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Filed 3/30/22 Lee v. Bank of America CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Calaveras)

----

DON H. LEE,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.

C091938

(Super. Ct. No. 17CV42098)

Plaintiff Don H. Lee and defendant Bank of America, N.A., settled a prior action

between them. Before the terms of the settlement had been satisfied, Lee filed this action

against Bank of America alleging causes of action related to the settlement. After the 

terms of the settlement in the prior action had been satisfied, the trial court ordered the 

parties to show cause why this case should not be dismissed as moot. After a hearing, the 

trial court dismissed this action as moot.
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Lee now contends (1) the trial court improperly determined mootness at a hearing 

on an order to show cause, (2) the trial court improperly relied on inadmissible evidence, 

and (3) the trial court erred in finding the case moot.

Finding no error, we will affirm the judgment.

BACKGROUND

In case No. 14CV40435, Bank of America sued Lee concerning a deed of trust 

secured by real property in Calaveras County.1 In a settlement conference for that case, 

the parties agreed to settle the case with specific terms. Two of the major terms were that 

Lee would reconvey the deed of trust and Bank of America would pay Lee $5,000. The 

parties agreed that Bank of America would prepare a formal settlement agreement. 

While Lee reconveyed the deed of trust, he refused to sign the settlement agreement 

prepared by Bank of America. And Bank of America did not give Lee $5,000.

On January 9, 2017, Lee filed this action (case No. 17CV42098) against Bank 

of America, alleging four causes of action relating to the settlement agreement in case 

No. 14CV40435 and Bank of America’s failure to pay him $5,000. The four causes of 

action were for breach of contract, breach of the covenant of good faith and fair dealing, 

promissory fraud, and cancellation of a recorded instrument.

Bank of America moved to enforce the settlement under Code of Civil Procedure 

section 664.6 and to obtain an order for Lee to sign the settlement agreement. The trial 

court granted Bank of America’s motion and ordered Lee to sign the settlement 

agreement. On its own motion, the trial court found that case No. 17CV42098 had been 

rendered moot by the settlement and therefore dismissed it. (Bank of America N.A. v.

Lee, supra, C084613.) Lee appealed, and this court affirmed the trial court’s order 

1 We take judicial notice of this court’s opinion in Bank of America, N.A. v. Lee

(June 25, 2019, C084613) [nonpub. opn.]. (Evid. Code, § 451, subd. (a).)
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enforcing the settlement but reversed the dismissal of 17CV42098 because Lee did not 

have notice and an opportunity to be heard before the dismissal. (Ibid.)

Thereafter, Lee executed the settlement agreement in case No. 14CV40435. Also, 

Bank of America delivered a check to Lee for $5,000 on December 12, 2019, and Lee 

deposited the check into his bank account. However, Lee changed his mind about 

accepting the money, so he sent a cashier’s check for $5,000 to Bank of America on 

January 6, 2020.

The trial court ordered the parties to show cause why case No. 17CV42098 was 

not rendered moot by this court’s ruling in case No. 14CV40435 and therefore should not 

be dismissed. Lee filed a memorandum opposing dismissal of case No. 17CV42098, and 

on February 7, 2020, the trial court held a hearing on its order to show cause. With the 

agreement of both parties, the trial court dismissed case No. 14CV40435 with prejudice. 

After hearing argument from the parties, the trial court also dismissed case No. 

17CV42098.2

2 The trial court dismissed this action (case No. 17CV42098) without prejudice. 

Normally, the designation as without prejudice would preclude appealability because 

there is no final judgment. Here, however, the case falls under a narrow exception in 

which the trial court intended to allow only a new action based on new facts. (Topa Ins. 

Co. v. Fireman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1336.) The trial 

court stated at the hearing: “I am going to order that 17CV42098 is dismissed . . . 

without prejudice to file a new Complaint if there are any new facts and new theories of 

law arising out of the entire settlement process.” Because the dismissal was with 

prejudice as to the facts involved in case No. 17CV42098, the dismissal is appealable. 

However, we note that res judicata would preclude consideration of any issue in a future 

action that was or could have been litigated in this action. (Bullock v. Philip Morris USA, 

Inc. (2011) 198 Cal.App.4th 543, 557.)
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DISCUSSION

I

Lee contends the trial court improperly determined mootness at a hearing on an 

order to show cause.

Before considering this contention, we note Lee finds fault with some of the 

statements the trial court made during the hearing on the order to show cause. For 

example, Lee faults the trial court for saying that the hearing on the order to show cause

was like a demurrer. But it does not matter what the trial court said in that regard 

because we review the correctness of the trial court’s ruling dismissing the action and not 

the reason for that ruling. (Muller v. Fresno Community Hospital & Medical Center

(2009) 172 Cal.App.4th 887, 906-907.) We therefore need not consider whether various 

statements made by the trial court were erroneous.

Lee argues the hearing on the order to show cause failed to give him a meaningful 

opportunity to present argument that case No. 17CV42098 should not be dismissed. 

While it is true a trial court must give notice and an opportunity to be heard before 

dismissing an action on its own motion, as this court noted in the decision in the prior 

appeal (Bank of America, N.A. v. Lee, supra, C084613), following remittitur the trial 

court gave Lee notice and an opportunity to be heard. The trial court notified Lee of the 

need to present his arguments on whether the case is moot, and in response, Lee filed a 

written memorandum and appeared at a hearing. Lee presents no persuasive argument 

that this procedure was constitutionally inadequate.

Lee also argues the hearing on the order to show cause was an inappropriate 

vehicle for determining mootness because the trial court made a factual determination

about whether Lee had been paid the $5,000 required by the settlement agreement. But 

the trial court did not make a factual determination; the material facts were undisputed. 

Rather, the trial court made a legal determination that dismissal was appropriate even 

though Lee had sent a $5,000 check to Bank of America.
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Lee’s arguments lack merit.

II

Lee next contends the trial court improperly relied on inadmissible evidence. 

He claims the trial court should not have taken judicial notice of (A) a declaration filed 

by Bank of America that $5,000 had been paid to Lee and (B) this court’s conclusion in 

the prior appeal that the formal settlement agreement was consistent with the settlement 

entered into by the parties at the settlement conference.

A

Lee, himself, declared: “Bank of America delivered a check for $5,000 to me on 

December 12, 2019. I deposited the check in my bank account as the check was not 

accompanied by any indication that the $5,000 had been tendered in full settlement of 

Case No. 17CV42098.” Lee’s suggestion that the trial court improperly relied on Bank 

of America’s declaration lacks merit because Lee declared the same material facts.

B

Other than claiming that a court cannot take judicial notice of a document for the 

truth of the facts stated in the document, Lee gives no reason why the trial court could not 

rely on the holding in our prior opinion that the formal settlement agreement was 

consistent with the settlement entered into by the parties at the settlement conference. 

(Bank of America, N.A. v. Lee, supra, C084613.) Having obtained a final determination 

concerning the consistency between the settlement terms and the formal settlement 

agreement, Lee is not entitled to relitigate that issue. (In re Estate of Bauer (1929) 

208 Cal. 199, 199-200.)

The record does not establish that the trial court relied on inadmissible evidence in 

dismissing the action.

III

In addition, Lee contends the trial court erred in finding the case moot. He does 

not connect his arguments to any particular cause of action alleged in his complaint in
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case No. 17CV42098; rather, he makes arguments about the legal effect of the facts and 

our prior decision in Bank of America, N.A. v. Lee, supra, C084613.

Once again, Lee argues he did not receive $5,000 in satisfaction of the settlement 

agreement because he tried to give the money back. In the trial court, he declared that he 

received the check for $5,000 from Bank of America and deposited it into his bank 

account. Later he obtained a cashier’s check for $5,000 and sent it to Bank of America, 

in his words, “to avoid what may have been an attempt [by Bank of America] to claim 

that the check for $5,000 was tendered in full compliance with [the] 2016 settlement, or 

in the alternative, tendered as an accord and satisfaction that fully satisfied the disputed 

claims alleged in Case No. 17CV42098.”

Bank of America’s payment of $5,000, which Lee accepted and deposited into his 

account, was obviously an effort to satisfy Bank of America’s obligation under the 

settlement agreement. Although Lee denies that the $5,000 payment satisfied the claims 

in case No. 17CV42098, he does not specify what claim it did not satisfy.

Lee argues he properly rejected the payment under California Uniform 

Commercial Code section 3311. He asserts he could reject the payment because there 

was no accompanying statement that it was in “full satisfaction of the claim.” (Cal. U. 

Com. Code, § 3311, subd. (b).) Lee also asserts there remained between him and Bank 

of America a “bona fide dispute” (Cal. U. Com. Code, § 3311, subd. (a)), and he validly 

returned the payment under California Uniform Commercial Code section 3311, 

subdivision (c)(2), which allows a party to return payment within 90 days. 

California Uniform Commercial Code section 3311 allows a party to propose a 

full settlement of a claim by sending a check and including the statement that it is in full 

satisfaction of the claim. If the other party accepts the payment, the claim is satisfied. 

(Cal. U. Com. Code, § 3311, subd. (b).) However, this provision does not apply to a 

settlement agreement like the one in this case, because here the matter was already settled 

in a writing for an agreed-upon amount and the check was in satisfaction of that settled 
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matter. California Uniform Commercial Code section 3311 applies only if there is a 

“bona fide dispute” concerning the amount owed. (Cal. U. Com. Code, § 3311, subd. (a); 

Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 150.) Here, 

there was no such dispute because the issue had been agreed upon and resolved before 

Bank of America made the payment. Lee’s unsupported assertion that the payment did 

not satisfy unspecified claims does not change this result.

“When a plaintiff has received all that he or she has demanded in the complaint, 

the case is considered ‘moot’; in other words, there is no further relief the court could 

provide. ‘ “Generally, courts decide only ‘actual controversies’ which will result in a 

judgment that offers relief to the parties. [Citations.]” ’ [Citation.] [¶] ‘The pivotal 

question in determining if a case is moot is therefore whether the court can grant the 

plaintiff any effectual relief. [Citations.] If events have made such relief impracticable, 

the controversy has become “overripe” and is therefore moot. [Citations.] . . . When 

events render a case moot, the court, whether trial or appellate, should generally dismiss 

it.’ [Citations.]” (Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th 780, 791.)

When events occurring after the filing of a complaint render a cause of action 

moot, the trial court may dismiss the cause of action on its own motion. (Rio Vista Farm 

Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 383.) Here, the signing of 

the settlement agreement in case No. 14CV40435 and the satisfaction of its terms 

rendered the complaint in case No. 17CV42098 moot because the latter action was 

predicated solely on the alleged failure of Bank of America to comply with the terms of 

the settlement agreement.

Lee makes additional arguments attacking the trial court’s conclusion that the 

current action is moot, but those arguments are also moot. For example, Lee claims the 

trial court erred in determining that Lee’s signing of the formal settlement agreement was 

a condition precedent to Bank of America’s obligation to pay Lee $5,000. However, 
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because the formal settlement agreement has been signed and the payment was made, it 

does not matter at this point whether one was a condition precedent of the other.

Because the parties settled their dispute and complied with the terms of the 

settlement agreement, the trial court properly concluded the current action is moot.

DISPOSITION

The judgment is affirmed. Bank of America is awarded its costs on appeal. 

(Cal. Rules of Court, rule 8.278(a).)

 /S/

MAURO, J.

We concur:

 /S/

BLEASE, Acting P. J.

 /S/

RENNER, J.