NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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OPINION

BLACK,* J.

INTRODUCTION

Crisp Warehouse, Inc. (Crisp), a walnut processing business, filed a civil complaint against Mid-Valley Nut Company, Inc. (Mid-Valley), for breach of contract. The parties subsequently entered into a settlement agreement. After Mid-Valley failed to comply with the terms of the settlement agreement, Crisp requested a default judgment against Mid-Valley on its complaint. The trial court thereafter entered a judgment against Mid-Valley.

Mid-Valley filed a motion to vacate and set aside the judgment on the basis of mistake, inadvertence or excusable neglect under Code of Civil Procedure1 section 473, subdivision (b). The court denied the motion.

On appeal, Mid-Valley contends the trial court abused its discretion (1) when it denied Mid-Valley's motion to vacate and set aside the default judgment, (2) when it determined the settlement agreement had been abandoned, and (3) when it determined Crisp was free to continue with its lawsuit for breach of contract based on the original contract between the parties. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On June 23, 2015, Crisp filed a civil complaint against Mid-Valley in the Kings Superior Court alleging breach of contract. Crisp alleged that on July 30, 2014, Crisp entered into a written agreement with Mid-Valley wherein Crisp agreed to sell 144,000 pounds of its walnuts to Mid-Valley for a total price of $525,600. After taking delivery of one 36,000-pound shipment, Mid-Valley failed to pick up and pay for any of the next three scheduled shipments. Mid-Valley also failed to respond to Crisp's demand that it take possession of the remaining product by May 25, 2015.

On July 31, 2015, the parties entered into a settlement agreement and mutual release. Pursuant to the settlement agreement, Mid-Valley agreed to take delivery of the entire balance of the walnuts and pay Crisp $419,330.25; or if Mid-Valley elected to take delivery in installments, to make pro rata installment payments for the remaining shipments of walnuts. The agreement expressly provided Crisp's release of claims and the dismissal of the action were expressly conditioned upon first receiving Mid-Valley's payment in full.

Between July 29th and August 6, 2015, Crisp communicated with defendant many times regarding delivery and payment in accordance with the agreement's terms. Following multiple conversations about the pickup of a shipment, on August 6, 2015, Crisp made one last demand for Mid-Valley to pick up and pay for its scheduled shipment. Crisp's e-mail to Mid-Valley specifically noted the following: "Our settlement agreement with you calls for delivery by the end of July which has now past [sic], additionally, we have incurred additional cost to prepare this product for pickup by you. [¶] . . . If we do not hear from you we will proceed to liquidate the inventory at the best market price and proceed to the legal action for damages."

Mid-Valley did not respond to Crisp's demand, nor did it make any payment under the settlement agreement. As a result, Crisp sought a judgment of default pursuant to its June 23, 2015, complaint.

On August 25, 2015, default judgment was entered against Mid-Valley. Notice of entry of judgment was served upon Mid-Valley approximately three weeks later.

In November 2015, Crisp obtained an abstract of judgment, a postjudgment order to Mid-Valley to appear for examination, and a writ of execution.

Following receipt of the writ of execution, Mid-Valley filed an ex parte request for leave of court to hear a motion to vacate the judgment on shortened time or, in the alternative, to stay its enforcement. After granting the stay and hearing Mid-Valley's motion to vacate the judgment under section 473, subdivision (b), the court found Mid-Valley's declaration submitted in support of its motion "does not support a finding that defendant's default and the default judgment were taken as a result of defendant's excusable mistake and neglect." Accordingly, the court denied Mid-Valley's motion to set aside the default judgment entered on August 25th.

The instant appeal followed.

DISCUSSION

I. The Trial Court Properly Denied Defendant's Motion for Relief under Section 473, Subdivision (b)

Mid-Valley contends the trial court abused its discretion in denying its motion to vacate and set aside the default judgment. It specifically contends the court failed to consider that its motion was timely, plaintiff would not have suffered prejudice if relief were granted, and the court's decision deprived the parties of trying the case on its merits. Mid-Valley further contends Crisp had engaged in several discussions with Mid-Valley which led Mid-Valley to believe Crisp's complaint had been superseded by the settlement agreement.

We find these contentions meritless. Given the express terms of the settlement agreement, Mid-Valley's belief that Crisp could not proceed under the complaint after Mid-Valley failed to fulfill its obligations under the settlement agreement is not objectively reasonable. Further, Mid-Valley's contentions that it has been deprived of having the case tried on its merits and that Crisp would suffer no prejudice in proceeding to trial do not support the conclusion that the trial court abused its discretion in denying Mid-Valley's section 473 motion.

A. Standard of Review

An order granting discretionary relief under section 473, subdivision (b) is subject to the abuse of discretion standard of review. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The test for abuse of discretion is whether the trial court's decision exceeds the bounds of reason. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249; accord, Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.)

B. Discretionary Relief under Section 473, Subdivision (b)

Section 473, subdivision (b) provides for both discretionary and mandatory relief. The discretionary relief provision of section 473, subdivision (b) provides the following: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Section 473, subdivision (b) "applies to any `judgment, dismissal, order, or other proceeding.'" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254 (Zamora).)

A party who seeks discretionary relief under section 473, subdivision (b) on the basis of mistake or inadvertence must demonstrate such mistake, inadvertence, or general neglect was excusable. (Zamora, supra, 28 Cal.4th at p. 258.) When determining whether a party's mistake or inadvertence was excusable, "the court inquires whether `a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

A party seeking relief under section 473 must be diligent. (Zamora, supra, 28 Cal.4th at p. 258.) A request for relief must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b).)

C. Legal Analysis

1. Mid-Valley's Motion Does Not Show Excusable Mistake, Neglect, Inadvertence, or Surprise

Mid-Valley contends its failure to answer Crisp's complaint was attributed to mistake, inadvertence, surprise, or excusable neglect under section 473, subdivision (b), and as a result, the default judgment should have been set aside. According to Mid-Valley, because the parties were in the process of discussing new terms and conditions through several e-mails, it believed filing an answer to Crisp's complaint was not necessary. The argument is untenable for several reasons.

First, the settlement agreement expressly conditioned the release of all claims, including those "referred to or in any way related to the Complaint[]" upon performance of the terms of the settlement agreement. The settlement agreement also makes clear the underlying lawsuit would not be dismissed unless Mid-Valley paid Crisp $419,330.25, which did not occur.

Second, even if the settlement agreement were somehow ambiguous, Crisp unambiguously notified Mid-Valley more than two weeks before Crisp filed its request for a judgment of default that if Mid-Valley did not perform the settlement agreement, it would "proceed to the legal action for damages."

Finally, insofar as Mid-Valley asserts e-mail correspondence between Mid-Valley and Crisp shows it reasonably believed the original agreement had been superseded, we disagree. The correspondence Mid-Valley refers to consists of several e-mails between Crisp and Mid-Valley sent between July 2015 and August 2015. While the e-mails evince multiple attempts by Crisp to accommodate Mid-Valley's shipment needs, the e-mails do not show an intent by Crisp to abandon its rights under the original complaint. In fact, as has been mentioned, they demonstrate just the opposite.

Mid-Valley specifically points to Jim Crisp's demand letter sent by e-mail to Mid-Valley on August 6, 2015:

According to Mid-Valley, because Jim Crisp did not mention Crisp would proceed under the complaint, it was reasonable for Mid-Valley to believe the settlement agreement had superseded the complaint. As discussed, Mid-Valley's belief is not reasonable in light of the fact that the settlement agreement conditioned the dismissal of the action on performance of the terms in the settlement agreement and the express language of the e-mail, which states Crisp would "proceed to the legal action for damages."

Nonetheless, Mid-Valley points to paragraph 13 of the settlement agreement to support its contention that the original contract and the complaint were null and void.

Because the dismissal of the action was conditioned upon payment in the amount of $419,330.25, or a pro rata portion of this amount if Mid-Valley took delivery of walnuts in installments, Mid-Valley's belief that Crisp was unable to proceed under the complaint is simply not reasonable. While the settlement agreement was intended to supersede any prior agreements between the parties, the agreement was expressly conditioned upon performance of the terms set forth therein. Because Mid-Valley failed to perform its obligations under the agreement, Crisp was entitled to proceed under its complaint.

Mid-Valley further contends it "is not an attorney, and therefore should not be held to the standard of an attorney." According to Mid-Valley, it did not understand the default judgment was entered against it based on the complaint, "because [Mid-Valley] believed that the Complaint had been superseded by the Settlement Agreement." In our view, a plain, common sense interpretation of the settlement agreement and the subsequent communications between the parties make clear that Crisp could and would proceed under its complaint if Mid-Valley failed to perform under the terms of the settlement agreement.

Mid-Valley finally asserts "if given the opportunity to present its case, . . . the Court's ruling may have been different." It contends its case should be disposed of on its merits, and Crisp would not suffer prejudice as a result thereof. While relief under section 473 is "`highly favored and . . . liberally applied,'" the trial court did not err in denying Mid-Valley relief. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Mid-Valley has not shown the trial court abused its discretion in finding the judgment of default was not entered as a result of Mid-Valley's excusable mistake, inadvertence, surprise, or neglect. Neither the liberal policy favoring the granting of relief under section 473, nor the absence of prejudice to Crisp if relief were granted supports a contrary result.

2. Mid-Valley's Alleged Lack of Diligence Was Not Raised Below

On appeal, Crisp maintains Mid-Valley's motion was not timely filed. Section 473, subdivision (b) provides that a court may, on such terms as may be just, relieve a party or his legal representative from default entered against him through his mistake, inadvertence, surprise, or neglect. Application for such relief must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." What constitutes a "reasonable period of time" depends on the circumstances of each case, "but definitively requires a showing of diligence in making the motion after the discovery of the default." (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181.) "Whether a party has acted diligently is a factual question for the trial court." (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) "`"The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default."'" (Ibid.)

It does not appear that the issue of Mid-Valley's diligence in seeking relief from the default was raised in the trial court below and, therefore, the trial court failed to make any finding with regard to the issue. It is fundamental that a reviewing court will generally not consider claims raised for the first time on appeal that could have and should have been raised in the trial court. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.)

II. The Trial Court Properly Found the Settlement Agreement Had Been Abandoned

Next, Mid-Valley claims the trial court abused its discretion in concluding the settlement agreement had been abandoned. In its February 10, 2016, order, the court concluded "[p]laintiff's points and authorities support a conclusion that the settlement agreement was abandoned by the parties." Mid-Valley has failed to show the trial court erred in so holding.

Abandonment of a contract may be implied from the acts of the parties. (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 156.) "A contract may be mutually abandoned by the parties at any stage of its performance or before any performance has been commenced, and by such abandonment each party is released from any further performance, or, as in the instant action, each party is released from any performance at all." (Honda v. Reed (1958) 156 Cal.App.2d 536, 540.)

Here, Mid-Valley failed to comply with the terms of the settlement agreement, under which it was required to accept installment deliveries of walnuts, or pay the entire balance of the contract. Moreover, it failed to respond to Crisp's final demand for payment. As a result, Crisp moved for a judgment of default based on its June 23d complaint. In view of these facts, we conclude the record amply supports the conclusion the parties had abandoned the settlement agreement.

Mid-Valley contends the court's finding was erroneous because it was based on issues of fact, and further, Mid-Valley should be afforded the opportunity to present the merits of its case. Insofar as Mid-Valley implies the court's order was improper because it was based on an issue of fact the court was incapable of deciding, it does not support its argument with citation to legal authority. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [when a brief fails to cite applicable legal authority in support of an argument, the argument is forfeited]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [a party's failure to support an argument with citation to the record results in waiver of the argument].) The argument is therefore deemed waived.

To the extent Mid-Valley asserts it should be permitted to present the merits of its case, we remain unpersuaded by its argument. As discussed in part I, ante, this does not support the conclusion that the trial court erred in denying its section 473 motion.

III. The Trial Court Considered All Evidence Before It

Finally, Mid-Valley contends Crisp intentionally omitted reference to the settlement agreement in James Crisp's declaration and, as a result, the court had no knowledge of the agreement. We note that the record shows the court squarely confronted this issue in considering whether the default judgment should be set aside. The trial court's order specifically references the settlement agreement: "Plaintiff's points and authorities support a conclusion that the settlement agreement was abandoned by the parties. Accordingly, plaintiff was free to continue with the lawsuit and seek damages for breach of the original contract between the parties." We find no error.

DISPOSITION

The judgment is affirmed. Plaintiff is awarded costs on appeal.

HILL, P.J. and POOCHIGIAN, J., concurs.