Judge Michael P. Linfield, Case Number: BC453138, Date: 2023-08-14 Tentative Ruling

More than thirteen years ago, on January 18, 2011, Plaintiff Kavoos Rostami filed his Complaint against Defendant John Andrade on causes of action of book account, goods sold and delivered, and account stated.

On August 15, 2011, the Court entered Judgment in favor of Plaintiff and against Defendant in the total amount of $89,304.44.

On March 15, 2021, Plaintiff (now “Judgment Creditor”) filed Judicial Council Form EJ-190, Application for and Renewal of Judgment.

On February 20, 2024, Defendant (now “Judgment Debtor”) filed his Motion to Compel Full Satisfaction of Judgment (“Motion”). In support of his Motion, Judgment Debtor concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of John Andrade; (3) Declaration of Nataly de la Bastida; (4) Declaration of James A. Blanco; (5) Declaration of David Focil; and (6) Compendium of Evidence.

On March 6, 2024, Judgment Creditor filed his Opposition to the Motion. In support of his Opposition, Judgment Creditor concurrently filed: (1) Exhibit List; (2) Declaration of Kavoos Rostami; (3) Beth Chrisman; (4) Declaration of Timothy Krantz; (5) Request for Judicial Notice; (6) Evidentiary Objections; and (7) Proof of Service.

On March 15, 2024, Judgment Debtor filed his Reply in support of his Motion. Judgment Debtor concurrently filed: (1) Reply Declaration of David Focil; (2) Declaration of Edwin Gavilanez; and (3) Evidentiary Objections.

Judgment Creditor filed evidentiary objections to portions of the declaration of Nataly de la Bastida. The following are the Court’s rulings on these objections.

Objection
1	SUSTAINED
2	SUSTAINED
3		OVERRULED
4		OVERRULED
5		OVERRULED

Judgment Creditor also filed an objection to Judgment Debtor’s Reply on the basis that it was filed late. The Court agrees that the Reply was filed late, but the Court has considered it anyway.

Judgment Debtor filed an evidentiary objection to a portion of Judgment Creditor’s evidence. The following is the Court’s ruling on this objection.

Objection
1		OVERRULED

(3) A Special Warranty Deed recorded on January 25, 2021 in the Public Records of Miami-Dad County.

The Court DENIES as superfluous judicial notice of the first two items. Any party that wishes to draw the Court’s attention to an item filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

“A money judgment may be satisfied by payment of the full amount required to satisfy the judgment or by acceptance by the judgment creditor of a lesser sum in full satisfaction of the judgment.” (Code Civ. Proc., § 724.010, subd. (a).)

“Where a money judgment is satisfied by payment to the judgment creditor by check or other form of noncash payment that is to be honored upon presentation by the judgment creditor for payment, the obligation of the judgment creditor to give or file an acknowledgment of satisfaction of judgment arises only when the check or other form of noncash payment has actually been honored upon presentation for payment.” (Code Civ. Proc., § 724.010, subd. (c).)

“When a money judgment is satisfied, the judgment creditor immediately shall file with the court an acknowledgment of satisfaction of judgment. This section does not apply where the judgment is satisfied in full pursuant to a writ.” (Code Civ. Proc., § 724.030.)

“If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a lien on personal property subject to a judgment lien created under the judgment may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following:

“(2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.”

“If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.” (Code Civ. Proc., § 724.050, subd. (c).)

“If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.” (Code Civ. Proc., § 724.050, subd. (d).)

“If the judgment has been satisfied and the judgment creditor fails without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person. Liability under this subdivision may be determined in the proceedings on the motion pursuant to subdivision (d) or in an action.” (Code Civ. Proc., § 724.050, subd. (e).)

“In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney’s fees to the prevailing party.” (Code Civ. Proc., § 724.080.)

“The damages recoverable pursuant to this chapter are not in derogation of any other damages or penalties to which an aggrieved person may be entitled by law.” (Code Civ. Proc., § 724.090.)

Judgment Debtor moves the Court to: (1) order Judgment Creditor to execute and record a satisfaction of judgment and transmit a copy of the same to Judgment Debtor; (2) award Judgment Debtor $100.00 pursuant to Code of Civil Procedure section 724.050, subdivision (e); and (3) award Judgment Debtor attorney’s fees and costs of $16,725.00 pursuant to Civil Code section 724.080. (Memorandum, p. 12:2–6.)

Judgment Debtor argues: (1) that Judgment Creditor breached the express terms of a valid verbal and written agreement between the Parties; (2) that, alternatively, the Parties’ conduct created an implied contract obligating Judgment Creditor to acknowledge a full satisfaction of judgment; (3) that Judgment Creditor’s nearly decade-long post-judgment conduct strongly supports Judgment Debtor’s claims; and (4) that Judgment Debtor is entitled to attorney’s fees. (Memorandum, pp. 7:2–3, 8:21–23, 11:1–2, 11:17.)

Judgment Creditor disagrees, arguing that, for a variety of reasons, Judgment Debtor has not met his burden of proof. (Opposition, p. 4:6.)

In his Reply, Judgment Debtor argues: (1) that Judgment Creditor’s sworn testimony contains omissions that critically undermine his contentions; (2) that the Opposition mischaracterizes the evidentiary record; and (3) that Judgment Debtor has met his burden of proof. (Reply, pp. 2:20–21, 4:1–2, 5:13.)

B. Whether the Parties have an Oral Post-Judgment Agreement from 2012 and/or a Written Post-Judgment Agreement Dated January 13, 2013

“An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled.” (Civ. Code, § 1521.)

“Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed.” (Civ. Code, § 1522.)

“Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction.” (Civ. Code, § 1523.)

“A court may order entry of satisfaction of judgment whenever a judgment is satisfied in fact.” (George S. Nolte Consulting Civil Eng’rs, Inc. v. Magliocco (1979) 93 Cal.App.3d 190, 193 [citations omitted].)

“Although section 724.050 does not expressly state satisfaction of the judgment must be shown ‘in fact’ we conclude a reasonable reading of the section requires the trial court find actual satisfaction of the judgment.” (Pierson v. Honda (1987) 194 Cal.App.3d 1411, 1414, n. 4.)

“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.)

“In a civil case the party with the burden of proof must convince the trier of fact that its version of a fact is more likely than not the true version. Stated another way, it requires the burdened party ‘to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence--a degree of proof usually described as proof by a preponderance of the evidence.’” (Beck Dev. Co. v. S. Pac. Transp. Co. (1996) 44 Cal.App.4th 1160, 1205, quoting Cal. Law Revision Com. com., 29B pt. 1 West’s Ann. Evid. Code (1995) § 500, p. 553.)

Judgment Debtor claims that the Parties had a written post-judgment agreement, signed January 13, 2013 by Judgment Creditor. (Compendium Evidence, Exh. 1.) The purported agreement states the following:

“As of January 1^st 2013 Besttrade Flower has come to an agreement to pay the amount of $25,000 to K.R. Floral, Inc., in the form of cash and/or flowers. K.R. Floral, Inc. will receive a shipment on a weekly basis of:

“This product will arrive in Los Angeles on an agreed price between both parties, before shipment is made. All products will be in good quality, if there are any claims it will be made within 24 hours of arrival. This agreement will remain until balance is paid in full.

According to Judgment Debtor: (1) sometime in late 2012, he approached Judgment Creditor at Judgment Creditor’s flower shop with the intent of settling the Judgment; (2) at this time, the Parties came to an agreement where Judgment Debtor would send Judgment Creditor approximately $25,000 worth of roses (based on wholesale prices) over the course of 2013 in exchange for full satisfaction of the Judgment, with no monetary payments to be made to Judgment Debtor for the rose shipments; (3) on or around January 5, 2013, Judgment Debtor sent the first trial run shipment of roses, which Judgment Creditor accepted; (4) Judgment Creditor drafted a written version of the Parties’ oral agreement; (5) on January 13, 2013, Judgment Debtor returned to Judgment Creditor’s store, was shown the written agreement by Judgment Creditor, saw Judgment Creditor sign the written agreement, confirmed that it was an accurate reflection of their prior oral agreement, and left the store with the original copy of the written agreement; and (6) Judgment Debtor continued shipping flowers to Judgment Creditor through 2013, which were never refused and ended up at approximately $25,000.00 worth of flowers. (Decl. Andrade, ¶¶ 7–17.)

Judgment Debtor submits additional evidence in support of his claims. (While the Court has considered all of the evidence, only the most relevant and probative evidence is discussed below.)

Nataly de la Bastida (Judgment Debtor’s Office Manager) claims she communicated regularly with Judgment Creditor via phone calls and emails throughout 2013. (Decl. de la Bastida, ¶¶ 3, 9.)

James A. Blanco (Judgment Debtor’s Forensic Document Examiner) contends that the signature on the purported written agreement is consistent with the handwriting of Judgment Creditor. (Decl. Blanco, ¶¶ 2, 4–7 and Exh. A.)

Judgment Debtor provides copies of the invoices sent to Judgment Creditor throughout 2013, as well as copies of the related airway bills of lading for these flower shipments. (Compendium of Evidence, Exhs. 2–3.)

Edwin Gavilanez is the General Manager of Champion Air Cargo del Ecuador, the company Judgment Debtor allegedly used for certain transports of flowers. Edwin Gavilanez declares that his company coordinated with Judgment Creditor’s company and made flower shipments in January, March, and July 2013. (Decl. Gavilanez, ¶¶ 3, 7.) Notably, the Declaration of Edwin Gavilanez was concurrently filed with the Reply.

Judgment Creditor disputes that he agreed to the purported oral and written agreements claimed by Judgment Debtor. According to Judgment Creditor: (1) Judgment Creditor had a random meeting with Judgment Debtor in approximately March 2013, which happened when Judgment Creditor saw Judgment Debtor outside a coffee shop near other stores where Judgment Creditor was collecting money owed to him from other customers; (2) Judgment Creditor approached Judgment Debtor, sat with him in the coffee shop, and told him that he needed to pay the Judgment; (3) Judgment Debtor asked if Judgment Creditor would consider taking flowers as full payment on the Judgment, but Judgment Creditor rejected this offer; (4) Judgment Creditor then offered to accept half the Judgment value in roses and half the Judgment value in cash or check, which Judgment Debtor accepted; (5) Judgment Creditor received the first batch of roses after this discussion in the first week of April 2013; (6) Judgment Creditor continued to receive roses until the end of 2013; (7) Judgment Creditor never spoke to Nataly de la Bastida and does not recall receiving any emails from her; (8) Judgment Debtor never came to Judgment Creditor’s shop on January 13, 2013; and (9) Judgment Creditor did not write the purported written agreement dated January 13, 2013, did not sign it, and did not see it until 2023 (when his attorney showed it to him). (Decl. Rostami, ¶¶ 4–7.)

Judgment Creditor submits additional evidence in support of his claims. Among the other evidence presented, Beth Chrisman (Judgment Creditor’s Certified Questioned Document Examiner) concludes that Judgment Creditor did not sign the purported written agreement dated January 13, 2013. (Decl. Chrisman, ¶¶ 1, 3–5 and Exh. A.)

As stated above, the Court has considered all of the evidence submitted. There are inconsistencies with the evidence submitted by both Parties.

There are multiple inconsistencies or lacunae with the claims of Judgment Debtor and his declarants.

Nataly de la Bastida claims that she spoke with Judgment Creditor multiple times over the phone and by email.

But there is no documentary evidence that supports these claims. Despite a lengthy amount of time for discovery, no phone records or email chains have been provided to the Court to corroborate Ms. de la Bastida’s claim.

The lack of documentary evidence on this claim, coupled with a lack of explanation for why corroborating phone records and emails were not also provided diminishes Nataly de la Bastida’s credibility.

James Blanco’s opinion is that “[g]iven all of the observed similarities, the handwriting features observed in the Exhibit 3 questioned signature are consistent with and do represent the natural, normal and genuine handwriting characteristics of [Judgment Creditor] as demonstrated by his Exhibit 4 known specimen signatures. Consequently, [Judgment Creditor] likely wrote the Exhibit 3 questioned “K. Rostami” signature.”

However, James Blanco’s report is, at best, incomplete. Specifically, James Blanco focuses heavily on the “similarities” of the signatures but does not consider the “differences” of the signatures. Rather, the only discussion of “differences” comes in general discussions about how signatures have “writing variations,” not how the signature at issue is different from the other samples of Judgment Creditor’s signature.

The lack of discussion of these differences — many of which appear obvious to the Court’s untrained eye — diminishes the credibility of James Blanco and his opinion in this matter.

Judgment Debtor claims that the first batch of roses was sent to Judgment Creditor on or around January 5, 2013. In support of this claim, Judgment Debtor includes an invoice dated January 4, 2013 that indicates such a shipment did occur.

However, in contrast to the later invoices, there is no accompanying airway bill of lading (which start as of April 3, 2013). (Id. at Exh. 3, p. 10 [actual page 36 of 98].)

Judgment Debtor attempts to paper this gap by providing the Declaration of Edwin Gavilanez, which claims another shipping company (Champion Air Cargo del Ecuador Cia. Ltda.) coordinated with Judgment Creditor and made shipments in January, March, and July 2013. (Decl. Gavilanez, ¶ 7.)

First, the general rule of motion practice is that “new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) The Court does not accept the Declaration of Edwin Gavilanez, which clearly should have been filed with the motion. (Id. at p. 1538 [“Thus, while the trial court had discretion to admit the reply declarations, it was not an abuse of discretion to decline to do so.”].)

Second, even if the Court did accept the Declaration of Edwin Gavilanez, similar issues arise. The Declaration of Edwin Gavilanez does not include phone records or emails that would support his claim of coordinating shipments with Judgment Creditor, and it does not include an airway bill of lading or other documentary evidence that supports his claims regarding shipments in January, March, and July 2013. The lack of such evidence diminishes the credibility of Edwin Gavilanez.

Among other things, Judgment Debtor claims: (1) that he made an oral agreement (and, subsequently, a written agreement) with Judgment Creditor to exchange $25,000.00 worth of roses (based on wholesale prices) over the course of 2013 in exchange for full satisfaction of the Judgment; and (2) that his office provided Judgment Creditor with copies of all shipment invoices and airway bills of lading via email. (Decl. Andrade, ¶¶ 7–9, 14.)

First, Judgment Debtor provides the Court with certain invoices and airway bills of lading. However, Judgment Debtor does not provide the Court with the emails or other documentary evidence that would indicate Judgment Creditor was actually sent these invoices and airway bills of lading. Again, given the recent period of post-judgment discovery, the lack of documentary evidence to support that Judgment Creditor was actually emailed these invoices and airway bills of lading through 2013 diminishes Judgment Debtor’s credibility.

Second, Judgment Debtor’s claims are called into question because of issues with the purported written agreement.

The authenticity of the purported written agreement is in question. Judgment Creditor claims that he did not write this document, sign it, or see it until last year. The Parties submit dueling opinions by handwriting experts. The Court has already discussed how the credibility of James Blanco and his opinion is greatly diminished because he did not discuss the differences between this signature and other signatures by Judgment Creditor. In contrast, the Court finds the Declaration of Beth Chrisman and her opinion to be highly credible. (Decl. Chrisman, ¶ 5 and Exh. A.) This is because this expert’s report discusses in specific detail both the similarities and the differences between this signature and other signatures by Judgment Creditor. (Id. at Exh. A, pp. 2–3.)

Judgment Creditor’s handwriting expert determined that Judgment Debtor “did not sign the questioned agreement.” (Decl. Chrisman, Exh. A, p. 1.) The Court found her opinion to be highly credible. Judgment Debtor’s handwriting expert determined that Judgment Creditor “likely wrote” the signature on the agreement. (Decl. Blanco, Exh. A, p. 3.) As stated above, the Court found this opinion to be greatly diminished in credibility. Furthermore, it is noteworthy to the Court that the heading on the purported written agreement does not match any other documents created by Judgment Creditor — including the heading on the original Statement upon which this matter began. (See Complaint, Exh. 1.)

After considering all of the evidence on this point, the Court finds by a preponderance of the evidence that Judgment Creditor did not sign the purported written agreement.

Judgment Debtor claims that he saw Judgment Creditor sign this document. The Court finds Judgement Debtor’s claim is not credible.

There are minor issues with the claims of Judgment Creditor. These primarily arise from issues that Judgment Creditor either did not address or was vague about.

The first concern involves Judgment Creditor’s post-2013 delay in further seeking to enforce or renew the Judgment. Specifically, the Court has not been made aware of why Judgment Creditor waited seven or eight years after receiving a partial payment from Judgment Debtor before taking any efforts to enforce or renew the Judgment. While there is not anything inherently wrong with this behavior, it seems odd when the evidence at hand indicates that he was relatively active in seeking the Judgment.

The second inconsistency involves the invoices from April 2013 to December 2013. Judgment Creditor declares that he “never agreed to accept $25,000 worth of roses as full payment on the Judgment nor did I prepare or sign the 1/13/2013 letter.” (Decl. Rostami, ¶ 8.) But Judgment Creditor does not definitively state whether he did or did not receive the invoices, whether by email or along with the flower shipments. Not agreeing to accept this payment is different from not receiving a potential accord via invoices. Judgment Creditor’s lack of candor on this issue slightly diminishes his credibility.

Overall, these issues were relatively minor. The Court finds Judgment Creditor’s testimony to be of somewhat credibile.

“In a civil case the party with the burden of proof must convince the trier of fact that its version of a fact is more likely than not the true version. Stated another way, it requires the burdened party ‘to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence--a degree of proof usually described as proof by a preponderance of the evidence.’” (Beck Dev. Co., supra, 44 Cal.App.4th at p. 1205, quotation omitted.)

Here, Judgment Debtor claims that the Parties entered into an oral agreement in late 2012. Judgment Debtor further claims that the Parties entered into a written agreement on January 13, 2013. Judgment debtor has the burden of proof as to these claims. (Evid. Code, § 500; Beck Dev. Co., supra, 44 Cal.App.4th at p. 1205.)

For the reasons discussed above, Judgment Creditor’s testimony is of moderate credibility, and Judgment Creditor’s expert’s opinion is highly credible. In contrast, for the reasons discussed above, the evidence adduced by Judgment Debtor is not particularly credible.

Upon considering all of the evidence submitted in this matter, the Court determines that Judgment Debtor does not meet his burden to show that there was an oral agreement and/or a written agreement.

The Court finds that the Parties did not enter into either of these purported agreements. Therefore, there cannot be satisfaction based on either of these mere allegations.

C. Whether the Parties have an Accord or an Implied-in-Fact Contract Based on the Invoices

“Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation.” (Civ. Code, § 1524.)

“It is the public policy of this State, in the best interests of the taxpayer and of the litigant, to encourage fair dealing and to promote justice by reducing litigated matters to the lowest level of jurisdiction. In case of a dispute over total money due on a contract and it is conceded by the parties that part of the money is due, the debtor may pay, without condition, the amount conceded to be due, leaving to the other party all remedies to which he might otherwise be entitled as to any balance claimed. If any conditions are attached to the payment, this section shall not be deemed to have limited the remedies available to the other party under other provisions of law on the original amount claimed.” (Civ. Code, § 1525.)

“Where a claim is disputed or unliquidated and a check or draft is tendered by the debtor in settlement thereof in full discharge of the claim, and the words ‘payment in full’ or other words of similar meaning are notated on the check or draft, the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests against accepting the tender in full payment by striking out or otherwise deleting that notation or if the acceptance of the check or draft was inadvertent or without knowledge of the notation.” (Civ. Code, § 1526, subd. (a).)

“Notwithstanding subdivision (a), the acceptance of a check or draft constitutes an accord and satisfaction if a check or draft is tendered pursuant to a composition or extension agreement between a debtor and its creditors, and pursuant to that composition or extension agreement, all creditors of the same class are accorded similar treatment, and the creditor receives the check or draft with knowledge of the restriction. A creditor shall be conclusively presumed to have knowledge of the restriction if a creditor either:

“(1) Has, previous to the receipt of the check or draft, executed a written consent to the composition or extension agreement.

“(2) Has been given, not less than 15 days nor more than 90 days prior to receipt of the check or draft, notice, in writing, that a check or draft will be tendered with a restrictive endorsement and that acceptance and cashing of the check or draft will constitute an accord and satisfaction.”

“Notwithstanding subdivision (a), the acceptance of a check or draft by a creditor constitutes an accord and satisfaction when the check or draft is issued pursuant to or in conjunction with a release of a claim.” (Civ. Code, § 1526, subd. (c).)

For the purposes of paragraph (2) of subdivision (b), mailing the notice by first-class mail, postage prepaid, addressed to the address shown for the creditor on the debtor’s books or such other address as the creditor may designate in writing constitutes notice.” (Civ. Code, § 1526, subd. (d).)

The question remains: did the invoices create an accord (or an implied-in-fact contract) which could have then been satisfied by shipment of approximately $25,000.00 worth of roses?

The Court found above that there was no written agreement between the Parties. Thus, it is not possible for there to have been an accord and satisfaction pursuant to Civil Code section 1524, which requires a written agreement.

b. Judgment Creditor did not have Knowledge of the Note (and thus of the Proposed Accord)

Judgment Debtor claims that his office “provided [Judgment Creditor with copies of all shipment invoices and Airway Bill of Ladings (‘AWB’) via email.” (Decl. Andrade, ¶ 14.) However, as previously discussed, the Court has not been presented with any of these emails.

Judgment Creditor declares that he “never agreed to accept $25,000 worth of roses as full payment on the Judgment”. (Decl. Rostami, ¶ 8.)

Upon reviewing all of the evidence, the Court does not find by a preponderance of the evidence that Judgment Creditor was actually sent and/or actually received these invoices.

Civil Code section 1526 is not clear as to whether: (1) the judgment debtor retains the burden to demonstrate that the judgment creditor had knowledge of the proposed accord; or (2) the defense of lack of knowledge is a subsequent burden that shifts to the judgment creditor.

The Court need not and does not resolve this question of law at this time. In this situation, it does not matter who had the burden of proof. Without any evidence that these invoices were sent and received, and with evidence that Judgment Creditor did not agree to an accord, the Court determines that no accord and satisfaction occurred because Judgment Creditor did not have knowledge of the note placed on the invoices. (Civ. Code, § 1526, subd. (a).)

Civil Code section 1526 discusses “a check or draft” that is tendered by a judgment debtor for settlement in full discharge of the claim. However, the terms “check” and “draft” are not defined in the associated parts of the Civil Code.

“The rules which govern the interpretation of contracts are prescribed by Part II of this Division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted.” (Civ. Code, § 1429.)

“‘Check’ means (1) a draft, other than a documentary draft, payable on demand and drawn on a bank, (2) a cashier’s check or teller’s check, or (3) a demand draft. An instrument may be a check even though it is described on its face by another term, such as ‘money order.’” (Com. Code, § 3104, subd. (f).)

“‘Demand draft’ means a writing not signed by a customer that is created by a third party under the purported authority of the customer for the purpose of charging the customer’s account with a bank. A demand draft shall contain the customer’s account number and may contain any or all of the following:

“A demand draft shall not include a check purportedly drawn by and bearing the signature of a fiduciary, as defined in paragraph (1) of subdivision (a) of Section 3307.”

“‘Instrument’ means a negotiable instrument.” (Com. Code, § 3104, subd. (b).)

“An instrument is a ‘note’ if it is a promise and is a ‘draft’ if it is an order. If an instrument falls within the definition of both ‘note’ and ‘draft,’ a person entitled to enforce the instrument may treat it as either.” (Com. Code, § 3104, subd. (e).)

“Except as provided in subdivisions (c) and (d), ‘negotiable instrument’ means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it is all of the following:

“(1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder.

“(3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor, (iv) a term that specifies the law that governs the promise or order, or (v) an undertaking to resolve in a specified forum a dispute concerning the promise or order.”

“An order that meets all of the requirements of subdivision (a), except paragraph (1), and otherwise falls within the definition of “check” in subdivision (f) is a negotiable instrument and a check.” (Com. Code, § 3104, subd. (c).)

Upon considering the related definitions for “check” and “draft” pursuant to Civil Code section 1429 and Commercial Code section 3104, it is obvious that there was no “check or draft” issued in this matter by Judgment Debtor. The invoices and airway bills of lading produced by Judgment Debtor were not checks or drafts as those terms are defined. They cannot be taken to a bank, drawn upon, or require payment on demand. Rather, they are merely receipts and acknowledgements of produced shipped. Thus, any notations on these invoices are irrelevant for the purposes of an accord and satisfaction pursuant to Civil Code section 1526.

Therefore, even if the Court had found that Judgment Debtor sent these invoices to Judgment Creditor and that Judgment Creditor received them, it would still be irrelevant because they cannot support a finding that an accord and satisfaction occurred.

“An express contract is one, the terms of which are stated in words.” (Civ. Code, § 1620.)

“An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.)

“An implied-in-fact contract is based on the conduct of the parties. (Civ. Code, § 1621.) Like an express contract, an implied-in-fact contract requires an ascertained agreement of the parties.” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, citations omitted.)

Here, the evidence submitted to the Court does not indicate that there was an implied-in-fact contract between the Parties. As stated above, the evidence does not support a finding that Judgment Creditor received the invoices (and thus the note that they included). Furthermore, even if Judgment Creditor had received the invoices and read the note on them, Judgment Debtor has not met his burden to prove that there was an implied-in-fact contract. Given that the Court has not found that there was an oral agreement or a written agreement for an amount less than the Judgment amount, it is reasonable to read the note (which states in full: “According with the conversation that we had in person, I am sending flowers as a debt payment to pending of a total usd 25.000, agreed”) as being a partial non-cash payment toward the existing Judgment amount rather than making an implied-in-fact contract. (Compendium of Evidence, Exh. 2, pp. 2–20, sic.)

The Court has found that there was no oral agreement, no written agreement, and no subsequent accord based on the invoices.

The evidence before the Court does not suggest that the Judgment amount has been completely satisfied.

Judgment Creditor’s years-long delay in seeking further enforcement and subsequent renewal of the Judgment is irrelevant to whether the Judgment amount has been completely satisfied.

The Court DENIES Judgment Debtor’s Motion to Compel Full Satisfaction of Judgment.

Given that Judgment Debtor has not satisfied the Judgment and the Motion to Compel Full Satisfaction of Judgment has been denied, attorney’s fees are not appropriate here.