RSL FUNDING, LLC, Plaintiff and Respondent, v. FELICIA ALFORD, Defendant and Respondent; STATE FARM FIRE AND CASUALTY COMPANY et al., Objectors and Appellants.
No. E060421
Fourth Dist., Div. Two.
Aug. 18, 2015.
A petition for a rehearing was denied September 10, 2015
239 Cal.App.4th 741
McKINSTER, Acting P. J.; King, J., and Codrington, J., concurred.
COUNSEL
Law Offices of Amir M. Kahana, Amir M. Kahana; The Feldman Law Firm and E. John Gorman for Plaintiff and Respondent.
Felicia Alford, in pro. per., for Defendant and Respondent.
OPINION
McKINSTER, Acting P. J.—
INTRODUCTION
Objectors and appellants State Farm Fire and Casualty Company (State Farm Fire) and State Farm Life Insurance Company (State Farm Life) (collectively, State Farm) appeal from the trial court’s approval of an order directing the transfer of structured settlement payments to plaintiff and respondent RSL Funding, LLC (RSL).
FACTS AND PROCEDURAL BACKGROUND
In 1994, defendant Felicia Alford, then a minor, by her guardians, settled a personal injury claim against certain insureds of defendant State Farm Fire.
In July 2012, Alford entered into a contract with RSL under which she received $30,000 in exchange for a $50,000 portion of the payment due on August 11, 2016. RSL assigned its paymеnt to Extended Holdings, Ltd. (EHL). The trial court approved the transfer, and State Farm did not contest the transfer. Thus, under the 2012 order, State Farm was required to deliver a $50,000 portion of the August 11, 2016, payment to EHL.
On July 12, 2013, Alford entered into a second contrаct with RSL in which Alford agreed to assign to RSL $25,000 of the $100,000 payment due on August 11, 2016, and $25,000 of the payment of $151,558.80 due on August 11, 2021, in exchange for a current payment of $22,500. RSL assigned its rights to receive the periodic payments to EHL. RSL filed a petition for approval of the transfer. State Farm filed an opposition to the petition, asserting, among other grounds, that (1) the proposed transfer would violate a California statute (
The trial court approved the transfer petition, and State Farm has appealed.
DISCUSSION
Standard of Review
We review a trial court’s interpretation of a statute under a de novo standard of review. (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 264 [82 Cal.Rptr.3d 629].)
The California Legislature has adopted the Structured Settlement Protection Act (SSPA) (
A transfer to a factoring company must be approved by the court and requires an express finding that the proposed transfer “will not contravene other applicable law.” (
State Farm initially contended that the trial court’s order requires it to split the $100,000 lump-sum payment due on August 11, 2016, three ways, among (1) RSL ($25,000), (2) EHL, RSL’s assignee in the 2012 transfer ($50,000), and (3) Alford ($25,000). At oral argument, State Farm’s counsel conceded that because RSL had assigned both the 2012 and 2013 payments to EHL, it was required to make only two payments, not three.
Despite conceding in the trial court that “an issuer cannot be forced to split or divide payments,” RSL now argues that
We agree that settled principles of statutory construсtion direct that “we ‘ordinarily’ construe the word ‘may’ as permissive and the word ‘shall’ as mandatory, ‘particularly’ when a single statute uses both terms.” (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542 [121 Cal.Rptr.3d 312, 247 P.3d 542].) However, RSL fails to recognize that a contrary principle of statutory сonstruction governs when the statute, such as
Moreover, while the parties have cited no published California case law expressly apрlying
“Where, as here, there is no California case directly on point, foreign decisions involving similar statutes and similar factual situations are of great value to the California courts.” (Martinez v. Enterprise Rent-A-Car Co. (2004) 119 Cal.App.4th 46, 55 [13 Cal.Rptr.3d 857].) Although such authorities are persuasive rather than mandatory precedent, we agree with thеir reasoning and conclusions. We therefore conclude that the trial court erred in entering an order that requires State Farm to divide payments because the SSPA provides that an annuity issuer may not be required to do so. (
Waiver, Forfeiture, Judicial Estoppel
RSL cоntends that State Farm has waived or forfeited or is judicially estopped from asserting its statutory right to avoid splitting payments because it waived any objections to dividing payment in the 2012 transfer order and agreed in its 2013 proposed order to divide payments. State Farm responds that it expressly preserved its ability to object to payment splitting in 2012 and timely objected to the 2013 transfer.
Waiver is the “intentional relinquishment of a known right.” (Applera Corp. v. MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 791 [93 Cal.Rptr.3d 178].) RSL argues that by agreeing to split paymеnts in the 2012 order, State Farm intentionally relinquished its right to assert the anti-splitting statute. However, the 2012 order expressly stated that State Farm’s “lack of opposition to this matter, or stipulation hereto or compliance herewith, shаll not constitute evidence in any other matter, and is not intended to constitute evidence in any other matter that: [¶] . . . [¶] c. Annuity Owner [State Farm Fire] and Annuity Issuer [State Farm Life] have waived any right in connection with any other litigation or claims.” The 2012 order thus makes it clear that State Farm did not intentionally relinquish its rights under
RSL nonetheless argues that by failing to object to the 2012 order, State Farm put an end to the anti-assignment condition. To support that position, RSL cites German-American Sav. Bank v. Gollmer (1909) 155 Cal. 683 [102 P. 932]. That case stated the principle that a condition against waiver of assignment of a leasehold estate is permanently discharged by consent or waiver. (Id. at p. 688.) That principle is inapposite in the present context.
The Proposed 2013 Order
RSL argues thаt State Farm submitted a proposed 2013 order in the same form as the 2012 order (which provided for splitting the Aug. 11, 2016, payment between Alford and EHL) and consented to splitting payments.
State Farm filed a written opposition to the propоsed transfer and appeared at hearings on the proposed transfer where it asserted its opposition to payment splitting. At the close of the September 24, 2013, hearing, the trial court stated it would approve thе transfer and instructed the parties to work out the form of the order. State Farm stated it would agree to an order in the form of the 2012 order, but RSL did not submit that proposed order to the trial court. State Farm therefore filed an objеction to the proposed order, stating that State Farm had not withdrawn its objection to the proposed order, that State Farm disagreed with the trial court’s ruling, and that RSL had misrepresented State Farm’s position by submitting a proposed order that differed from the proposed order to which State Farm had agreed.
Judicial Estoppel
RSL argues that State Farm is judicially estopped by its prior conduct from challenging the order requiring it to divide payments.
“ ‘Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’ ” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [70 Cal.Rptr.2d 96].) Judicial estoppel applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Id. at p. 183.) Judicial estoppel does not apply when a party merely advocates inconsistent provisions; rather, it applies whеn a party successfully asserts one position and later attempts to benefit from asserting an inconsistent position. (Tiffin Motorhomes, Inc. v. Superior Court (2011) 202 Cal.App.4th 24, 32 [136 Cal.Rptr.3d 693].)
Here, the 2012 transfer was a separate and distinct transaction as to which State Farm elected to rаise no objection while explicitly reserving its right to do so in the future. Thus, State Farm’s positions in the two transactions are not “totally inconsistent.” The doctrine of judicial estoppel does not apply.
Reversal of Order
We have concluded that the trial court’s order violated
The order appealed from is reversed. Appellants are awarded their costs on appeal.
King, J., and Codrington, J., concurred.
A petition for a rehearing was denied September 10, 2015, and the opinion was modified to read as printed above.