David and Margaret Critzer, owners of a townhome in a Cupertino project known as Northpoint, and their neighbor, Jerry Enos, had a dispute concerning a window installed in Enos’s upstairs bathroom in February 2004. The Critzers ultimately brought suit against Enos, Darien A. Tung (Enos’s successor in interest), and Northpoint Homeowners Association (HOA). After it was assigned out to trial, the lawsuit was purportedly settled in January 2008, and its terms were recited on the record. Three of the five parties gave their personal consent in court to the purported settlement. Months later, after the parties reached an impasse concerning the appropriate language for a formal written agreement, the HOA brought a motion to enforce settlement under Code of Civil Procedure section 664.6. 1 The court initially entered an order denying the Crtizers’ request to insert three conditions in a formal agreement; requiring the parties to exchange language for a written agreement; and indicating that if the parties could not agree, it would select the appropriate settlement agreement from draft agreements submitted by the parties. After the parties were unable to reach an accord concerning the language of the agreement, the court entered an order enforcing settlement, holding that the HOA’s version of the written agreement accurately reflected the parties’ settlement, and declaring it binding on all parties.
The Critzers contend on appeal that the order enforcing settlement must be reversed. They argue that the court, by adjudicating controversies between the parties concerning the language in the formal settlement agreement, exceeded its authority under section 664.6. The HOA asserts in response 2 that the order is nonappealable and therefore should be dismissed. The HOA contends that if the matter is considered on the merits, the Critzers’ proposed terms were not among those agreed upon by the parties, and the written agreement enforced by the court accurately reflected the parties’ settlement that had been placed on the record.
We conclude that the order enforcing settlement finally determined the rights of the parties and therefore we will amend the order to include an appealable judgment.
(Hines v. Lukes
(2008)
PROCEDURAL BACKGROUND
The Critzers filed this action on January 19, 2005. In their second amended complaint of in or about July 2007, they alleged seven causes of action, namely, negligence against the HOA; private nuisance against Enos and Tung; invasion of privacy against Enos and Tung; breach of contract (the covenants, conditions and restrictions (CC&R’s) applicable to Northpoint) against all defendants; breach of equitable servitudes against all defendants; breach of fiduciary duty against the HOA; and declaratory relief against all defendants. 3
The Critzers alleged in the second amended complaint that in December 2003, Enos submitted an application to the HOA for approval of the proposed installation of a second-story bathroom window, the HOA approved it, and Enos thereafter submitted an application to the City of Cupertino for a building permit, which was approved. 4 They alleged further that as a result of the installation of the window that is directly east of the Critzers’ living room window, Enos was thereby afforded an eye-level, direct view of the Critzers’ entire living room to the farthest interior wall of that room, and conversely, the Critzers were thereby afforded a direct view from their living room of Enos’s master bathroom. The Critzers claimed that they received no notice (as required under the CC&R’s) of the application for, or approval of, the installation of Enos’s window.
The case was assigned out to the Honorable James P. Kleinberg for jury trial on January 28, 2008. The matter was taken off calendar after the terms of a purported settlement were recited on the record two days later (the Settlement).
5
In August 2008, the HOA filed a motion to enforce settlement
DISCUSSION
I. Notice of Appeal and Appealability
A. Notice of Appeal
Before addressing the HOA’s contention that the Critzers’ challenge to the order below is not appealable, we discuss a procedural quirk that, although not raised by the parties, must be considered because it is fundamental to the question of whether we may consider this appeal. The notice of appeal filed February 23, 2009, refers to and attaches the court’s order filed January 30, 2009 (January 30 order), in which the court found that the HOA’s draft of the settlement agreement accurately memorialized the parties’ Settlement and declared it binding on all parties as a court order. The problem, however, is that the January 30 order contained the caption and case number for another action involving the parties and the City of Cupertino. It is evident from our review of the superior court’s Web site (see <http://www.sccsuperiorcourt.org> [as of Aug. 30, 2010]) that the January 30 order was filed in that related action on January 30, 2009 — when that case was pending on appeal before this court (see fn. 4,
ante)
— but was not filed in this case.
6
The trial court apparently became aware of this problem, since it subsequently filed an order in this action, using the correct caption and case number, on February 23, 2009 (February 23 order), which had the same text as the January 30 order except for the preamble: “This Order is identical in content to that Order of January 30, 2009 mistakenly filed in
Critzer
v.
City of Cupertino,
No. 1-06-CV-066535.” The February 23 order differed from the January 30 order in one other respect in that it failed to attach as an exhibit
“[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.”
(Luz v. Lopes
(1960)
Clearly, the Critzers’ appeal is substantively from the court’s order finding the HOA’s draft agreement to have accurately memorialized the parties’ Settlement and declaring it binding on all parties. The fact that the order at first contained the wrong caption and was filed in a related case in which no motion was pending at the time
7
does not alter the fact that it is “reasonably clear what [they were] trying to appeal from”
(Luz v. Lopes, supra,
The HOA contends that this case should be summarily disposed of because the order being challenged by the Critzers is not appealable. It claims that the order is neither a final judgment nor a final order and is hence not reviewable on appeal. The HOA contends that the Critzers’ proper remedy, which they failed to employ, was a motion for reconsideration. 9 The Critzers respond that the order being challenged finally adjudicated all of the claims in the action and was therefore appealable.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]”
(Griset v. Fair Political Practices Com.
(2001)
In
Viejo Bancorp, Inc. v. Wood
(1989)
In arguing here that the court’s order enforcing settlement is not appeal-able, the HOA relies on
Doran
v.
Magan
(1999)
Doran
does not control our decision here for the obvious reason that it concerned the
denial
of a motion under section 664.6, while the court here
granted
the HOA’s motion to enforce settlement. Thus, we find that
Viejo Bancorp, supra,
It is true that the court, in its order granting the HOA’s motion to enforce settlement, did not formally use the word “judgment” as provided under the statute. (See § 664.6 [“the court, upon motion, may enter judgment pursuant to the terms of the settlement”].) “ ‘A judgment is final “when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” ’ [Citations.]”
(Sullivan v. Delta Air Lines, Inc.
(1997)
Here, “the substance and effect of the adjudication, and not the form”
(Doran, supra,
We therefore conclude that, although it would have been preferable for the court to have disposed of the HOA’s motion by entering judgment as specified in section 664.6, the order here finally determined the rights of the parties. Therefore, “we will amend the order to include an appealable judgment so as to expedite appellate review.”
(Hines v. Lukes, supra,
II. Motions to Enforce Settlement Under Section 664.6
The Second District Court of Appeal, Division Two, has succinctly described the nature of motions brought pursuant to section 664.6: “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.] . . . Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 664.6 authorizes a judge to
create
the material terms of a settlement, as opposed to deciding what terms
the parties themselves
have previously agreed upon.”
(Weddington Productions, Inc.
v.
Flick
(1998)
The trial court’s factual findings on a motion to enforce a settlement under section 664.6 “are subject to limited appellate review and will not be disturbed if supported by substantial evidence.”
(Williams
v.
Saunders
(1997)
IE. Whether Purported Settlement Is Enforceable Under Section 664.6
The record discloses that when the Settlement was recited on the record on January 30, 2008, two of the five parties did not personally give their consent to it. Because this raises a serious question as to whether the statutory requirements of enforcing a settlement under section 664.6 were satisfied, we address the issue below. Additionally, in view of the fact that the apparent absence of the parties’ personal consent to the oral Settlement was not a focal point of either the Critzers’ opposition to the motion or of their appeal, we also address below whether any enforceability argument should be deemed forfeited. 10
A. Enforceability of Purported Settlement
Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
Johnson v. Department of Corrections
(1995)
Similarly, in
Murphy v. Padilla
(1996)
Since
Levy,
several cases have addressed the question of whether
all
parties must personally assent to a settlement in order for it to be enforceable under section 664.6, or whether it is sufficient that the party against whom the settlement is being enforced has personally assented. In
Harris v. Rudin, Richman & Appel
(1999)
Similarly, in
Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc.
(2002)
Finally, in
Gauss, supra,
Here, the record demonstrates that the oral Settlement the HOA sought to enforce was recited in open court on the record on January 30, 2008. The previous day, the court recited the terms of a settlement on the record, and the Critzers’ attorney and Tung’s attorney each added clarifications to the recital. No party voiced his/her/its assent on the record on January 29. On January 30, after the HOA’s attorney recited the terms of the Settlement, and after a clarification from Tung’s counsel, the court obtained the consent of David Critzer, Margaret Critzer, and Tung. The court indicated that Enos was not present, but Enos’s attorney, Frank Jelinch, indicated that he had authority for his client, had spoken with him, and Enos was “agreeable.” There was no consent to the Settlement given by the HOA; indeed, the record does not reflect whether a representative of the HOA was present at the January 30 hearing.
The HOA’s motion to enforce settlement pursuant to section 664.6 brought in August 2008 contained the assertion that the parties had settled the case on January 30, 2008, and recited the terms of the Settlement by reference to the matters contained in the reporter’s transcript. The motion clearly indicated that the Settlement was reached on January 30 and that it was enforceable under section 664.6. We therefore conclude that — addressing the issue without reference to whether the contention may have been forfeited (see pt. m.B.,
post)
— the oral Settlement was not enforceable under section 664.6. Plainly, there was no personal consent to the recited terms of the Settlement by two of the five parties, the HOA and Enos. Any claim that the Settlement was nonetheless effective because it was expressly consented to by Enos’s agent (Jelinch), and perhaps impliedly consented to by the HOA’s agent (Attorney Mark Shem, who recited the terms of the Settlement), lacks merit. Under
Levy, supra,
The HOA claims — in both its brief and supplemental letter brief (see fn. 10,
ante)
— that under
Elyaoudayan v. Hoffman
(2003)
Here, neither the HOA nor Enos orally consented at the hearing to the Settlement. Likewise, neither the HOA nor Enos gave its or his subsequent written consent by signing a writing attaching the reporter’s transcript (reciting the Settlement terms). The fact that a representative of the HOA— some three and one-half months after the oral Settlement — signed a formal document prepared by its counsel (entitled “Mutual Release of All Claims and Settlement Agreement and Covenant Not to Sue”) — does not alter the circumstances that, unlike in
Elyaoudayan,
the HOA neither orally agreed to the Settlement at the time nor agreed in writing by signing a document attaching the court transcript reciting the terms of the Settlement. Similarly, the fact that Enos signed a version of a written settlement agreement on a
Moreover, we reject the HOA’s assertion in its supplemental letter brief that
Elyaoudayan
is controlling because, by signing the written settlement agreement, the HOA and Enos agreed in writing to the same terms that were recited in court on the record and orally agreed to months earlier by the Critzers and Tung. While, in a superficial sense, this argument may seem plausible — because the later written agreement incorporated the essential terms that were recited in January and in some sense merely represented the formalized agreement that often follows after the parties reach an oral settlement of a case at a settlement conference — there are very real differences between the written agreement and the prior oral Settlement agreed to by three of the parties. These include the following provisions found in the written agreement that are not in the oral Settlement: (1) the release does not apply to a related civil writ action; and (2) any ambiguity or dispute about the interpretation of the agreement is to be construed to the fullest extent possible as effecting a release of the Critzers’ claims (i.e., a clause favoring defendants). Also, the provision in the written agreement concerning Judge Kleinberg retaining continuing jurisdiction is significantly broader than what was recited in the oral Settlement.
13
Accordingly, because there were differences between the oral Settlement and the terms of the written settlement agreement later signed by the HOA and Enos, unlike the circumstances in
Elyaoudayan
“[a]ll parties [did not] agreeQ to the settlement in one form or the other or both.”
(Elyaoudayan, supra,
Finally, the HOA argues in its supplemental letter brief that the HOA’s personal consent was not needed to enforce the settlement because the HOA was being defended under a general liability insurance policy, and it is generally the case that “the named party does not have the right to consent to any settlement made on its/his/her behalf.” In support of this position, the HOA cites
Fiege
v.
Cooke
(2004)
There are three problems with this argument. First, the HOA does not cite to any portion of the record that demonstrates that the HOA was being defended under a general liability insurance policy under which the HOA gave its insurer the right to settle without the HOA’s consent and the right to bind the insured to the settlement. Second, the record from the Settlement recited on January 30, 2008, does not reflect the agreement of the insurer (let alone the insured, HOA) to its terms. It is unclear whether the insurer was even present in court when the terms were recited. Thus, even were the record to have demonstrated that the HOA was insured under an insurance policy that permitted settlement by the insurer alone, there was no consent by the insurer. (Cf. Fiege, supra, 125 Cal.App.4th at pp. 1355-1356 [concluding that insurer agreed to oral settlement when its representatives were in court, heard the settlement recited, and did not object after the court asked if anyone had addenda or disagreements with its terms].) Third, even if Fiege applied here to eliminate the problem of the absence of the HOA’s personal consent, the HOA’s argument does not address the problem of the absence of Enos’s personal consent to the oral settlement.
We therefore conclude that the oral Settlement recited in court on January 30, 2008, could not be enforced under section 664.6 because it was not personally consented to by two of the parties.
B. Possible Forfeiture of Contention
The absence of all parties’ consent to the Settlement and the consequent enforceability issue notwithstanding, we must consider whether any challenge that the Critzers may raise to the court’s order on this basis is forfeited. This requires a review of the Critzers’ arguments both below and on appeal.
In their written opposition to the HOA’s motion to enforce below, the Critzers did not argue that the Settlement was unenforceable because of the absence of consent by the HOA and Enos. Their opposition was to the effect that (a) the proposed settlement language in the formal settlement documents
On appeal, the Critzers observe in passing that “[n]either Enos nor the HOA were [sic] present at the time of the January 30, 2008 hearing. . . . Nor did the HOA consent to all of the terms at that time through its counsel, but rather agreed to have its [bjoard of [djirectors consider some of the terms for approval at a later meeting. ... Both the HOA and Enos subsequently signed off on the enlarged written settlement agreement which the court directed the HOA’s attorney to draft. . . .” Further, although the Critzers’ position here is that the January 30 Settlement was “skeletal” and that the parties all contemplated that further “specific terms and conditions [needed] to be fleshed out by counsel in subsequent discussions,” they do not address frontally the issue that we have discussed above: namely, whether the failure of all parties to consent to the terms of the Settlement, of itself, precludes enforcement under section 664.6. But the Critzers do note: “Moreover, because two of the defendants were not present and thus never stipulated to the settlement read into the court record — but later signed a document containing numerous additional terms — they cannot be said to have agreed to the same provisions as the other parties. . . . Since the parties here did not all agree to the same terms, [section] 664.6 is, as a matter of law, inapplicable to the ‘agreement’ which defendants seek to enforce. . . .”
It is a fundamental proposition that “ ‘[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . .’ [Citation.]”
(Doers
v.
Golden Gate Bridge etc. Dist.
(1979)
Here, although the Critzers could have been more expansive in their discussion of whether the absence of consent by all parties precluded enforcement of the Settlement under section 664.6, we conclude that they raised the issue sufficiently below and before this court to preclude its forfeiture. Moreover, “when the issue involves undisputed evidence and raises a pure question of law, we may consider it for the first time. [Citation.]”
(Burckhard v. Del Monte Corp.
(1996)
C. Conclusion
The fact that not all of the parties gave their personal consent to the Settlement precluded the court from granting a motion to enforce under section 664.6, even though the Critzers themselves personally consented to the oral Settlement.
(Harris, supra,
The order granting the motion to enforce settlement pursuant to section 664.6, as amended to constitute a final appealable judgment
(Hines v. Lukes, supra,
Rushing, P. J., and Elia, J., concurred.
Notes
Further statutory references are to the Code of Civil Procedure unless otherwise stated.
The respondents herein are the HOA, Enos and Tung. Only the HOA filed a brief; Tung filed a joinder in that brief, and Enos submitted a letter to this court in which he “concur[red], in its entirety, with the [HOA’s] responding brief.” For simplicity, we will refer to the contentions in response to the appeal as being those of the HOA.
The record includes only a proposed (but signed) second amended complaint that was attached as an exhibit to the Critzers’ motion for leave to file that pleading, as well as answers to the second amended complaint of the HOA, Tung, and Enos that were filed after the date noticed for hearing on said motion. We therefore infer that the court in fact granted the Critzers’ motion and that the second amended complaint was the operative pleading.
The Critzers filed a separate petition for writ of mandamus that involved the defendants herein, as real parties in interest, and the City of Cupertino, as defendant, that concerned the City’s approval of the building permit for the installation of Enos’s window. An appeal was taken from the court’s denial of the writ petition and we affirmed the judgment in that other action in
Critzer
v.
City of Cupertino
(Dec. 21, 2009, H032801) (nonpub. opn.). We have taken judicial notice of our opinion in that other suit because it “help[s] complete the context of this case.”
(Flatley
v.
Mauro
(2006)
We use “Settlement” as a term of art to refer to the purported oral settlement of the parties recited in open court on January 30, 2008. In using this term, we do not imply that the
Although there does not appear to be a docket entry for its filing in this action, the January 30 order, for reasons that are unclear, nonetheless appears in the clerk’s transcript in this case.
Indeed, since an appeal was then pending in this court in that related action
(Critzer v. City of Cupertino, supra,
H032801), the trial court lacked jurisdiction at the time to enter an order such as the one at issue here. (See § 916;
Varian Medical Systems, Inc. v. Delfino
(2005)
The record is silent as to whether the February 23 notice of appeal was filed prior to the February 23 order. Were this the case, it could be argued that the appeal notice divested the trial court of jurisdiction to enter the February 23 order. (See § 916.) It is clear, however, that the trial court originally intended to enter its order in this case on January 30, 2009, and that, but for an erroneous caption and case number, this would have occurred. Therefore, since it is clear that the appellate challenge is in substance to the misfiled January 30 order, and although neither the February 23 order nor the amended order of February 25 specifically recited that its entry was nunc pro tune, we will deem both orders to have been entered nunc pro tune as of January 30, 2009. (See
Norton
v.
City of Pomona
(1935)
The HOA cites no authority for this proposition and we therefore disregard it.
(Dabney
v.
Dabney
(2002)
Both parties acknowledged in their briefs that not all parties gave their formal consent at the time to the oral Settlement, but they did not elaborate on the potential legal effect of this circumstance upon the enforceability of the Settlement under section 664.6. Accordingly, we requested that the parties submit supplemental letter briefs on both the substantive issue and on whether the question should be deemed forfeited. We have considered those supplemental briefs in reaching our conclusions in this opinion.
In so holding, the court observed that there are procedural devices other than a motion under section 664.6, such as summary judgment or a separate action, that may be available for the enforcement of a settlement.
(Levy, supra,
The respondent’s brief filed by the HOA is noncompliant in that it fails to contain any proper citations to the appellate record — either the clerk’s or reporter’s transcript — supporting matters referred to in the court below. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [matters referenced from the record in appellate briefs must be supported “by a citation to the volume and page number of the record where the matter appears”].) In instances where an appellate briefs noncompliance with this rule is substantial, the court may order the brief stricken.
(Doppes v. Bentley Motors, Inc.
(2009)
In the oral Settlement, it was recited: “In the event there is a dispute as to the opaqueness and design of the window, it will be referred to [Y]our Honor for final adjudication on that issue.” It was further recited: “The Court again will retain jurisdiction to effectuate the terms of the settlement, again, on the issues of the opacity of the glass as well as the design if there is a dispute.” The written agreement signed by the HOA and Enos, on the other hand, provided: “The Santa Clara County Superior Court, the Honorable James Kleinberg, shall have continuing jurisdiction over the parties and this litigation to finalize, execute and enforce the terms and conditions of this release. Further, the court shall retain jurisdiction to decide any issues regarding the opaqueness of the proposed glazing for the awning window to be installed and the design of such glazing should the parties be unable to reach an agreement. The Court shall also retain jurisdiction to resolve any disputes on the type of lattice tresses through noticed motion.”
We summarily deny the HOA’s separate motion for sanctions pursuant to California Rules of Court, rule 8.276, in which the HOA contends that the Critzers and their counsel are pursuing an appeal that is frivolous. In light of our conclusion that the matter must be reversed, the appeal herein is not frivolous.