in a judgment on paper, but not cash in hand. Instead, 

Filtzer agreed to the Forbearance Agreement. Nowhere does the 

Forbearance Agreement extend the November 1, 2018 deadline, 
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nor does it refer to any kind of payment beyond the single 

payment of $150,000. 

Reading the plain text of the Forbearance Agreement to 

avoid superfluous language and/or absurd outcomes, (see Eith,

supra, 31 Cal.App.5th at p. 19; Civ. Code, § 1641), the clause 

providing that Filtzer can enter a stipulated judgment if “Ernst 

fails to 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 outcome if it was not intended to be in full 

satisfaction and release of the Settlement Agreement. Filtzer’s 

interpretation would mean that Ernst agreed to a contract that 

allowed Filtzer to enter the stipulated judgment if Ernst failed to

timely meet his obligations under the Forbearance Agreement 

and also if he did timely meet them because if the balance due 

under the Settlement Agreement carried over after payment 

under the Forbearance Agreement, then Ernst remained in 

breach after payment of the $150,000. As the trial court 

recognized, under Filtzer’s reading, he could have filed the 

stipulated judgment on the same day Ernst met his obligations 

under the Forbearance Agreement. There would be no purpose in 

saying that the stipulated judgment entry was conditioned on 

Ernst failing to pay the $150,000 if Filtzer was entitled to enter 

the judgment whether or not Ernst paid the $150,000. Filtzer 

received $150,000 in cash, without the time, expense, and 

uncertainty of trying to collect on a money judgment. Ernst 

received a reduction in the debt, and avoidance of a recorded 

money judgment. The trial court’s interpretation of the contracts 

rendered the terms consistent with the contract language and 

normal motivations of creditors and debtors.
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Filtzer claims use of the word “forbear” in the Forbearance 

Agreement means that the Forbearance Agreement itself was 

intended to be temporary. We reject this claim. The Forbearance 

Agreement provides for a month-long forbearance concerning a 

newly created obligation: the payment of $150,000 by March 19, 

2019. It was accurate and appropriate to describe Filtzer as

forbearing from proceeding with entry of judgment for 30 days, 

since Ernst’s debt was not eliminated during that time. But 

since, as explained above, we read the intent of the Forbearance 

Agreement to resolve the debt that had become due under the 

Settlement Agreement, there was nothing left to “forbear” once 

the $150,000 was paid. Although we (and the parties) refer to it 

for consistency as the “Forbearance Agreement,” the parties

simply titled the actual document “Agreement,” undermining 

Filtzer’s argument that temporary forbearance was the only 

purpose. 

Filtzer also urges us to look to evidence that mediation was 

ongoing, asserting that the parties did not intend the 

Forbearance Agreement to satisfy all obligations under the 

Settlement Agreement, but was meant only as a temporary 

forbearance, because mediation was not over. The record does 

provide for a subsequent mediation date of March 29, 2019. 

Ernst argues, however, that the mediation involved multiple 

lawsuits between the parties. Filtzer does not argue otherwise in 

his reply brief, and the record does establish that there were 

multiple cases between the parties that were part of the ongoing 

mediation. We do not find that the existence of a single, 

subsequent mediation date, possibly in regard to a different case, 

changes our interpretation of the Forbearance Agreement in light 
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of the plain text and absurd consequences noted above if the 

Settlement Agreement was still in effect. 

We acknowledge that the Forbearance Agreement is 

lacking in typical “settlement in full” language. But it is also 

lacking in contrary language about there being any payments due 

in the future. It is this ambiguity that necessitates examining 

the contract language and surrounding 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 Forbearance 

Agreement to be in full satisfaction of Ernst’s debt if Ernst 

complied by March 19, 2019. 

II. The Forbearance Agreement Did Not “Forbear” the 

Settlement Agreement for a “Reasonable,” Limited 

Period of Time

Filtzer further argues that because the Forbearance 

Agreement is silent as to the period it “forbears” the Settlement 

Agreement, it should be construed as lasting for only a 

“reasonable,” and not permanent, length of time under Supreme 

Court precedent in Consolidated Theaters, Inc. v. Theatrical 

Stage Employees Union (1968) 69 Cal. 2d 713, 718 (Consolidated

Theaters). For the reasons in part I. above we disagree, and 

Filtzer’s cited case law following this precedent does not change 

this conclusion. 

Consolidated Theaters held that “[i]n construing contracts 

which call for . . . forbearance, but which contain no express term 

of duration, it is first necessary to determine whether the 

intention of the parties as to duration can be implied from the 

nature of the contract and the circumstances surrounding it.” 

(Consolidated Theaters, supra, 69 Cal.2d at p. 725.) Only if 
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“the nature of the contract and the totality of surrounding

circumstances give no suggestion as to any ascertainable term,” 

does “the law usually impl[y] that the term of duration shall be at 

least a reasonable time . . . .” (Id. at p. 727.) 

Unlike in Consolidated Theaters, the Forbearance 

Agreement does provide a definite period of forbearance, between 

the date of execution up until March 19, 2019. It is, however, 

silent, in general, as to its relation to the Settlement Agreement. 

Even if the Forbearance Agreement could be construed as 

forbearing the Settlement Agreement for some unspecified

amount of time, under Consolidated Theaters we would look to 

the nature of the contract and to extrinsic evidence to ascertain 

intention, as we did in concluding that the Forbearance 

Agreement was intended to resolve the balance due under the 

Settlement Agreement. For these reasons, the trial court did not 

err in failing to interpret the Forbearance Agreement as lasting 

only a “reasonable” period. 

III. The Trial Court Did Not Abuse Its Discretion in 

Failing to Apply the Doctrine of Judicial Estoppel

Filtzer also argues that Ernst’s reference to a “brief

forbearance agreement,” in its briefing in a separate case 

between the parties means that Ernst is judicially estopped from 

arguing that the Forbearance Agreement was anything but brief 

or is a “release or full settlement agreement.” Before the trial 

court, Ernst argued that his reference to a “brief” forbearance in 

his opposition to Filtzer’s motion to attach was to the length of 

the half-page Forbearance Agreement itself, but also could be 

read as referring to the month-long period between the execution 

of the agreement and the March 19, 2019 deadline. The trial 

court did not address Filtzer’s judicial estoppel argument. 
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We apply the doctrine of judicial estoppel 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 successful in asserting the first position (i.e., the 

tribunal adopted the position or accepted it as true); (4) the two 

positions are totally inconsistent; and (5) the first position was 

not taken as a result of ignorance, fraud, or mistake.” ’ ” 

(CytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, 

Inc. (2008) 160 Cal.App.4th 288, 299, fn. 9; The Swahn Group,

Inc. v. Segal (2010) 183 Cal.App.4th 831, 842.)

Ernst argues that the third element of the judicial estoppel 

doctrine is not met because the trial court that ruled on the 

Ex Parte Motion to Attach did not accept as true his reference to 

the word “brief” in describing the Forbearance Agreement, and 

instead held that the motion should be denied due to a lack of 

“irreparable harm.” We agree. There is no record evidence that 

either the trial court immediately below or the one that 

considered the Ex Parte Motion to Attach Assets ever relied in 

any way on Ernst’s reference to the Forbearance Agreement as 

“brief.” (See generally Levin v. Ligon (2006) 140 Cal.App.4th 

1456, 1477 [“The pivotal issue is whether it can be established 

that the party succeeded in the first position or that the position 

was a basis or important to the [decision]”.) 

Regardless, this is not the kind of egregious case where 

judicial estoppel should be applied. Judicial estoppel is an 

“equitable doctrine,” so its application, even where all elements of 

the doctrine are met, is “discretionary.” (MW Erectors, Inc. v.

Niederhauser Ornamental & Metal Works Co., Inc. (2005) 

36 Cal.4th 412, 422.) The doctrine must be “applied with 

caution” and is “limited to egregious circumstances.” (Jogani v.
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Jogani (2006) 141 Cal.App.4th 158, 170, 175, 177.) It is an 

“ ‘ “extraordinary remedy to be invoked when a party’s 

inconsistent behavior will otherwise result in a miscarriage of 

justice.” [Citation.]’ ” (Daar & Newman v. VRL International

(2005) 129 Cal.App.4th 482, 491.) 

We see no miscarriage of justice resulting from Ernst 

arguing on March 1, 2019 that the Ex Parte Motion to Attach 

should be denied for various reasons, including that the parties 

had agreed to a “brief” forbearance, and then also arguing, after 

the March 19, 2019 deadline in the Forbearance Agreement, that 

it was a full settlement and satisfaction of debt under the 

Settlement Agreement after the brief forbearance. “ ‘ “The 

doctrine of judicial estoppel . . . is invoked to prevent a party from 

changing its position over the course of judicial proceedings when 

such positional changes have an adverse impact on the judicial 

process. . . . Judicial estoppel is ‘intended to protect against a 

litigant playing “fast and loose with the courts.” ’ ” ’ ” (Jackson v.

County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) Such 

circumstances do not exist here. 

Moreover, Filtzer has not met his burden in showing that 

collateral estoppel should be applied “ ‘ “ ‘to prevent a party from 

changing its position over the course of judicial proceedings when 

such positional changes have an adverse impact on the judicial 

process. . . .’ ” ’ ” (Minish v. Hanuman Fellowship (2013) 

214 Cal.App.4th 437, 449; see also Ayala v. Dawson (2017) 

13 Cal.App.5th 1319, 1326 [holding that the burden is on party 

asserting doctrine].) There is no evidence of adverse impact on 

Filtzer or on the judicial process, nor does Filtzer even try to 

argue one. 
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In sum, the trial court did not abuse its discretion in failing 

to invoke the equitable doctrine of judicial estoppel. 

DISPOSITION

The order is affirmed. Respondents shall recover their 

costs on appeal.

CERTIFIED FOR PUBLICATION

HARUTUNIAN, J.*

We concur:

STRATTON, P. J.

GRIMES, J.

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.