Filed 9/20/23 Duran v. County of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JESS A. DURAN, JR.,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

B316064

(Los Angeles County

Super. Ct. No. 18STCV08815)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

Jess A. Duran, Jr., in pro. per., for Plaintiff and Appellant.

Gutierrez, Preciado & House and Calvin House, for 

Defendant and Respondent.

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Plaintiff and appellant Jess A. Duran appeals from the trial 

court’s judgment enforcing a settlement agreement between 

Duran and defendant and respondent County of Los Angeles 

(County). The primary question before the trial court was 

whether the County’s delay in performing one of its obligations 

under the agreement—recommending the settlement to County 

authorities for approval—was a material breach of the 

agreement, justifying Duran’s rescission and therefore 

terminating the agreement. The trial court found no material 

breach and granted the County’s motion to enforce the 

settlement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Settlement Agreement

Duran is a former social worker for the Los Angeles County 

Department of Children and Family Services (DCFS). In 2018, 

Duran filed a lawsuit against the County. The parties attended 

mediation and reached a settlement in August 2020. Under the 

terms of their agreement, the County agreed to pay $246,500 to 

settle all of Duran’s claims, contingent on approval by County

authorities, including the Board of Supervisors (the Board). The 

parties stipulated that the agreement would be deemed “null and 

void in the event the County’s approval authorities deny such 

approval.” The County had five months from the date of 

execution, until January 25, 2021, to recommend the settlement 

to the Board for approval. The agreement allowed the parties to

“execute an addendum . . . to extend the time for presentation to 

the Board of Supervisors” in case of emergency. The parties 

further agreed that Duran would be placed on paid

administrative leave until the Board approved the agreement 
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and, upon notice of approval, Duran would resign from his 

employment with the County.

The County’s Delayed Performance and Duran’s Purported 

Rescission

The County did not recommend the settlement to the Board 

by January 25, 2021. On February 1, 2021, the County payroll 

department emailed Duran and his supervisors to ask if his 

period of administrative pay had ended. Over three weeks later, 

on February 25, 2021, Duran replied, stating he would be 

returning to work the following month. Duran purported to 

rescind the settlement agreement by email the same day on the 

basis that the County’s failure to present the settlement to the 

Board for approval by January 25th rendered the agreement 

“null and void.”

On February 26, 2021, the Human Resources 

Administrator for DCFS sent Duran a letter reassigning him 

“home with pay,” also known as an “ordered absence.” Duran 

was instructed to remain available for work assignments during 

a regular work schedule but he was prohibited from entering any 

DCFS office or contacting DCFS employees about the 

reassignment.

On March 15, 2021, the County presented the settlement 

agreement to the Claims Board, which approved the agreement 

and forwarded it to the Board of Supervisors the same day. The 

County also presented the agreement “to a cluster meeting of 

Board deputies on March 17, 2021.” On April 6, 2021, the Board 

of Supervisors approved the agreement. The County then 

transferred the settlement payment to Duran’s attorney, who 

deposited the money in a trust account pending the resolution of 
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the parties’ dispute over the enforcement of the settlement 

agreement.

The Motion to Enforce the Settlement Agreement

By early May 2021, Duran had not resigned his position

despite the Board’s approval of the settlement agreement. The

County moved to enforce the settlement agreement. The County

contended Duran’s rescission due to the County’s delay did not 

excuse him from his obligation to resign because the timing of the 

County’s performance was not material to the settlement 

agreement.

Duran’s opposition to the motion explained that he agreed 

to the five-month period for performance because it would afford 

him time to look for a job with “an employer that would help 

[him] complete [his] ‘supervised clinical hours’ in psychotherapy,”

and that also participated in a student loan forgiveness program. 

He argued the County’s delay deprived him of these exact 

benefits: he had to forgo a new employment opportunity because 

he could not resign from his County position until the agreement 

was approved; he could not complete the supervised clinical hours 

necessary for licensure by the Board of Behavioral Sciences while 

on “ordered absence;” and he was at risk of losing eligibility for 

Public Service Loan Forgiveness if he did not find a position with 

a qualified employer “soon.”

The trial court granted the County’s motion. It found the 

approximately two-month delay from January 25, 2021 to the 

County’s presentation of the settlement agreement to the Board 

in mid-March was insignificant and not a material breach.

Duran, now self-represented, timely filed a motion for 

reconsideration, alleging that his counsel had “omitted several 

crucial facts” in the opposition to the motion to enforce the 
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settlement. Duran argued the County’s untimely performance 

was a material breach of the agreement and his repudiation was

therefore justified under Civil Code section 1689.

1 Duran also 

attached the employment offer he claimed he passed up due to 

the County’s delinquency, and additional emails he sent to the 

County notifying it of his rescission in March 2021.

In late July 2021, the trial court entered judgment granting

the motion to enforce the settlement and awarding the County 

$600 in attorney fees. The court denied Duran’s motion for 

reconsideration in September 2021, finding that Duran did not 

present new facts warranting reconsideration. The trial court 

also concluded the additional information in the motion did not 

alter its previous ruling that time was not of the essence and the 

two-month delay was not material. Duran timely appealed.

DISCUSSION

I. Substantial Evidence Supports the Trial Court Order

Granting the Motion to Enforce the Settlement 

Agreement

A. Standard of review

Code of Civil Procedure section 664.6, subdivision (a)

provides, in relevant part: “If parties to pending litigation 

stipulate, in a writing signed by the parties outside the presence 

of the court or orally before the court, for settlement of the case, 

or part thereof, the court, upon motion, may enter judgment 

pursuant to the terms of the settlement.” The Legislature 

enacted Code of Civil Procedure section 664.6 to establish “a 

summary, expedited procedure to enforce settlement agreements 

when certain requirements that decrease the likelihood of 

1 All further undesignated statutory references are to the 

Civil Code.
6

misunderstandings are met.” (Levy v. Superior Court (1995) 10 

Cal.4th 578, 585.)

A trial court’s findings of fact on a motion brought 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.” (Machado v. Myers (2019) 39 Cal.App.5th 

779, 790 (Machado).) Substantial evidence review “ ‘ begins and 

ends with the determination as to whether there is any 

substantial evidence contradicted or uncontradicted which will 

support the finding of fact.’ [Citations.]” (People v.

Overstock.Com, Inc. (2017) 12 Cal.App.5th 1064, 1079, italics 

omitted.) “[W]e must consider all of the evidence in the light 

most favorable to the prevailing party, giving it the benefit of 

every reasonable inference, and resolving conflicts in support of 

the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 

621, 630.) “ ‘Where different inferences may reasonably be drawn 

from undisputed evidence, the conclusion of the ... trial judge 

must be accepted by the appellate court.’ [Citation.].” (Winograd 

v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 633.) 

We review the trial court’s conclusions on questions of law de 

novo. (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1166.)

Several principles of appellate review also guide our 

analysis. “[A] trial court judgment is ordinarily presumed to be 

correct and the burden is on an appellant to demonstrate, on the 

basis of the record presented to the appellate court, that the trial 

court committed an error that justifies reversal of the judgment.” 

(Jameson v. Desta (2018) 5 Cal.5th 594, 609.) “We presume the 

trial court knew and properly applied the law absent evidence to 

the contrary.” (McDermott Will & Emery LLP v. Superior Court

(2017) 10 Cal.App.5th 1083, 1103.)
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B. Contract rescission: Applicable legal principles

Rescission is a “ ‘retroactive termination’ of a contract . . . .” 

(Nmsbpcsldhb v. County of Fresno (2007) 152 Cal.App.4th 954, 

959 (Nmsbpcsldhb).) “The consequence of rescission is not only 

the termination of further liability, but also the restoration of the 

parties to their former positions by requiring each to return 

whatever consideration has been received.” (Imperial Casualty & 

Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 184.)

A party may rescind only under the specific circumstances 

set forth in section 1689. (Nmsbpcsldhb, supra, 152 Cal.App.4th

at p. 959.) Section 1689 subdivision (b)(2) and (b)(4) permit a

party to unilaterally rescind a contract “[i]f the consideration for 

the obligation of the rescinding party fails, in whole or in part, 

through the fault of the party as to whom he rescinds,” or “[i]f the 

consideration for the obligation of the rescinding party, before it 

is rendered to him, fails in a material respect from any cause.”

“Case law has uniformly held that a failure of consideration 

must be ‘material,’ or go to the ‘essence’ of the contract before 

rescission is appropriate.” (Wyler v. Feuer (1978) 85 Cal.App.3d 

392, 403–404 (Wyler); Brown v. Grimes (2011) 192 Cal.App.4th 

265, 277 (Brown) [a party may be discharged from its duty to 

perform if the other party’s failure to perform constitutes a 

material breach].) “[T]rivial or inappreciable” breaches will not 

justify rescission. (Medico-Dental Bldg. Co. v. Horton & Converse

(1942) 21 Cal.2d 411, 433; Wyler, at pp. 403–404 [affirming a jury 

instruction that required a claim of rescission under section 1689, 

subdivision (b)(2) to arise from a material failure of 

consideration].) “[A] finding that a party failed to abide by 

certain settlement terms does not necessarily support a finding 

the party materially breached the parties’ agreement. [Citation.] 
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Only a material breach . . . would discharge [other parties] from 

their duties to perform under the agreement.” (Machado, supra,

39 Cal.App.5th at pp. 796–797; Taliaferro v. Davis (1963) 216 

Cal.App.2d 398, 412 [“The right of the injured to claim release 

from obligations and thus elect to terminate the contract depends 

. . . upon the ‘gravity of the breach.’ [Citation.]”].)

Whether a breach of a contract is material depends on “the 

importance or seriousness” of the breach and “the probability of 

the injured party getting substantial performance.” (1 Witkin, 

Summary of Cal. Law (10th ed. 2005) Contracts, § 852, pp. 938–

940.) “[T]he question of whether a breach of an obligation is a 

material breach, so as to excuse performance by the other party, 

is a question of fact.” (Brown, supra, 192 Cal.App.4th at p. 277.)

C. Substantial evidence supported the trial court’s 

finding that the County’s breach was not 

material

The trial court concluded Duran was not entitled to rescind 

the settlement agreement because there was no material breach 

by the County. Specifically, the court found the timing of the 

County’s recommendation of the settlement agreement to the 

Board for approval was not “of the essence” to the agreement 

such that the County’s delayed performance constituted a 

material breach. Substantial evidence supported this conclusion.

“Delay in performance is a material failure only if time is of 

the essence, i.e., if prompt performance is, by the express

language of the contract or by its very nature, a vital matter.” 

(Johnson v. Alexander (1976) 63 Cal.App.3d 806, 813; Gold 

Mining & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 27

(Swinerton) [failure to timely perform constituted material 

breach where time was of the essence].) “The general rule of 
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equity is that time is not of the essence of the contract, unless it 

clearly appear[s] from the terms of the contract, in the light of all 

the circumstances, that such was the intention of the parties.”

(Henck v. Lake Hemet Water Co. (1937) 9 Cal.2d 136, 143

(Henck).) The intent to make time “of the essence” must be 

“clearly, unequivocally and unmistakably shown or expressed in 

the document.” (Cushing v. Levi (1931) 117 Cal.App. 94, 104

(Cushing).)

The settlement agreement between Duran and the County 

does not include an express time-is-of-the-essence clause. The 

parties memorialized that the County would recommend the 

agreement for Board approval within five months of the date of 

execution. However, the existence of a date certain for 

performance is not alone sufficient to make the timing of that 

performance a material term of a contract. For instance, in 

Henck, supra, 9 Cal.2d 136, the court held a date certain to remit 

payment for water rights in a contract was “a means to insure 

prompt payment” and not a material term of the contract. (Id. at 

p. 144.) Similarly, in Cushing, supra, 117 Cal.App. 94, time was 

not essential to a contract which merely prescribed the day on or 

before which payment was to be made. (Id. at p. 104.)

Courts instead look for other indications that the parties 

intended a date for performance to be essential to the contract. 

For example, in Swinerton, supra, 23 Cal.2d 19, the time of 

performance was found essential to a lease agreement that 

required removal of minerals from a property because the 

contract expressly stated that the parties sought to take 

advantage of the “1937–1938 water and mining season.” (Id. at 

pp. 26–27.) Similarly, in Leiter v. Eltinge (1966) 246 Cal.App.2d 

306, the court found time was of the essence to an escrow 
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agreement where the defaulting party knew the non-breaching 

party needed the funds for another time-sensitive purchase 

agreement and had expressly agreed to payment by a date 

certain for that reason. (Id. at pp. 312–313, 316.) Conversely, 

the court in Katemis v. Westerlind (1953) 120 Cal.App.2d 537,

held the timing of an escrow deposit was not material to an 

escrow agreement where there was no “clear[-]cut language 

manifesting an intent to make time of the essence” and the 

document “patently [did] not expressly declare such to be the 

intention of the parties, nor does it do so with any degree of 

reasonable certainty.” (Id. at pp. 543–544.) A delayed escrow 

payment was therefore not a material breach.

Here, the settlement agreement does not contain any 

“clear-cut language” that manifests the intent of the County or 

Duran to elevate the January 25, 2021 deadline to a fundamental 

requirement of the contract. The settlement agreement does not

state that the five-month period was intended to preserve

Duran’s future employment opportunities, ability to accrue

clinical hours, or student loan forgiveness eligibility. The parties 

explicitly identified some elements of the agreement as material; 

they specified in the agreement that violations of the

confidentiality provisions would constitute a material breach.

The parties did not include similar language concerning the 

timing of the County’s performance. Additionally, the parties 

specifically noted that a denial of approval by County authorities 

was the one circumstance that would render the agreement null 

and void. The clauses delineating the timing of the County’s 

performance do not express any intent that delayed performance 

would similarly invalidate the agreement, or otherwise indicate 

the County’s rights under the contract would be forfeited “if the 
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terms or conditions of the contract are not complied with on the 

dates specified.” (Cushing, supra, 117 Cal.App. 94 at p. 104.)

Duran asserts the materiality of timely performance was 

established during settlement negotiations, during which he 

informed the County about the importance of the timing to his 

clinical hours and loan forgiveness. We note, however, that the 

County denies that Duran informed its representatives about the 

potential consequences of untimely performance during 

negotiations and Duran failed to produce evidence to substantiate

this claim. The record contains two declarations from Duran, 

both of which attest only to his subjective understanding that five 

months afforded him sufficient time to look for new employment, 

not that this reason or any other was communicated to the 

County. Based on the evidence before it, the trial court properly 

concluded the parties did not make the time of performance a 

material term of the agreement.

Substantial evidence further supported the trial court’s 

determination that the two-month delay in the County’s 

performance was not significant enough to materially breach the 

agreement. When time is not of the essence, delayed 

performance may still fulfill the breaching party’s obligations if it 

occurs within a reasonable time. (Becker v. Becker (1950) 36 

Cal.2d 324, 326; Magic Carpet Ride LLC v. Rugger Investment 

Group, L.L.C. (2019) 41 Cal.App.5th 357, 364 (Magic Carpet 

Ride) [applying substantial performance doctrine when a party 

performed but missed a deadline].)

The trial court could reasonably conclude that the County, 

by completing its performance within two months, fulfilled its 

obligations in a reasonable time. The County placed Duran on 

paid administrative leave after execution of the settlement 
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agreement, as required by its terms, and extended Duran’s 

employment through an “ordered absence” to account for the 

additional time it needed to complete its obligations. The County

also timely paid the full amount owed under the settlement 

agreement after it was approved, even though Duran had yet to 

resign. The County remedied the defects in its performance and 

Duran received what the contract calls for—compensation for 

dismissal of his claims against the County.

D. Application of the Restatement factors leads to 

the same result

Duran argues the trial court’s decision was inconsistent 

with the Restatement (Second) of Contracts factors that

determine whether a failure to perform is material. We disagree.

The Restatement factors include: “(a) the extent to which 

the injured party will be deprived of the benefit which he 

reasonably expected; [¶] (b) the extent to which the injured party 

can be adequately compensated for the part of that benefit of 

which he will be deprived; [¶] (c) the extent to which the party 

failing to perform or to offer to perform will suffer forfeiture; [¶]

(d) the likelihood that the party failing to perform or to offer to 

perform will cure his failure, taking account of all the 

circumstances including any reasonable assurances; [and] [¶]

(e) the extent to which the behavior of the party failing to 

perform or to offer to perform comports with standards of good 

faith and fair dealing.” (Rest.2d Contracts, § 241.) The factor 

test is flexible and intended to be applied “in such a way as to 

further the purpose of securing for each party his expectation of 

an exchange of performances.” (Rest.2d Contracts, § 241, com. a.)

The first two factors concern whether Duran received the 

benefit of the bargain struck by the settlement agreement. The 
13

benefit Duran reasonably expected from settling with the County 

was compensation for dismissal of his claims, which the County 

remitted to his attorney in April 2021. The parties’ intent in 

entering the agreement was to resolve the underlying lawsuit in 

exchange for monetary compensation, not to safeguard Duran’s 

future employment prospects or professional obligations. Duran’s 

alleged injuries resulting from the County’s untimely 

performance are unrelated to the benefits contemplated by the 

settlement agreement.

As to the third factor, a finding of material breach would 

cause the County to forfeit the resolution of Duran’s underlying 

claims against it, incur expenses related to ongoing litigation,

and risk potentially losing at trial. The magnitude of the 

County’s forfeiture strongly cuts against a finding of material 

breach due to delay, particularly where the settlement agreement 

is silent as to the materiality of timely performance and Duran 

has received what he is due under the contract. (Superior Motels, 

Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1051 

[“ ‘[The] law [is] slow to impute’ ” materiality where the contract 

is silent and “ ‘the significance of the default is grievously out of 

proportion to the oppression of the forfeiture’ ”].)

With respect to the fourth factor, Duran argues it was not 

likely that the County would cure its failure because County 

officials gave him no indication before the date of his purported 

rescission that they intended to perform, and they subsequently

failed to provide assurances about the County’s intent to cure. 

Yet, the record reflects the County’s willingness to perform.

Before missing the submission deadline, the County had already

partially performed by placing Duran on paid administrative 

leave pending Board approval. One day after Duran emailed the 
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County to rescind, the County reassigned Duran to work from 

home with pay “pending the outcome of an administrative 

review.” It is reasonable to infer that the County imposed this 

“ordered absence” because it intended to cure and sought to 

ensure Duran continued to be paid in the interim.

Events occurring after breach are relevant to the likelihood 

of cure. A party has an opportunity to cure its failure where time 

is not of the essence. (Rest.2d Contracts, § 242, com. a.) The 

County took advantage of this opportunity. It belatedly 

recommended the settlement agreement to the Board, and, upon 

approval, deposited the settlement funds with Duran’s attorney.

Because time was not of the essence, the trial court could 

reasonably conclude that this factor weighed against a finding of 

material breach. (Magic Carpet Ride, supra, 41 Cal.App.5th at 

pp. 365–366 [delayed performance constituted cure under 

Restatement test].)

Finally, Duran did not demonstrate bad faith or unfair 

dealing on behalf of the County. The County placed Duran on 

paid administrative leave and a paid “ordered absence” to 

account for the entirety of the period he awaited the County’s 

recommendation to the Board. Duran himself states that the 

County’s untimely action was a result of “clerical type error.” 

Substantial evidence supports the conclusion that the County did 

not act in bad faith.

The trial court could reasonably conclude that the County 

did not materially breach the settlement agreement under the 

Restatement factors and Duran was not entitled to rescind. We 
15

affirm the trial court’s order granting the motion to enforce the 

settlement.

2

II. The Trial Court Did Not Abuse its Discretion by

Awarding Attorney Fees to the County

Duran also challenges the trial court’s award of $600 in 

attorney fees to the County. We review attorney fee awards for 

abuse of discretion. (Laffitte v. Robert Half Internat. Inc. (2016) 1 

Cal.5th 480, 488.) “Under this standard, we do not disturb the 

award unless the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner.” (Stratton,

supra, 30 Cal.App.5th at p. 915.)

Section 1717, subdivision (a) entitles the prevailing party 

in a contract action to reasonable attorney fees when the contract 

specifically provides for fees. The parties’ agreement included an 

attorney fee provision. When, as here, a party obtains a

“ ‘ “simple, unqualified win” ’ ” on all contract claims in an action 

and the contract provides for fees, the prevailing party “is 

2 Duran also contends the trial court erred in denying his 

motion for reconsideration. We disagree. The trial court had no 

jurisdiction to consider Duran’s motion for reconsideration after 

the court entered judgment granting the motion to enforce the 

settlement. (Safeco Ins. Co. v. Architectural Facades Unlimited,

Inc. (2005) 134 Cal.App.4th 1477, 1482; Nave v. Taggart (1995) 

34 Cal.App.4th 1173, 1176–1178 [entry of subsequent judgment 

is construed as “an implied denial” of a pending motion for 

reconsideration].) Further, even if the court had jurisdiction, we 

would conclude the court did not abuse its discretion in denying 

the motion because Duran failed to present new facts warranting 

reconsideration. (Stratton v. Beck (2018) 30 Cal.App.5th 901, 916

(Stratton) [affirming denial of reconsideration motion where the 

movant “did not offer any new facts or law in support of the 

motion for reconsideration”].)
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entitled to attorney fees as a matter of right, eliminating the trial 

court’s discretion to deny fees under section 1717.” (Silver Creek,

LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th

1533, 1538, citing Hsu v. Abbara (1995) 9 Cal.4th 863, 875–876.)

There is no basis for this court to reverse an attorney fee

award mandated by the Civil Code. The trial court’s order 

awarding attorney fees is affirmed.

DISPOSITION

The trial court judgment is affirmed. The County shall

recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.