1

Filed 5/3/22 Eitani v. Simayof CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

LISA KROGER EITANI,

Plaintiff and Respondent,

v.

ADI SIMAYOF et al.,

Defendants and Appellants.

 A159547

 (San Francisco County Super. Ct.

 No. CGC-12519074)

Defendants Adi Simayof (Simayof) and Sarit Simayof-Cohen (Cohen) 

appeal the trial court’s order entering judgment pursuant to Code of Civil 

Procedure section 664.61 against each defendant, and various companies 

associated with defendants, based on written settlement agreements which 

Simayof and Cohen separately entered into with plaintiff Lisa Kroger Eitani. 

Defendants argue that the evidence presented to the trial court was 

insufficient to support entry of judgment against Simayof; that Cohen’s duty 

to pay money to Eitani pursuant to the settlement agreement never arose; 

that the settlement agreement between Eitani and Cohen was never intended 

to involve entry of judgment against Cohen; and, if entry of judgment against 

1 Further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
2

Cohen was proper, the trial court was required to reduce the amount of the 

judgment to reflect payments Simayof made to Eitani. Simayof also attempts

to raise a new issue, which he did not raise in the trial court, namely, that he 

and Eitani did not enter into a binding contract. Finding no error, we affirm.

BACKGROUND

A. Eitani Sues Simayof and Cohen for Breach of Contract

In 2008, Eitani, acting through her company Kroger Gems,

entered into a series of consignment agreements with SIMSF, Inc., a retail 

jewelry company owned and operated by Simayof. Pursuant to the 

consignment agreements, Eitani provided Simayof with loose diamonds 

valued at approximately $462,000; Simayof agreed to pay for the diamonds 

when he sold them or return the diamonds to Eitani. Cohen, an attorney 

licensed to practice law in California, is Simayof’s sister. In 2010, Eitani 

accepted post-dated checks for $170,000, executed by Cohen in her capacity 

as chief executive officer of World of Charms (WOC), a Nevada corporation, 

and provided additional diamonds to Simayof on consignment in reliance on 

these checks. SIMSF, Inc. failed to either pay Eitani or return the diamonds 

to her. 

Eitani filed suit in the Superior Court for the City and County of 

San Francisco on March 12, 2012, for conversion, fraud, breach of fiduciary 

duty, common counts, and breach of contract against Simayof, as an 

individual, and against the following businesses associated with Simayof: 

SIMSF, Inc.; Simayof, Inc.; GISF, Inc.; and YDAF, Inc. (collectively, Simayof 

defendants). Eitani also named Cohen, as an individual, and WOC as 

defendants (collectively, WOC defendants). Eitani alleged that each of the 

named defendants was the alter ego of the others.
3

B. Eitani Settles with the Simayof Defendants

On October 13, 2013, Eitani entered into a written settlement

agreement with the Simayof defendants entitled “Stipulation For Judgment” 

(Simayof stipulation). Eitani agreed that she would not request entry of 

judgment on the stipulation nor execute on the judgment provided the 

Simayof defendants paid her $462,000 over nine years as follows:

(a) No payments due for the initial 18 months;

(b) Commencing April 4, 2015, six monthly payments of $2,500;

(c) Commencing October 4, 2015, 12 monthly payments of $3,500;

(d) Commencing October 4, 2016, 30 monthly payments of $5,400; and

(e) Commencing May 4, 2019, 42 monthly payments of $5,785.72 until

 the balance was paid in full.

Eitani agreed to provide the Simayof defendants with written notice of 

default. If the default was not cured within 10 days after written notice, 

judgment “may be entered against [Simayof] Defendants for $462,000, less 

credits for payments made, and a Writ of Execution may issue without notice 

or hearing.” The parties agreed that “[t]his Stipulation contains the entire 

agreement between the parties with regard to its subject matter,” and that it 

could not be amended “except by a writing duly executed by the parties.” The 

parties further agreed that the court shall retain jurisdiction to enforce the 

terms of the settlement. 

The Simayof stipulation allowed Simayof to request modification of the 

payment terms annually under the following conditions:

“IT IS FURTHER AGREED that SIMAYOF may request a modification 

of the payment amount and Plaintiff may agree to such modification upon a 

verified showing of SIMAYOF’s financial difficulties, which proof shall

include any company owned or operated by SIMAYOF, or in which SIMAYOF

are [sic] an officer or holds a financial interest. Any such request can be 
4

made on an annual basis and shall be made no later than the September 1 

preceding the date the payments are to begin.” 

C. Eitani Settles with the WOC Defendants

On November 18, 2013, Eitani entered into a written settlement 

agreement with the WOC defendants entitled “Stipulation.” The parties 

agreed to the following terms:

“IT IS HEREBY STIPULATED that WOC will personally guarantee 

payment by SIMAYOF in the amount of $135,000, and execute the attached 

personal guarantee. Such guarantee shall remain in effect until Plaintiff 

receives $200,000 from . . . SIMAYOF pursuant to a Stipulation for Judgment 

entered into with SIMAYOF. Upon receipt and clearance of payment(s) in 

the amount of $200,000, Plaintiff will file a dismissal with prejudice as to 

WOC only.[2]

“IT IS HEREBY STIPULATED by and between Plaintiff and WOC . . . 

that in the event of any default on the payments by SIMAYOF, not cured 

within ten (10) days after written notice to WOC, WOC shall be obligated to 

pay Plaintiff $135,000.00, less credit for payments made.”

The parties further agreed that: (1) the stipulation sets forth their 

entire agreement; (2) the stipulation would not be filed with the court until 

there was a default in performance; and (3) the court would retain 

jurisdiction over the parties to enforce the stipulation until the stipulation 

was fully performed.

2 Confusingly, the parties also agreed that Eitani would file a request to 

dismiss the case against the WOC defendants without prejudice within 15

days of receiving the signed stipulation and personal guarantee. The timing 

and method of dismissal is not an issue which has been raised on appeal.
5

D. History of Performance Pursuant to the Stipulations

i. Simayof Fails to Make the $2,500 Payment Due on

 July 4, 2015

Simayof timely made the $2,500 payments to Eitani which were due on

April 4, 2015, May 4, 2015, and June 4, 2015. On July 6, 2015, Simayof told 

Eitani’s attorney that he was experiencing temporary financial difficulties; he 

asked for an immediate suspension of his obligation to make payments for 

three months. Eitani’s attorney denied this request, and thereafter sent 

written notice of default to defendants on July 9, 2015. The 10 days in which 

to cure the default expired on July 19, 2015 without Simayof or Cohen taking 

any steps to attempt to cure the default. Simayof renewed his request to 

modify the payment plan on July 19, 2015. Eitani’s attorneys told Simayof 

that if he submitted verified proof of his financial condition, as required by 

the Simayof stipulation, they would review it. Simayof did not provide Eitani 

with any financial documents in support of his request for modification prior 

to the September 1, 2015 deadline. 

ii. Eitani’s Initial Applications for Entry of Judgment

in 2015 and 2016 Are Denied

On October 14, 2015, Eitani submitted an ex parte application for entry 

of judgment pursuant to the stipulations. The court denied the ex parte 

application without prejudice to Eitani filing a noticed motion for entry of 

judgment pursuant to section 664.6. 

Eitani filed a noticed motion on March 7, 2016, seeking entry of 

judgment against the Simayof defendants in the sum of $454,500, and 

against the WOC defendants in the sum of $127,500. The court denied the 

motion on May 5, 2016, finding that (1) Simayof’s right to request 

modification of the payment schedule was a material term of the Simayof 

stipulation; (2) Eitani had a duty to “act reasonably on Mr. Simayof’s request 
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for modification of the payment schedule,” and her attorney’s emails 

summarily denying Simayof’s request that the parties discuss modification of 

the payment schedule were unreasonable; and (3) Eitani’s failure to 

reasonably consider Simayof’s July 6, 2015 request for modification 

“precludes her from establishing the required element of her claim for breach 

of the stipulation that she performed all the conditions required by the 

stipulation to be performed by her.” The court held that Cohen had no duty 

to pay Eitani “until there is a determination that the payment obligations in 

the [Simayof stipulation] have not been met[.]”

iii. Eitani and Simayof Negotiate Simayof’s Request to

Modify the Payment Schedule

On May 6, 2016, Simayof provided some financial information to 

Eitani’s attorneys in an effort to substantiate his contention that he was 

experiencing financial difficulties which warranted modification of the 

payment schedule. Eitani’s attorneys asked Simayof to provide additional 

information. In June 2016, Simayof asked to reduce his payments from the 

$3,500 per month required by the Simayof stipulation to $500 per month 

effective July 1, 2016. Simayof submitted additional financial records in 

support of his request. On August 25, 2016, Eitani’s attorneys notified 

Simayof that his financial data was still incomplete, and that the documents 

they had reviewed did not support a modification to $500 per month.

One of Eitani’s attorneys met with Simayof on October 5, 2016; she 

reviewed documents Simayof produced and questioned him about his 

finances. Eitani thereafter agreed to accept Simayof’s offer to make 

payments of $500 per month, but only on the condition that Simayof provide 

a security interest in real properties owned by Simayof and Cohen in 

exchange for the reduced payment plan. Simayof did not agree to provide the 

security interest and did not remit payment of $500 or in any amount. The 
7

impasse between the parties continued through April of 2017, with Simayof 

demanding that Eitani accept reduced payments of $500 per month and 

Eitani declining to reduce the payments until Simayof verified his financial 

data and/or provided a security interest in consideration of the payment 

reduction.

iv. Eitani Renews Her Application for Entry of Judgment

in 2017

On March 24, 2017, Eitani filed a second noticed motion for entry of 

judgment against the Simayof defendants and the WOC defendants. On 

April 25, 2017, the court again denied the motion on the ground that Eitani 

had not demonstrated that she reasonably considered Simayof’s modification 

request. The court found that Eitani’s request for a security interest in real 

property owned by Simayof and Cohen in connection with a payment 

reduction “was unreasonable as a matter of law in the instant circumstance.” 

In dictum, the court “suggested” that “it’s in [Simayof’s] best interest to

provide the financial documents and act in good faith in terms of doing that, 

to make what payments you can make.” 

v. Eitani Resumes Negotiations with Simayof Regarding

His Request to Modify the Payment Schedule

After the court denied Eitani’s second noticed motion to enter judgment 

against defendants, Eitani’s attorneys and Simayof resumed negotiations 

about whether the Simayof stipulation should be modified and, if so, on what 

terms. Simayof began sending payments of $500 per month to Eitani’s 

attorneys in May 2017. Simayof sent the checks despite being informed by 

Eitani’s attorneys that Eitani would not agree to modify the payment 

schedule “without a set payment proposal from you” and unless Simayof 

provided complete, verified financial data that supported a reduction of 

payments to $500 per month. Eitani’s attorneys explained to Simayof that a 
8

financial statement or an income and expense declaration signed under 

penalty of perjury would satisfy their demand for verified financial data. 

On September 5, 2017, Simayof informed Eitani’s attorneys: “As you 

know, a modification agreement is already in place . . . . In October of 2016, 

your client has agreed to a $500 a month payment structure modification.” 

Eitani’s attorneys promptly responded: “[N]o agreement to modify your 

obligations with respect to the October 2013 Settlement Agreement was ever 

entered into. Our client never agreed to a $500 a month payment structure—

not in October of 2016 nor at any other time.” “In addition, while the $500 

payments you have been sending recently have been received by our office, 

they have been never cashed [sic] nor ‘applied’ as your email states.”

For the next 18 months, the negotiations continued in this vein: 

Eitani’s attorneys repeatedly demanded signed copies of Simayof’s tax 

returns and verified financial data, while Simayof reiterated that he had 

already provided everything that Eitani’s attorneys had requested. Simayof 

continued to insist that Eitani had agreed to accept $500 per month even 

after Eitani’s attorneys returned Simayof’s uncashed checks to him on 

October 5, 2017. During a face-to-face meeting with one of Eitani’s attorneys

on May 22, 2018, Simayof admitted that he was not able to provide wage 

stubs or other documents verifying the amount of money he had recently 

earned as a “consultant” for Cohen because Cohen had paid him in cash. 

On March 29, 2019, Eitani’s attorneys informed Simayof that they

intended to file another motion to enter judgment on the Simayof stipulation. 

For the next several months, the parties exchanged proposals to resolve their 

dispute. In April 2019, Simayof offered $100,000, paid in monthly 

installments of $8,000, in full settlement of what he owed Eitani. Eitani 

counter-offered that she would accept $350,000 in full settlement of all issues 
9

between the parties or, alternatively, she would accept monthly payments of 

$4,628.57 until the $462,000 was paid in full. The parties were unable to 

reach an agreement.

E. The Trial Court Grants Eitani’s Motion to Enter Judgment

Against Defendants

Eitani filed her third motion seeking to enter judgment against 

defendants on October 11, 2019. In the motion, Eitani painstakingly outlined 

the chronology of the case and described the extensive negotiations between 

Eitani and Simayof regarding modification of Simayof’s payment schedule 

which had occurred since 2017. 

In opposition, Simayof cited the two prior trial court rulings to support 

his contention that Eitani had not acted reasonably in rejecting his request to 

modify the payment schedule. Alternatively, Simayof argued that Eitani had 

agreed to accept $500 per month because the financial data he provided 

proved that $500 was all he could afford.3 Simayof also offered extrinsic

evidence in an attempt to demonstrate that Eitani had made assurances and 

promises to him, which are not contained in the Simayof stipulation.4

3 At oral argument on the motion, Simayof appeared to relinquish the 

argument that Eitani had agreed to modify the payments to $500 per month:

“The Court: There certainly has never been a written modification, 

which is required by these agreements, that would modify the stipulation or 

provide for any different payment provision.

“Cohen: Your Honor, you’re one hundred percent correct.” 

4 For example, Simayof claimed that he had shared his personal 

financial data with Eitani and her attorneys during the 2013 settlement 

negotiations, essentially putting them on notice that his financial condition 

was precarious. He claimed to have discussed with Eitani in 2013 his 

financial projections for a start-up he expected to generate income in the 

future. Simayof also asserted that Eitani and her attorneys had verbally 

represented that Eitani would agree to modify the payment to one he could 
10

The motion was argued on November 22, 2019. The trial court 

indicated that it was familiar with the voluminous record5 and was inclined 

to adopt its tentative ruling to grant the motions. After hearing and 

considering oral argument, the trial court granted the motion to enter 

judgment on each stipulation. The trial court made the following factual 

findings:

“The evidence indicates that Adi Simayof breached the stipulation for 

entry of judgment by failing to make timely payments. Mr. Simayof failed to 

provide Plaintiff with sufficient financial information to warrant a 

modification of the payment plan to $500.00 per month. Evidence further

shows that Mr. Simayof did not properly document all of the funds he was

receiving. Entry of judgment against WOC is appropriate because 

Mr. Sim[a]yof breached the stipulation and WOC agreed to guarantee 

$135,000 in payments . . . WOC’s argument that it never received a notice of 

afford, even though the Simayof stipulation states that Eitani’s duty is 

simply to consider Simayof’s request for a modification.

In her reply, Eitani states that Simayof did not share financial 

information during the 2013 settlement negotiations, nor was she aware from 

any source that Simayof expected to generate income from a start-up 

company. She maintained throughout the litigation that her obligation to 

consider a payment modification arose only if Simayof complied with the 

conditions set forth in the Simayof stipulation.

5 The trial court stated: “I have a mountain of paperwork that you all 

have filed.” When Cohen cited to the rulings on the first and second motions 

for judgment, the court replied: “I read them.” In rendering its oral decision 

granting the motion, the court referenced the “considerable” amount of 

evidence it had reviewed. Defendants’ accusation that the trial court 

“completely ignore[d]” defendants’ evidence and argument is not supported by 

the record. (See also Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183

(Hines) [appellants must affirmatively show that the trial court refused to 

consider their arguments].)
11

default fails. Eitani sent a notice of default to Ms. [Simayof]-Cohen on July 9, 

2015, and February 17, 2017. While the letters are not expressly addressed 

to World of Charms, Inc., Ms. [Simayof]-Cohen is an officer of that entity that 

signed the stipulation and she is also its attorney.” 

Judgment was entered against each defendant on November 22, 2019. 

Defendants filed a timely notice of appeal on December 11, 2019. 

DISCUSSION

I. Standard of Review

A. The Trial Court’s Factual Findings Must Be Affirmed if

 Supported by Substantial Evidence

“If parties to pending litigation stipulate, in a writing signed by the 

parties outside the presence of the court . . . for settlement of the case . . . the 

court, upon motion, may enter judgment pursuant to the terms of the 

settlement. If requested by the parties, the court may retain jurisdiction over 

the parties to enforce the settlement until performance in full of the terms of 

the settlement.” (§ 664.6.) 

Section 664.6 “was enacted to provide a summary procedure for 

specifically enforcing a settlement contract without the need for a new 

lawsuit.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 

809.) A trial judge hearing a motion pursuant to section 664.6 “ ‘may receive 

evidence, determine disputed facts, and enter the terms of a settlement 

agreement as a judgment . . . .’ ” (Osumi v. Sutton (2007) 151 Cal.App.4th

1355, 1360.) “A trial court’s factual findings on a motion to enforce a 

settlement pursuant to 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.) Legal questions, such as the proper 

interpretation of section 664.6, or whether the granting of the motion 

satisfied the strict requirements of the statute, are reviewed de novo. (J.B.B. 
12

Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984; Elnekave 

v. Via Dolce Homeowners Assn. (2006) 142 Cal.App.4th 1193, 1198.)

B. It is Defendants’ Burden to Affirmatively Demonstrate Error

The judgments which are the subject of this appeal are presumed to be 

correct and it is defendants’ burden to affirmatively demonstrate error. 

(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) In their opening brief, 

Simayof and Cohen repeatedly demand that this court make factual 

determinations,6 reweigh the evidence and reassess the credibility of 

witnesses on appeal, functions that are exclusively within the province of the 

trier of fact. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) “ ‘[T]he Court 

of Appeal is not a second trier of fact.” (In re Marriage of Balcof (2006) 141 

Cal.App.4th 1509, 1531.) “We do not retry cases on appeal and we do not 

substitute our discretion for that of the trial court.” (FLIR Systems, Inc. v. 

Parrish (2009) 174 Cal.App.4th 1270, 1276.)

“ ‘The rule is well established that a reviewing court must presume that 

the record contains evidence to support every finding of fact, and an appellant 

who contends that some particular finding is not supported is required to set 

forth in his brief a summary of the material evidence upon that issue.’ ” (In

re Marriage of Fink (1979) 25 Cal.3d 877, 887) “We apply the substantial 

evidence standard to the record as a whole. It has long been established that 

an appellant must present in its brief all material evidence on the issue, not 

just the evidence that supports its position, and failure to so state the 

6 For example, the opening brief states: “Defendant Simayof is 

respectfully asking this court to review the financials that were submitted for 

review of the court under seal . . . . No reasonable person can conclude that 

Defendant Simayof can afford [the payments suggested by Eitani].” Simayof

also argues a mixed issue of fact and law, which was not raised in the trial 

court, namely, whether the Simayof stipulation is void or voidable because 

the parties never had a “meeting of the minds” as to the modification clause.
13

evidence may be deemed a waiver of the substantial evidence challenge.” 

(Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 621.)

Eitani asserts that defendants’ failure to provide an adequate record for 

this court’s review, combined with their failure to accurately describe the 

evidence in the record, should be deemed a waiver of the substantial evidence 

argument. While we agree with Eitani “that [defendants] have ‘shirked’ their 

responsibility to set forth all the evidence, failed to discuss or analyze the 

contradictory evidence in their opening brief, and set forth only their version 

of the evidence,” we nevertheless address the merits of Simayof and Cohens’

arguments below.

II. The Trial Court’s Decision to Enter Judgment Against Simayof is

Consistent with Section 664.6 and is Supported by Substantial

Evidence

A. Simayof’s Failure to Raise the Alleged Invalidity of the Simayof 

Stipulation in Opposition to Eitani’s 2019 Motion to Enter

Judgement Precludes Him from Arguing This Issue on Appeal

Simayof correctly asserts that a settlement agreement is not valid or 

enforceable unless the parties have agreed to all material terms. (Hines,

supra, 167 Cal.App.4th at p. 1182.) “An essential element of any

[enforceable] contract is [mutual] consent.” (Weddington Productions, Inc. v. 

Flick, supra, 60 Cal.App.4th at p. 811; see also Civ. Code, §§ 1580, 1636.) 

Simayof goes on to argue that Eitani and Simayof never reached a meeting of 

the minds on a material term of the settlement agreement, namely, whether 

Simayof is entitled to a modification of the payment plan in the event he 

experiences financial difficulties. Alternatively, he argues that Eitani 

“fraudulently induced” Simayof to sign the Simayof stipulation by verbally 

promising that she would modify the payment plan if Simayof experienced 

financial difficulties even though she had no intention of actually doing so. 

There are several problems with these arguments.
14

First, Simayof did not argue in the trial court that the parties had 

failed to reach a binding agreement in 2013. “It is elementary that questions 

not raised in the trial court will not be considered on appeal. [Citations.] 

Under this well settled rule a party is prohibited from asserting on appeal 

claims to relief not asserted or requested in the court below, and is prohibited 

from asserting matters of defense not there presented.” (Algeri v. Tonini 

(1958) 159 Cal.App.2d 828, 832 [citing line of cases].) 

Second, section 664.6 expressly authorizes the trial court to determine 

whether a settlement has occurred (Skulnick v. Roberts Express, Inc. (1992) 

2 Cal.App.4th 884, 889; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.) This 

court is required to presume that the evidence supports the trial court’s 

finding that the parties had reached a binding agreement. (See, e.g., Hines,

supra, 167 Cal.App.4th at pp. 1182–1183.) If, as Simayof now argues, 

Simayof and Eitani had different understandings of the terms of the 

agreement, which prevented a “meeting of the minds,” the trial court was in 

the best position to hear and decide the disputed factual issues. As discussed 

above, it is not the role of the appellate court to decide disputed factual 

issues.

Third, the record in this case contains ample evidence that Simayof 

considered the Simayof stipulation to be valid and enforceable. Simayof 

partially performed by making three payments of $2,500 in 2015. He also 

successfully asserted Eitani’s duty under the agreement to reasonably 

evaluate his request to modify the payment schedule to defeat Eitani’s first 

two motions to enter judgment pursuant to section 664.6. “ ‘Ordinarily, a 

party cannot accept the benefits of a judgment, in whole or in part, and then 

attack it by appeal. His conduct in taking any of its advantages while 
15

seeking to reverse it is inconsistent, and the result is a waiver of the right.’ ” 

(In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1179.)

For the reasons discussed above, we find that Simayof is precluded 

from arguing on appeal that the Simayof stipulation was not a valid 

agreement that could be entered as a judgment pursuant to section 664.6.

B. The Trial Court’s Decision That Eitani Proved Each of the

Conditions Precedent to Entry of Judgment is Supported by

Substantial Evidence

The parties agreed that judgment would not be entered upon the 

Simayof stipulation unless Simayof failed to make the payments required 

under the agreement, Eitani provided Simayof with a written notice of 

default, and Simayof failed to cure the default within 10 days. The trial court 

found that Eitani had proven each of these prerequisites to entry of 

judgment. The trial court’s findings are amply supported by evidence in the 

record.

The primary point of contention throughout these proceedings is the 

degree to which each party complied with the clause that authorizes Simayof 

to request a modification of the payment schedule based on a verified 

showing of financial difficulties. On appeal, Simayof contests the trial court’s 

findings that Simayof failed to support his request to modify the payment 

schedule with “verified financial data,” and that Eitani acted reasonably and 

in good faith in considering and denying Simayof’s request for modification. 

We find that the trial court’s factual findings on each point are supported by 

substantial evidence.

As an initial matter, the trial court properly rejected Simayof’s 

interpretation of the Simayof stipulation as requiring Eitani to reduce the 

payment schedule at Simayof’s request if he claimed to be suffering from 

financial difficulties. “The court generally may not consider extrinsic 
16

evidence of any prior agreement or contemporaneous oral agreement to vary 

or contradict the clear and unambiguous terms of a written, integrated 

contract.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th

1107, 1125–1126.) Here, Simayof’s self-serving declaration was contrary to 

the clear and unambiguous terms of the Simayof stipulation, which required 

Eitani to consider modification of the payment schedule annually only if 

Simayof had submitted verified proof of financial difficulties prior to 

September 1 in any calendar year.

The evidence established that between July 2015 and October 2019, 

Simayof repeatedly requested to defer payments or reduce payments due to 

unspecified financial difficulties. Despite explicit and repeated demands, 

Simayof refused to produce “verified” financial data, that is, a financial 

statement and/or financial documents accompanied by an affidavit in which 

Simayof declared under penalty of perjury that the information was true and 

correct. It is true, as Simayof argued in the trial court and again on appeal, 

that over time he eventually produced copies of bank records, signed and 

unsigned tax records, and other types of financial data. The trial court 

correctly found that simply producing some financial data did not comply 

with the term of the Simayof stipulation, which required Simayof to make “a 

verified showing of Simayof’s financial difficulties” in support of any request 

to modify the payment schedule.

The trial court’s finding that Eitani acted reasonably in rejecting 

Simayof’s demand to reduce payments is also supported by substantial 

evidence. Following the denial of Eitani’s second motion to enter judgment, 

Eitani’s attorneys understood that the trial court had set a “high bar,” which 

required Eitani to negotiate Simayof’s request for a modification of the 

payment schedule in good faith. The evidence demonstrated that between 
17

2017 and 2019, the parties exhaustively negotiated whether the payment 

plan should be modified and if so, on what terms. This evidence supported 

the trial court’s determination that Eitani had reasonably exercised her 

discretion to consider, and ultimately deny, Simayof’s request.

III. The Trial Court’s Decision to Enter Judgment Against the WOC

 Defendants is Consistent with Section 664.6 and is Supported

by Substantial Evidence

A. The Trial Court Properly Determined That the WOC

Defendants and Eitani Entered into a Written Settlement

Agreement Which is Enforceable as a Judgment

Cohen represented herself and her brother Simayof throughout this 

litigation. She argues that the stipulation she negotiated with Eitani on 

behalf of the WOC defendants, unlike the Simayof stipulation, was never 

intended to be entered as a judgment. 

On its face, section 664.6 requires only that “parties to pending 

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

the court . . . for settlement of the case . . . .” (§ 664.6, subd. (a).) The statute 

does not require the parties to reference entry of judgment in order for their 

settlement to be enforceable as a judgment. (See, e.g., Hines, supra, 167 

Cal.App.4th at p. 1177; In re Marriage of Hasso, supra, 229 Cal.App.3d at 

pp. 1180–1185.) It is essential, however, that when a settlement calls for 

dismissal of an action, or when a case is actually dismissed, prior to 

dismissal, the parties ask the court to retain jurisdiction until such time as 

all of the terms of the settlement have been performed by the parties. (Sayta 

v. Chu (2017) 17 Cal.App.5th 960, 966.) The stipulation in this case expressly 

asks the court to retain jurisdiction until all terms have been performed, 

bringing the stipulation squarely within section 664.6. 
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B. The Trial Court’s Determination That the WOC Defendants’

Duty to Pay Was Triggered by Simayof’s Default is Supported

by Substantial Evidence

Cohen asserts that the trial court’s findings in 2016 and 2017 that 

“Simayof was not in default” are evidence that the trial court should have 

relied upon in 2019 to find that the WOC defendants’ duty to pay Eitani had 

not yet arisen. Cohen misconstrues the trial court’s 2016 and 2017 findings, 

both of which focused on whether Eitani had established a condition 

precedent to entry of judgment and never reached the question of whether 

Simayof was in default.

In contrast, when squarely presented with the issue on November 22, 

2019, the trial court found that Simayof’s failure to make the required 

payments, in the absence of an agreed-upon written modification of the 

payment schedule, was a breach which triggered the WOC defendants’ duty 

to pay Eitani $135,000. As discussed above, the trial court’s finding that 

Simayof breached the Simayof stipulation is supported by substantial 

evidence. So, too, are the trial court’s findings that Cohen, as WOC’s agent,

was provided with written notice of Simayof’s default and failed to timely 

cure the default. As Eitani points out, it is Simayof’s failure to make the

payments required by the Simayof stipulation that triggers the WOC 

defendants’ duty to pay rather than, as Cohen asserts, a court determining 

that Simayof is in default.7

Cohen further argues that in the event that judgment is entered 

against the WOC defendants, they are entitled to set-offs against the 

7 To interpret either stipulation as requiring a contested evidentiary 

hearing on whether Simayof was in default would undermine the summary 

nature of entering judgment pursuant to section 664.6. (See, e.g., Machado v. 

Myers, supra, 39 Cal.App.5th at p. 790 [statutory procedure for enforcing 

settlement agreements is an “expeditious” alternative].)
19

$135,000 guarantee. First, Cohen argues that the trial court erred by 

entering judgment for $135,000 because the WOC defendants are entitled to 

a $7,500 set off for the three payments Simayof made to Eitani in 2015.

Cohen’s second argument is that Eitani breached the stipulation when she 

refused to accept Simayof’s offer of an emerald ring in lieu of the $2,500 

payment required on July 4, 2015, and returned the $500 payments that

Simayof had tendered because the WOC defendants would have been entitled 

to offset such payments against the $135,000 guarantee. Neither contention 

is meritorious.

The stipulation provides that the WOC defendants will personally 

guarantee Simayof’s payment to Eitani in the amount of $135,000. “Such 

guarantee shall remain in effect until Plaintiff receives $200,000 from the 

[Simayof] Defendants.” “[I]n the event of any default on the payments by 

SIMAYOF, not cured within ten (10) days after written notice to WOC, WOC 

shall be obligated to pay Plaintiff $135,000.00, less credits for payments 

made.” 

Eitani interprets the stipulation as allowing the WOC defendants to 

offset any payments Cohen or WOC made to Eitani, not those made by 

Simayof. According to Eitani, allowing the WOC defendants to offset 

payments made by Simayof contradicts the language that said defendants

remain obligated to pay $135,000 until Simayof has paid Eitani at least 

$200,000: The trial court agreed with Eitani’s interpretation of the 

stipulation, as do we.

“ ‘ “If interpretation of a stipulation is in order, the rules applied are 

those applied to the interpretation of contracts.” ’ ” (Machado v. Myers, 

supra, 39 Cal.App.5th at p. 792.) Under statutory rules of contract 

interpretation, the mutual intent of the parties must be inferred, if possible, 
20

solely from the written terms of the contract. (Civ. Code, § 1639; AIU Ins. Co. 

v. Superior Court (1990) 51 Cal.3d 807, 821–822.) “We consider the contract 

as a whole and interpret the language in context, rather than interpret a 

provision in isolation.” (American Alternative Ins. Corp. v. Superior Court 

(2006) 135 Cal.App.4th 1239, 1245.) “Contractual language is ambiguous if it 

is susceptible of more than one reasonable interpretation in the context of the 

[contract] as a whole.” (Ibid.) “Whether contractual language is ambiguous 

is a question of law that we review de novo.” (Ibid.) In cases of uncertainty,

which are not resolved by application of the preceding rules, the ambiguous 

language should be interpreted most strongly against the party which caused 

the uncertainty to exist. (Civ. Code, § 1654; Sandquist v. Lebo Automotive, 

Inc. (2016) 1 Cal.5th 233, 248.)

While the stipulation is arguably ambiguous in failing to specify

whether the WOC defendants are entitled to credits for payments they have

made, Simayof has made, or both, the ambiguity is easily resolved by reading 

this clause in the context of the stipulation as a whole. The parties agreed 

that the WOC defendants would guarantee payment of $135,000 to Eitani 

until such time as Eitani received $200,000 or more from the Simayof 

defendants. The trial court found that Simayof had paid Eitani only $7,500 

in six years. To allow the WOC defendants credits of $7,500 would render 

the requirement that the guarantee for $135,000 remain in effect until Eitani 

receive $200,000 a nullity. For this reason, Cohen’s claim of entitlement to a 

$7,500 setoff against the judgment is rejected.

We also reject Cohen’s argument that Eitani breached the stipulation 

by refusing to accept an emerald ring from Simayof in lieu of monetary 

payments or by returning the $500 payments Simayof tendered while the 

parties negotiated a possible modification of the payment schedule. The 
21

stipulation provides that the WOC defendants’ duty to personally guarantee 

$135,000 arose in July 2015, when WOC received the initial written notice of 

Simayof’s default. We agree with Cohen’s implicit argument that the WOC 

defendants stood to benefit if Eitani had agreed to modify the payment 

schedule by accepting the ring or reduced payments because, at that 

juncture, Simayof would not have been in default. However, the evidence 

clearly established that Eitani and Simayof never entered into a written 

agreement to modify Simayof’s payment schedule. Accordingly, the WOC 

defendants are not entitled to the benefit of payments, which Simayof 

tendered, but Eitani was under no duty to receive.

DISPOSITION

The judgments are affirmed. Eitani shall recover costs on appeal.
22

_________________________

Mayfield, J.*

We concur:

_________________________

Richman, Acting P.J.

_________________________

Miller, J.

Eitani v. Simayof et al. (A159547)

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.