Full Opinion

Filed 9/21/26; Certified for Publication 10/19/26 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO USPA CITY CENTER, LLC, Plaintiff and Respondent, A174766 v. LAW OFFICES OF JASON W. (Alameda County ESTAVILLO, P.C., Super. Ct. No. 24CV079245) Defendant and Appellant. In December, 2023, appellant Law Offices of Jason Estavillo (Estavillo) entered into a 66-month lease for significant office space in a building in downtown Oakland owned by respondent USPA City Center, LLC (usually the lessor, sometimes USPA). Estavillo quickly fell behind in its payment obligations, and the lessor filed an unlawful detainer action. The parties settled the action, a settlement that included Estavillo agreeing to a stipulation for judgment if it failed to comply with the settlement terms. Estavillo did fail, the lessor sought judgment, and a hearing was held, following which the trial court found for the lessor, awarding back rent, holdover, and other damages totaling $350,677 and future rental damages of $1,219,015. 1 Estavillo appeals, attacking the future damages award, arguing it is not supported by substantial evidence, is an unenforceable penalty under California law, and awards a double recovery. We disagree, and we affirm. BACKGROUND The General Setting In December, 2023, Estavillo entered into a lease with USPA for 7,755 square feet of office space at the building located at 555 12th Street in Oakland. The lease was for a 66-month term, with a beginning rent of $30,333.33 per month, escalating each March. Relevant to the issue here, Paragraph 19.2.1(III) of the lease provided that upon default of the tenant, the landlord may recover “[t]he worth at the time of the award of the amount by which the unpaid rent for the balance of the Lease Term after the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided . . . .” Estavillo’s check for the security deposit was returned for insufficient funds. Its performance was downhill from there, and beginning in early 2024, it failed to make rent and other payments due under the lease. By June—barely six months into the lease—Estavillo had accumulated unpaid rent of $107,618. That same month, the lessor filed an unlawful detainer action, which was quickly settled when the parties entered into a “Settlement Agreement and Release,” a settlement designed to give Estavillo the opportunity to bring its payments current by paying $15,000 per month in addition to its rental obligation. The settlement also contained a stipulation that if Estavillo failed to comply with this payment arrangement, the lessor could file the stipulation ex parte to obtain judgment for items due under the lease— immediate possession, unpaid rent, late fees, attorney fees and costs, and 2 future rent through the expiration of the lease. As the trial court would later observe, Estavillo agreed to the stipulation expressly acknowledging that it was relying on its “own judgment, belief, knowledge, investigation, independent legal or expert advice, and research of the nature and extent of the Party’s claims, cross-claims, defenses, rights, and potential liabilities.” After executing the settlement, Estavillo again missed its agreed-upon payments. Estavillo proposed yet another payment arrangement; again, it did not meet its promise. In total, the lessor’s brief asserts—an assertion with which Estavillo does not take issue in its reply brief—Estavillo “bounced thirteen payments.” In April 2025, the lessor filed its ex parte application for entry of judgment pursuant to the stipulation. It included a memorandum of points and authorities and two declarations, of Abram Petersen, one of the lessor’s attorneys, and Jenna Hattersley, the director of operations for the property manager, who authenticated some exhibits. All told, the lessor’s filing was some 100 pages. Estavillo, represented by Mr. Estavillo himself and Elizabeth Hurwitz, an attorney then with the firm, filed opposition, a total of seven pages. It included a declaration of Mr. Estavillo that was a total of 19 lines, essentially testifying that one item of arrearage claimed by the lessor was inaccurate. It also included a three-page memorandum, asserting a claimed procedural irregularity, a claimed substantive irregularity, and a brief argument—two- thirds of a page—that the “future rent amount does not account for mitigation.” On April 18, the lessor filed a supplemental brief and supplemental declarations of Mr. Petersen and Hattersley. And on April 25, Estavillo filed its reply to the supplemental materials. 3 The matter came on for hearing on July 22, 1 with Estavillo appearing remotely, represented by Ms. Hurwitz; Mr. Estavillo also appeared. The focus of the hearing was mitigation. The lessor presented two witnesses, the first of whom was John Dolby, a real estate broker and Executive Vice President at Cushman and Wakefield, who worked in commercial real estate in downtown Oakland since 1986, and who, after voir dire by the court was declared an expert. Dolby’s testimony included that the downtown Oakland market was “dire,” it had cratered. “Class A” vacancy was 35 to 36 percent, rents had fallen, and demand for downtown Oakland office space was negligible. Specifically, there were some 30 prospective tenants looking for space in downtown Oakland, equating to some 200,000 square feet of demand, compared to 4,000,000 square feet of available space. No one in Oakland was looking for space similar to the size of the Estavillo premises (7,755 square feet), with the few active tenants seeking some 2,000 to 5,000 square feet, Dolby describing the premises as a “Ford Pinto station wagon; nobody wants it right now because nobody’s looking for that.” As to 555 12th Street, the building in which the premises were located, Dolby testified that occupancy had gone from roughly 70 percent occupancy in 2022, to 62 percent in 2023, to 55 percent at the end of 2024. An accounting firm signed a lease for suite 1200 in 2024, but that was after the space had been on the market for three to four years—and after the landlord spent significant sums demising 2 and improving it. 1 A comment at that hearing referenced a prior hearing, but there is no transcript of any such hearing in the record. 2 Demising refers to the process of dividing or partitioning a larger space into smaller parts. 4 Dolby testified extensively about Exhibit 9, which tracked suite number, approximate square footage, date on market, and months on market for available units at the 12th Street building and also comparable buildings at 1901 Harrison, 1999 Harrison, and 1111 Broadway Streets. 3 This included a 9,700 square foot space (suites 240 and 250) at 1901 Harrison Street on the market for 80 months and a 9,700 square foot space at 1999 Harrison Street, which could be divided into smaller units, and had been on the market for 74 months. It also showed that suites 500 (approximately 20,000 square feet) and 300 (approximately 20,000 square feet) at the building had each been on the market for over six years even though they could be divided into smaller units. And it also showed that the lessor had marketed three similarly sized units for 10, 15, and 69 months as of the hearing date. Finally, the Estavillo space could not practically be subdivided because of code requirements, lack of exits, the need to install a demising wall, and the need to install a kitchen. Asked about the time to re-lease the premises, Dolby opined that a similar space could take “up to five years” to re-lease in the current market, and that it was reasonable to believe that the lessor would not find a replacement tenant before August 2029, the end of the lease term. The lessor’s other witness was Hattersley, the Director of Operations with Harvest Properties, the property manager, who had been assisting with leasing and overseeing the building for the last ten years. Her testimony included that the building had the highest vacancy she had seen during her 3 The court admitted three of the lessor’s exhibits: Exhibit 4 (a chart of past due charges and missed payments); Exhibit 5 (a chart of future rent discounted to present value); and Exhibit 9 (the chart of available units in the building and similar buildings). The court declined to admit Exhibits 6, 7, and 8, but held that Dolby could rely on them as an expert. 5 tenure: pre-pandemic occupancy rates were around 95 percent and current rates around 55 percent. This was due to crime in Oakland, lack of demand, and tenant downsizing. Hattersley testified that Matson Navigation, the building’s largest tenant—who had occupied more than 50,000 square feet for approximately 20 years—was leaving the building a year before its lease ended and relocating to Walnut Creek due to employee safety incidents and complaints about conditions in downtown Oakland. Estavillo presented no witnesses at the hearing, expressly declining the court’s invitation. And other than cross-examination, Estavillo offered no counter-evidence on mitigation or market conditions, no expert testimony, data, exhibits, or broker opinions to show that the losses could have been avoided. At the conclusion of the testimony, the attorneys gave brief arguments. Estavillo requested supplemental briefing, which the court ordered, and the hearing ended. On August 28, the trial court filed its order and judgment, awarding the lessor back rent, holdover, and other damages totaling $350,677 and future rental damages of $1,219,015—an order that was comprehensive indeed. Following a lengthy description of the facts and developments leading to the hearing, the court concluded as follows: “The court finds that the Settlement Agreement was breached, grants the application, and enters judgment as follows. Pursuant to the Stipulation, the court awards back rent, holdover, and other damages, with the exception of future damages, totaling $350,677.82 based on the ledger set forth in Exhibit 1 of Jenna Hattersley’s August 12, 2025, declaration, and as supported by Plaintiff’s declarations, multiple hearings on the matter 6 including the presentation of witnesses and other evidence, and several rounds of briefing. “Pursuant to the Stipulation, Plaintiff is awarded possession of 555 12th Street, Suite 1280, Oakland California, 94607. A writ of possession shall issue. “Pursuant to the Stipulation, Plaintiff is entitled to post-judgment interest on its total award of 10% per annum from the date of this judgment. “As for future damages, parties do not typically pursue future damages in an unlawful detainer action. They file a separate general civil action for money damages after eviction. However, the court here is enforcing a settlement agreement under jurisdiction created by CCP 664.6 and agreed to by the parties, and the agreement specifically calls for future damages under the lease. Defendant acknowledges that ‘A lessor of real property may recover the worth at the time of the award of the unpaid rent which would have been earned after termination, until the time of the award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided.’ However, Defendant argues that Plaintiff has failed to account for its duty to mitigate future damages. The court asked for further briefing on mitigation and other matters, including that the future damages clause may be an unlawful liquidated damages clause. The court will address each of these issues.” And from there the court went on addressing those issues, setting forth its legal and factual reasons for its two holdings: (1) the future damages claim under the stipulation was not an unlawful liquidated damages provision, and (2) the mitigation issue. As to the latter issue, the fundamental issue here, the trial court held as follows: 7 “After considerable briefing, presentation of evidence, and further hearings, the court finds that Plaintiff cannot currently mitigate damages because Defendant is still present in the subject premises. Based on the presentation of live testimony and other evidence offered by Plaintiff’s real estate expert (John Dolby) and the designated property manager (Jenna Hattersley), it will take time to redevelop the space the Defendant is in before it can be marketed. Once marketed, the current market for similar space in Oakland is dire. The building that the subject premises is in has a current 55 percent vacancy rate. Other similar buildings nearby in Oakland are not renting spaces quickly. Plaintiff’s real estate expert testified that Plaintiff could not reasonably expect to re-rent the space at issue here before the expiration of the lease. At one point during his live testimony however, he opined that a similar space may take 3 years. Review of research relied on by the expert and admitted into evidence demonstrates similar-sized spaces were on the market around 2 years. There is inconsistency in the expert’s position, and the court takes this into consideration, along with testimony and other evidence showing it will take some time to prepare the space once Defendant moves out, and to market and re-rent the space. Assuming Plaintiff adheres to its duty to mitigate, and taking this into consideration, the court awards future damages of rent for three years (9/1/2025–8/31/2028) reduced to present value as calculated in the ledger set forth in Exhibit 2 of Jenna Hattersley’s August 12, 2025 declaration. Having confirmed the accuracy of the ledger calculations, the total future rental damages reduced to present value is $1,219,015.63.” Judgment was entered for the lessor, and on October 21, Estavillo filed a notice of appeal. 8 Via an unopposed motion to augment the record filed by the lessor in June, 2026, the record was augmented with an order after the judgment indicating that Estavillo sought, and over opposition obtained, an order staying execution of the writ of possession for the premises subject to ongoing conditions such as the payment of monthly rent, and staying the judgment pending resolution of the appeal. At oral argument, counsel for Estavillo represented that Estavillo is still occupying the premises, further representing that it has paid over $400,000 to do so. DISCUSSION Introduction Represented on appeal by counsel unconnected with it, Estavillo has filed a 28-page opening brief that asserts three arguments: (1) “The Three- Year Future Rent Award Was Unsupported Because the Losses Could Be Avoided Under Civil Code Section 1951.2”; (2) “The Stipulation Judgment for Future Rent Is An Unenforceable Penalty”; and (3) “The Judgment Awards an Impermissible Double Recovery.” Doing so, the brief ignores almost all of Dolby’s and Hattersley’s testimony and the lessor’s exhibits. Rather, the brief starts with the assertion early in its introduction that the lessor’s evidence was “exceptionally thin,” and from there to the assertion that the judgment was not proper because the “losses that could have been avoided and on the expert testimony lacked factual foundation and [was] internally inconsistent.” Doing so, Estavillo’s brief contains a claimed statement of facts that refers to a few of Dolby’s answers to questions, some of which it takes out of context, all, we note, in violation of the precept that the evidence must be viewed most favorably to the lessor and in support of the judgment. (Nestle v. 9 City of Santa Monica (1972) 6 Cal.3d 920, 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Given the significance of the issue of mitigation, a paragraph of Estavillo’s brief illustrates the misrepresentation. Here is the paragraph, with citations omitted: “Dolby admitted that Suite 1280 had never actually been marketed after [Estavillo]’s tenancy began. When asked directly whether the suite had been marketed for a new tenant, Dolby testified: ‘We have not marketed it since . . . the tenant moved in.’ He admitted that the reason was simply that ownership had not asked him to market it. He testified: ‘We haven’t been asked to market it.’ . . . Mr. Dolby also acknowledged that it is standard practice to show occupied commercial spaces to prospective tenants when permission is obtained from the landlord and tenant. Nevertheless, he confirmed that no such efforts had been undertaken with respect to Suite 1280. Specifically, he testified that it is ‘standard’ to show occupied premises ‘as long as we’ve got permission from the landlord and from the tenant to show the premises.’ This testimony undermined any implication that the landlord was unable to begin mitigation efforts while [Estavillo] remained in possession.” This paragraph is most misleading, as it ignores the entire context here, that the lessor had no reason to advertise a space it could not deliver, not with Estavillo still there and refusing to leave. As the trial court put it, “After considerable briefing, presentation of evidence, . . . the court finds that [lessor] cannot currently mitigate damages because [Estavillo] is still present in the subject premises.” In short, Estavillo’s treatment of the record violates California Rules of Court, rule 8.204(a)(2)(C), which provides that an appellant’s opening brief 10 shall “provide a summary of the significant facts . . . .” As the leading California appellate practice guide instructs about this: “Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [Citation.] [¶] Misstatements, misrepresentations, and/or material omissions of the relevant facts or law can instantly ‘undo’ an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025) (Eisenberg) ¶ 9:27, italics omitted.) Such candid summary is missing here. Estavillo’s brief also attempts to make much of a comment by the trial court early in Dolby’s testimony, a comment that Estavillo uses to assert that “[t]he most reliable evidence concerning the Oakland commercial market was Exhibit 9 . . . that identified a 15-month mean for releasing [sic], of comparable office space.” This is not only misleading, it is unavailing, for reasons both factual and legal. To put the comment in context, early in Dolby’s testimony about Exhibit 9 referring to how long properties remained in the market, the court, reading the exhibit along with Dolby, remarked: “THE COURT: And I’m looking at the . . . between, I guess, 5000 to about 9000 square feet. “And in 555–12th Street, I’ve got two of these here that are on the market for 10 months, 15 months, and then the one on the second page is 69 months. 11 “And so, that tells me there’s a mean somewhere around 15 months of premises that are around the same square footage as the square footage at issue here. “Am I misreading this? Or do I not understand it correctly? “Can you tell me that?” While Dolby responded, “you are correct,” he went on for the next two pages clarifying the various problems presented for releasing, the court responding along the way that “I understand your point.” In short, the comment is not all it is cracked up to be factually. 4 But even if it were, it is of no significance. As the court put it in Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451, “Because we review the correctness of the order, and not the court’s reasons, we will not consider the court’s oral comments or use them to undermine the order ultimately entered. (Cf. Selfridge v. Carnation Co. (1962) 200 Cal.App.2d 245, 249 [‘oral opinions or statements of the court may not be considered to reverse or impeach the final decision of the court which is conclusively merged in its findings and judgment’]; Birch v. Mahaney (1955) 137 Cal.App.2d 584, 588 [‘remarks made by a trial judge during a trial or argument, or even an opinion filed by him, cannot be used to impeach a formal decision, order or judgment later made or entered’].)” (Accord, In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 392; see generally Eisenberg, supra, ¶ 8:22.) 4 While Dolby said, “you are correct,” he was mistaken: the court’s reference to 15 months was not correct. The 15 months reference was to the middle number of the three time ranges, but it was not the mean, which is the average of the data. Here, that would be over 31 months: 10 + 15 + 69 = 94 / 3 = 31.3. This, of course, is close to the 36 months actually awarded by the trial court. 12 In sum, the court’s reference to “a mean somewhere around 15 months” was an early off-hand remark, totally belied by the court’s actual findings and conclusions quoted above that three years of future rent was appropriate. Against that background we turn to the arguments in Estavillo’s brief—and easily conclude they have no merit. Standard of Review Estavillo’s first argument is governed by well-settled principles, including that “ ‘[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) “If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) “Our job is only to see if substantial evidence exists to support the [decision] in favor of the prevailing party, not to determine whether substantial evidence might support the losing party’s version of events.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) The second and third arguments—that the future rent provision is an unenforceable penalty under Civil Code section 1671, and the judgment contains an improper double recovery—are reviewed de novo. (Creditors Adjustment Bureau, Inc. v. Imani (2022) 82 Cal.App.5th 131, 135; Vitatech v. Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 807–808 (Vitatech).) 13 Substantial Evidence Supports the Future Rent Award As quoted above, the lease provides in relevant part that upon default of the tenant, the landlord may recover “[t]he worth at the time of award of the amount by which the unpaid rent for the balance of the Lease Term after the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided . . . .” This mirrors Civil Code section 1951.2, subdivision (4) that upon breach of a lease, the lessor may recover from the lessee “Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom.” Pursuant to the lease, the lessor sought the rent that would be due for four years, through the end of Estavillo’s 66-month lease. The trial court awarded three years of rent, with the detailed discussion quoted above. Estavillo’s first argument is that there is no substantial evidence supporting that award. To the contrary: there was plenty of evidence. We begin with Dolby’s testimony that the Oakland market had cratered—it was “dire.” Specifically, he testified that “Class A” office spaces of similar size had been vacant for periods ranging to as long as 80 months. He identified a similar unit that had taken three to four years to market, not to mention required extensive remodeling. Dolby opined that the premises would not be re-leased before the August 2029 lease expiration, and that a similar space could take five years or more. And as Hattersley testified, and the trial court found, the lessor cannot market the premises while Estavillo remains, actively fights eviction, and will not provide a move-out date. In addition to the express testimony of Dolby and Hattersley, objective data supported the award. Such data included that “Class A” vacancy rate 14 was 35 to 36 percent in downtown Oakland, with only 30 active tenants seeking space—this in a market with four million square feet of supply. The building had a 55 percent occupancy rate, which had declined sharply over the last several years. Its largest tenant, which rented nearly 50,000 square feet, was vacating a year before its lease term ended because of local crime. And a comparable space had been marketed for 69 months without finding a replacement tenant. Moreover, the Estavillo premises has characteristics that made it particularly difficult to lease. Estavillo’s site was 7,755 square feet in a market where active tenants were seeking 2,000 to 5,000 square feet. And the space could not be subdivided, due to code issues, lack of exits, the need to install a demising wall, and the need to construct a new kitchen. Estavillo’s first argument has a bold-faced sub-argument that the “36- month Future Rent Award is Based on Unreliable Expert Testimony in Violation of Sargon.” Hardly. Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon) involved a claimed expert witness for plaintiff who projected massive lost profits by assuming a small dental implant company would become a global market leader despite the absence of historical or comparable business evidence supporting that conclusion. (Id. at pp. 777– 781.) The trial court excluded the expert testimony, but the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal, holding that expert methodology assumptions without evidentiary support cannot substitute speculation for evidence merely by framing predictive assumptions as professional opinion. (Id. at pp. 780–781.) Thus, trial courts must exclude expert testimony resting on speculation, or unsupported assumptions with 15 “too great an analytical gap between the data and the opinion proffered.” (Id. at pp. 770–772.) There was no “analytical gap” here. Dolby relied on his 40 years of experience in the Oakland commercial market; objective comparable data showing vacancy durations for similar “Class A” office spaces in the same market; the fact that the building had only 55 percent occupancy; and the fact that a comparable suite in the same building had been vacant for over five and a half years. He considered the comparable vacancy data alongside the building’s occupancy rate, the impossibility of subdividing the premises, and the poor market for office space in downtown Oakland, not to mention Cushman & Wakefield’s systematic market tracking (including bi-weekly office meetings) where brokers discussed current market conditions, demand levels, and comparable transactions. Indeed, the trial court admitted Exhibit 9 expressly because it was “research that was performed at [Dolby’s] direction” and reflected methodical market analysis that distinguishes reliable expert testimony from speculation. The trial court exercised its function under Sargon with notable care. It examined Dolby on his qualifications, expressly found him qualified as an expert, asked its own questions about market conditions, identified what it viewed as an inconsistency in his testimony, expressly discounted the outer end of Dolby’s range, and calibrated its award based on the totality of the evidence. As the lessor colorfully puts it, “That is not a Sargon failure; it is Sargon in practice.” The Stipulation Is Not An Unenforceable Penalty As indicated above, despite his agreeing to it, Estavillo’s second argument is that the stipulation is an unenforceable penalty, relying on two cases that dealt with liquidated damages: Vitatech, supra, 16 Cal.App.5th 16 796, and Sybron Corp. v. Clark Hospital Supply Corp. (1978) 76 Cal.App.3d 896 (Sybron). It is perhaps enough to say that we see nothing “liquidated” about the agreement, given that the amount of damages was subject to proof. But whatever the provision, Estavillo had the burden to prove it unenforceable, as Civil Code section 1671, subdivision (b) provides: “a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.” The trial court addressed the issue below, holding this: “The future rental damages claim under the Stipulation is not an unlawful liquidated damages clause, as it represents amounts recoverable under the lease and Civil Code section 1951.2, even if the amount for future rent is significant compared to the other damages. Under Civil Code section 1671, subd. (b), Defendant would have to establish that the future-rent provision was unreasonable under the circumstances existing at the time the contract was made. (1) The court finds the provision for future rent damages was not unreasonable. Section 1951.2, subd. (a)(2) clearly allows recovery for future rents and the parties here are sophisticated, understanding that future rents would be reduced to present value and that they were relatively easily calculable under the lease. It appears it is the significant amount of future rental damages sought that is at issue and Defendant considers unreasonable. Specifically, the amount does not account for mitigation of damages. The court addresses mitigation and accounts for it below; therefore, the argument is not a basis establishing unlawful liquidated damages. (2) Defendant did not submit any evidence to show that the 17 requirement that his firm pay rent through August 2029, is an unreasonable penalty pursuant to Civil Code § 1671(b). See Creditors Adjustment Bureau, Inc. v. Imani (2022) 82 Cal.App.5th 131, 135–136 (party asserting that the amount specified is an unreasonable penalty has the burden of proof).” Estavillo has submitted nothing to the contrary. And the two cases he cites are easily distinguishable. Vitatech, supra, 16 Cal.App.5th 796 involved a manufacturer that sued its customer for $166,372.14 for failing to pay invoices. The customer answered, asserting numerous affirmative defenses, including that the contract was unenforceable, the manufacturer breached the contract, and the manufacturer improperly manufactured and labeled its products. (Id. at pp. 800–801.) The parties settled for a one-time payment of $75,000, with a stipulation that provided if defendant failed to pay the settlement amount, judgment could be entered for more than $300,000—four times the agreed worth of the dispute and almost twice what the plaintiff initially sought. (Ibid.) The trial court entered judgment based on the stipulation. The Court of Appeal reversed, holding that the stipulated judgment was void as a penalty because it bore no relationship to the damages anticipated from the defendant’s failure to make the settlement payment on time. (Id. at pp. 809– 811.) As the court described it earlier, it bore “no reasonable relationship to the range of damages the parties could have anticipated would result from defendant’s failure timely to pay the settlement amount.” (Id. at p. 801.) Likewise, Sybron, supra, 76 Cal.App.3d 896. There, Sybron sued defendant buyer of hospital beds for $143,977.68. Defendant asserted affirmative defenses and cross-claimed for $159,739. The parties settled with the buyer to pay $72,000 over 12 installments, with a stipulation that default would trigger a $100,000 judgment. The buyer made only $42,000 in 18 payments before falling behind, and the seller had judgment entered for $100,000. The Court of Appeal found this was a $28,000 penalty for the late payment of $30,000 and thus grossly disproportionate. (Id. at pp. 900–903.) Here, by contrast, the stipulation did not escalate damages above what the lease—and the Civil Code—allowed. Future rent due through the lease expiration was not a “penalty” imposed for missing settlement payments, but was the actual, ongoing contractual obligation Estavillo assumed when it signed a 66-month lease, and reaffirmed when it signed the settlement. The Judgment Does Not Award a Double Recovery Estavillo’s last argument, a brief two pages, is that the judgment awards an impermissible double recovery. The argument begins this way: “The Judgment grants Respondent the right to immediate possession of Suite 1280 while simultaneously awarding it 36 months of unmitigated future rent.” Given that Estavillo successfully moved for a post-judgment order allowing it to remain in the premises, the argument appears to be quite audacious, as Estavillo hypothesizes that the lessor might one day re-let the premises and then collect both the new rent and the judgment. The lessor’s respondent’s brief described the argument as speculative and premature. We note initially that Estavillo’s argument fundamentally misapprehends Civil Code section 1951.2, subdivision (a)(2), which expressly provides that upon termination, the lessor “may recover from the lessee” the worth of unpaid rent for the balance of the lease term, subject to mitigation credits. Here, the trial court fashioned the award in light of Civil Code section 1951.2: It carefully analyzed the evidence, imposed a three-year period based on its analysis, and reduced the award to present value. Estavillo’s opening brief was filed before the augmentation. But Estavillo’s reply brief, filed after the augmentation, asserts that the double- 19 recovery is a function of Estavillo actually paying rent now to stay on the premises. As the brief puts it, “This is not a prediction about a future reletting; it is arithmetic on the present record. The future-rent judgment awards rent for [36 months]. The stay order requires Appellant to pay that same rent, month by month, for the same period. [Citation.] By the time of this brief, Appellant will have paid the landlord full contract rent for a series of months, every dollar of which corresponds to a month the landlord has already reduced to a present-value judgment against Appellant. The landlord thus holds a $1.2 million judgment for the same rental stream it is simultaneously collecting in cash. This is not a risk of a double recovery; it is a double recovery in progress.” This is a new argument in a reply brief, which brief also seeks a different remedy in its conclusion: “Finally, this is a defect in the measure of the judgment, not a matter to be sorted out later in enforcement. The award fixed a present-value lump sum for a defined 36-month period; the overlap with the stay payments is baked into that sum and cannot be cured by a future credit the judgment does not provide. The proper course is to reverse the future-rent award and remand for a redetermination that measures loss from the date possession is actually delivered and offsets the rent the landlord has received.” We have several observations. First, the argument is late and need not be considered. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [refusing to consider new issues raised in reply brief]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”].) Second, the situation Estavillo finds itself in is of its own making. 20 Finally, there is a judgment in existence that says what it says, and, of course, is subject to enforcement. If Estavillo claims it has a basis to assert an offset or some other credit to that judgment, it can take further steps as it sees fit. DISPOSITION The judgment is affirmed. USPA shall recover its costs on appeal. 21 RICHMAN, J. We concur. STEWART, P. J. MILLER, J. (A174766N) 22 Filed 10/19/26 after filing nonpublished opinion on 9/21/26. CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO USPA CITY CENTER, LLC, Plaintiff and Respondent, A174766 v. LAW OFFICES OF JASON W. (Alameda County ESTAVILLO, P.C., Super. Ct. No. 24CV079245) Defendant and Appellant. ORDER CERTIFYING OPINION FOR PUBLICATION THE COURT: The opinion in the above-entitled matter, filed on September 21, 2026, was not certified for publication in the Official Reports. After the court’s review of a request under California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is hereby ordered that the opinion should be published in the Official Reports. Dated: _______________________________ Stewart, P. J. 1 Trial Court: Alameda County Superior Court Trial Judge: Chad A. Stegeman Counsel: Tierny Law Group, Kent Tierney and Hamaseh Sorooshian for Defendant and Appellant. Lubin Olson & Niewiadomski, Bryan S. Silverman, and Abram P. Petersen for Plaintiff and Respondent. 2