Filed 6/21/23 Tucker v. Heritage Custom Estates Association 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

KEVIN TUCKER,

Plaintiff and Appellant,

v.

HERITAGE CUSTOM ESTATES 

ASSOCIATION,

Defendant and Respondent.

 D079968

 (Super. Ct. No. 37-2018-

00021905-CU-BC-NC)

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

Robert P. Dahlquist, Judge. Affirmed.

David A. Kay for Plaintiff and Appellant.

Law Offices of Howard F. Burns and Howard F. Burns for Defendant 

and Respondent.

Kevin Tucker was assessed fines by his homeowner’s association, 

Heritage Custom Estates (Heritage), for parking a trailer in his driveway in 

violation of the association’s covenants, conditions, and restrictions (CC&Rs). 

Thereafter, Heritage brought a lawsuit against Tucker to recover the fines
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and other associated costs, which led to a default judgment against Tucker in 

2006 in the amount of $24,202.50. 

In 2008, Tucker entered into a settlement agreement with the 

association that required him to pay $5,600 within 30 days of the execution of 

the agreement. Tucker failed to pay and in 2009 Heritage began efforts to 

enforce the default judgment. These efforts eventually led to two lawsuits 

against Heritage, one by Tucker and one by his wife Teresa, attempting to 

avoid the consequences of the default judgment. The cases were consolidated 

and, after trial, the court rejected all of the Tuckers’ claims and entered 

judgment in favor of Heritage.1

Kevin Tucker now appeals, asserting the trial court erred because 

(1) the settlement agreement constituted a novation of his obligation to pay 

the default judgment; (2) the settlement agreement converted the default 

judgment into a $5,600 security interest obligating him to pay no more than 

that amount; and (3) contrary to the trial court’s finding, he lawfully 

tendered “$5,600 and appropriate interest” to Heritage supporting his claim 

for specific performance of the settlement agreement. None of these 

arguments has merit. Accordingly, the judgment is affirmed.2

1 This appeal concerns only Tucker’s lawsuit and not Teresa’s. 

2 Just before oral argument, Heritage filed a motion to dismiss the 

appeal based on the disentitlement doctrine and a request for this court to 

take judicial notice of several court orders made against Tucker in other 

proceedings. The motion to dismiss and request for judicial notice are denied 

as moot in light of this opinion affirming the judgement. 
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FACTUAL AND PROCEDURAL BACKGROUND

In July 2006, Heritage brought a limited civil lawsuit against Kevin 

Tucker in San Diego Superior Court (Case No. IN53684) asserting he violated 

Heritage’s CC&Rs by parking a trailer in his driveway and on the nearby 

street. Heritage’s complaint alleged that Tucker ignored Heritage’s notices to 

park the vehicle elsewhere or face daily fines, and that Heritage assessed

Tucker fines of $100 per day for a period of eight weeks until the trailer was 

removed. The lawsuit sought to recover total fines of $21,200, plus interest. 

In the fall of 2006, Heritage obtained a default judgment of $24,202.50 

against Tucker, consisting of $21,200, plus $1,760 in interest, $342.50 in 

costs, and $900 in attorney fees. The default judgment was served on Tucker 

and his lawyer in July 2007. 

In March 2008, Tucker and Heritage entered the aforementioned 

settlement agreement. Under the agreement, Tucker was obligated to pay 

Heritage $5,600 “in the form of a check payable” to Heritage and delivered to 

its counsel within 30 days of the execution of the agreement. If payment was 

not rendered within 30 days, the agreement imposed interest on all 

outstanding sums in the amount of 10% per year. The settlement agreement 

required Heritage to “execute a request for dismissal with prejudice of the 

complaint” upon payment by Tucker. The agreement also contained claim 
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releases for both parties. Heritage released all claims against Tucker, except 

“any liability or obligation created by” the agreement.3 

After the agreement was executed, Tucker failed to tender a check to 

Heritage. In 2008 or 2009, Heritage began to pursue collection of the default 

judgment and served Tucker with notice to appear at a judgment debtor’s 

examination. In 2010, a bench warrant was issued for Tucker for failing to 

appear for the debtor examination. The record here contains no further 

evidence of action by Heritage to collect the debt until December 2016, when 

“Heritage issued a written notice rescinding the 2008 settlement agreement” 

and served Tucker with a copy of the rescission notice. In January 2017, the 

court in the initial case brought by Heritage denied Tucker’s motion to 

enforce the settlement agreement and, alternatively, to set aside the default 

judgment. 

In May 2018, Tucker filed the instant lawsuit seeking to uphold the 

settlement agreement and avoid payment of the default judgment. Tucker 

alleged claims for equitable enforcement of the settlement agreement, 

equitable estoppel, breach of contract, “vacation of the judgment for lack of 

personal service,” violation of Tucker’s civil rights, and intentional 

interference with contractual relations. Heritage filed an answer to the 

complaint, raising the affirmative defenses of failure to state a claim, statute 

of limitations, litigation privilege, res judicata, collateral estoppel, and 

3 The provision releasing Tucker, numbered 2.1 in the agreement, 

contains a drafting error, which the trial court attributed to drafting 

counsel’s use of an old agreement as a template. It states liability is released 

by Heritage, “except as reserved in section 2.5 below....” However, section 2.5 

is a “waiver of rights pursuant to Civil Code Section 1542.” The trial court 

found section 2.1 was meant to refer to section 2.4, titled “Matters Not 

Included In The Released Matters,” which states “[t]he released matters do 

not include any liability or obligation created by this Agreement.” 
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judicial estoppel. Heritage amended its answer before trial to add an 

allegation that it rescinded the settlement agreement by notice to Tucker on 

December 23, 2016. Heritage amended its answer again after trial to add the 

affirmative defense of laches. 

The case proceeded to a one-day court trial in March 2021. After trial, 

the court issued a thorough ruling outlining the history of the underlying 

lawsuit and the related litigation, and rejecting all of Tucker’s claims. The 

trial court made several findings. It concluded Tucker was not entitled to 

specific performance of the settlement agreement since he had failed to 

perform his obligations thereunder. It found Tucker had not presented any of 

his claims in a timely manner, and improperly sought to enforce an 

agreement that was executed over 13 years earlier. Further, the court found 

that Tucker was improperly attempting to overturn the prior decisions of the 

court in the case filed by Heritage in 2006 that resulted in the default 

judgment against Tucker. 

Finally, the trial court rejected Tucker’s assertion that, as part of the 

settlement agreement, “Heritage gave up the right to pursue enforcement of 

the judgment against” Tucker and “released all claims against [him] except 

for the obligation to pay the $5,600 settlement amount.” Instead, the court 

concluded that the language of the settlement agreement was clear that the 

default judgment would remain operative until Tucker paid the settlement 

amount. The trial court pointed to several provisions in the settlement 

agreement in support of its determination: (1) Section 1.2, providing that the 

“underlying lawsuit would be dismissed ‘upon payment by DEFENDANT 

[Mr. Tucker] to PLAINTIFF [Heritage] of the SETTLEMENT SUM”; 

(2) section 1.4, stating the default “judgment would be vacated ‘[u]pon 

payment of the SETTLEMENT SUM’ ”; and (3) section 1.5, stating that “the 
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abstract of judgment, previously issued by the Court, would be released or 

withdrawn by Heritage ‘[u]pon payment of the SETTLEMENT SUM.’ ” The 

court found these specific provisions concerning the default judgment 

prevailed over the general release provision that Tucker relied on. 

After the court’s ruling, judgment was entered in Heritage’s favor. 

Tucker now appeals the final judgment.

DISCUSSION

Tucker challenges the trial court’s interpretation of the settlement 

agreement, arguing for the first time on appeal that the agreement 

constituted a novation of the default judgment that required him to pay no 

more than $5,600 and extinguished any liability arising from the default. He 

also contends that the settlement agreement converted the default judgment 

to a $5,600 security interest, and that his claim for specific performance was 

not precluded by his own failure to perform because he “tendered” $5,600 to 

Heritage. 

I

Legal Principles

We apply established appellate standards of review for this judgment 

following a bench trial. We begin with the settled principle that the 

interpretation of a contract generally presents a question of law for this court 

to determine anew unless the interpretation turns on the credibility of 

conflicting extrinsic evidence. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 

527; ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 

1266.) When a contract is reasonably susceptible to different interpretations 

based on conflicting extrinsic evidence requiring the resolution of credibility 

issues, its interpretation evolves into a question of fact to which the 

reviewing court applies the substantial evidence standard of review. (Id. at 
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pp. 1266‒1267.) Where the evidence is undisputed and the parties draw 

conflicting inferences, the reviewing court will independently draw inferences 

and interpret the contract. (Id. at p. 1267.) 

The court endeavors to effectuate the mutual intentions of the parties 

as it existed at the time of contracting insofar as it is ascertainable and 

lawful. (Civ. Code, § 1636.) “We discern the parties’ intention based on the 

written contract alone, if possible, but may also consider the circumstances 

under which the contract was made and its subject matter. [Citations.] We 

consider the contract as a whole, and interpret contested provisions in their 

context, not in isolation, with the aim of giving effect to all provisions, if 

doing so is reasonably possible. [Citations.] [¶] In interpreting a contract, we 

give the words their ordinary and popular meaning, unless the parties or 

usage have given the words a specialized or technical meaning.” (Camacho v. 

Target Corp. (2018) 24 Cal.App.5th 291, 306.)

II

Analysis

Tucker first asserts that under Civil Code section 1530, the parties’ 

settlement agreement was a novation of the default judgment.4 Heritage 

responds that Tucker did not raise this novation argument in the trial court; 

therefore, he cannot assert it for the first time on appeal. We agree with 

Heritage. In response to Heritage’s assertion that this argument is new, 

Tucker quotes the allegations in his complaint, then asserts that “Heritage 

4 Civil Code section 1530 defines novation as “the substitution of a new

obligation for an existing one.”
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clearly understood [from the quoted language] that Kevin was arguing that 

the default judgment had been replaced by the Settlement Agreement.” 

Tucker points to nothing in the record before this court to show that in 

the trial court he argued the settlement agreement constituted a novation 

under the Civil Code. Rather, the record shows only that he argued the

language of the settlement agreement released him from liability for the 

default judgment. These arguments are not, as Tucker claims, synonymous. 

Accordingly, Tucker’s assertion that the court erred by not finding the 

settlement agreement was a novation under the Civil Code is waived and we 

decline to exercise our discretion to consider it for the first time on appeal. 

(See Vasquez v. SOLO 1 Kustoms, Inc. (2018) 27 Cal.App.5th 84, 96 (Vasquez)

[“A party is not permitted to change his position and adopt a new and 

different theory on appeal. To permit him to do so would not only be unfair to 

the trial court, but manifestly unjust to the opposing litigant.”].)

Tucker next asserts that the default judgment served only as a security 

interest for the settlement amount of $5,600 and precluded Heritage from 

seeking to enforce the full amount of the default. He states that the parties 

“contemplated that Heritage would retain rights to execution under the 

default judgment to collect the $5,600 ow[ed] to it” and that Heritage “used 

the default judgment to collect more than what was owed to it.” As with his 

prior assertion, Tucker did not raise this security interest argument in the 

trial court. Rather, Tucker argued only that the settlement agreement 

should be interpreted to release his liability under the default judgment. We 

again follow the general waiver rule and decline Tucker’s request to consider 

this theory for the first time on appeal. (Vasquez, supra, 27 Cal.App.5th at 

p. 96.)
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Finally, Tucker asserts that he made an effective tender of the 

settlement amount, entitling him to specific performance of the settlement 

agreement. This argument lacks merit. “ ‘The standard elements of a claim 

for breach of contract are: “(1) the contract, (2) plaintiff’s performance or 

excuse for nonperformance, (3) defendant’s breach, and (4) damage to 

plaintiff therefrom. [Citation.]” [Citation.]’ [Citation.] A suit to recover 

damages for breach of contract is an ‘action at law in which a right to jury 

trial ordinarily exists.’ ” (Darbun Enterprises, Inc. v. San Fernando 

Community Hospital (2015) 239 Cal.App.4th 399, 409 (Darbun).) 

“A plaintiff may seek specific performance, an equitable remedy, as an 

alternative to damages .... [Citation.] To obtain specific performance, a 

plaintiff must make several showings, in addition to proving the elements of 

a standard breach of contract.” (Darbun, supra, 239 Cal.App.4th at p. 409.) 

Relevant here, a “ ‘plaintiff who seeks specific performance must ordinarily 

perform all conditions precedent to the defendant’s obligation.’ ” (Realmuto v. 

Gagnard (2003) 110 Cal.App.4th 193, 204.) “A grant or denial of specific 

performance is reviewed under an abuse of discretion standard.” (Real Estate 

Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

The trial court determined specific performance of the contract was not 

available to Tucker since he had not performed or tendered performance of 

his obligation to pay $5,600 to Heritage. Pointing to an allegation in his 

complaint and certain trial testimony, Tucker asserts this finding was error 

and that he did tender performance. “ ‘[A] tender is an offer of performance 

made with the intent to extinguish the obligation (Civ. Code, § 1485). When 

properly made, it has the effect of putting the other party in default if he 

refuses to accept it. ... [¶] ‘However, a tender to be valid must be of full 

performance (Civ. Code, § 1486), and it must be unconditional. (Civ. Code, 
10

§ 1494; [citations].)’ [Citation.] Tender must also be in good faith. (Civ. 

Code, § 1493.) If the party making the offer is unable or unwilling to 

perform, the tender is of no effect. (Civ. Code, § 1495; [citation].)” 

(Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 

Cal.App.5th 757, 789.)

To be released from the default judgment, the settlement agreement 

required Tucker to pay the settlement sum within 30 days of the execution of 

the agreement “in the form of a check payable to [Heritage] and delivered to 

counsel for PLAINTIFF.” There is no evidence in the record before this court 

that supports Tucker’s assertion that he tendered payment. Rather, the 

undisputed evidence shows Tucker failed to provide a check for $5,600 to 

Heritage’s counsel within 30 days of entering the settlement agreement, 

resulting in Heritage’s efforts to enforce the default judgment.

The evidence Tucker points to in his appellate briefing does not show 

otherwise. In support of his argument, he references an allegation in his 

complaint, which states that he “informed the court in the [default judgment 

case] and [Heritage], of the Settlement Agreement and its terms on or about 

August 26, 2016. At that time, Plaintiff tendered payment of $5,600.00 plus 

accrued interest thereon, as provided in the Settlement Agreement. HOA, by 

its statements and actions, rejected that tender.” This unsupported 

assertion, drawn from Tucker’s pleading, is not evidence that he tendered 

payment. Tucker also cites his own trial testimony in which he references an

“Exhibit 3” as evidence of a tender of payment. This document, however, was 

not admitted into evidence by the trial court and was not lodged in this court. 

Further, the cited testimony does not identify what the exhibit is. This 

testimony does not show that Tucker tendered payment to Heritage. 
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In short, Tucker has not shown the court’s determination that he did 

not tender payment to Heritage, as required by the settlement agreement,

was error. Reversal of the judgment on this basis is not warranted. 

DISPOSITION

The judgment is affirmed. Costs of appeal are awarded to respondent 

Heritage Custom Estates Association. 

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

KELETY, J.