Thе parties to a hastily drawn Code of Civil Procedure section 99 8
1
settlement agreement found themselves in litigation concerning its meaning. After numerous motions, hearings and court orders, the defendant filed an appeal from an order interpreting the judgment encapsulating the section 998 settlement agreement. The defendant requests this court to resolve once and for all just one issue out of the portly ball of wax previously at issue in this complex employment litigation: Does the lump sum payment required by the judgment include an amount for retirement benefits, or are continuing retirement benefits to be provided to the plaintiff under the judgment provision requiring the defendant to continue employment benefits? The judgment is clear and unambiguous. Paragraph 2 thereof requires the defendant to continue to provide specified employment benefits, including retirement benefits, to the plaintiff. "Consequently, the amount the
I
Facts
Donald R. Roden (Roden) was hired as president and chief operating officer of Bergen Brunswig Corporation (Bergen) in 1995 and he became president and chief executive officer in 1997. Roden and Bergen signed an employment agreement in 1995. It provided Bergen could not terminate Roden, except for cause, or upon three years’ notice, and provided substantial damages to Roden on termination without cause.
On November 3, 1999, Bergen terminated Roden, without cause. For some time, Bergen continued paying Roden his salary and continued his participation in company benefit plans. Roden filed suit against Bergen, for breach of contract, intentional interference with prospective economic relations, slander, intentional infliction of emotional distress, and other causes of action. Roden sought not only benefits
The parties developed strained relations and were interested in resolving Bergen’s remaining financial obligations under the employment agreement in less than three years. Bergen had a special incentive to resolve the matter quickly, since it was obligated to pay Roden’s attorney fees in the event of a dispute under the employment agreement, pursuant to subsection 13(d) thereof. The parties discussed reducing certain benefits to present value. After lengthy negotiations, Bergen made a section 998 settlement offer and Roden accepted it.
The rancor only increased thereafter. Bergen had dashed off a stunningly brief offer. After Roden had accepted it, Bergen realized what petty few terms were contained therein and that more needed to be said, to make certain the parties agreed as to all the points not articulated in the offer. Roden resisted any attempts at clarification and filed an application for entry of judgment. Roden prevailed on that application.
Bergen followed with a motion to set aside the judgment, which was denied. Roden later filed a motion to enforce the judgment, and the court entered an order favorable to Roden. Bergen filed a motion for reconsideration, which was denied, and then an appeal from the order interpreting the judgment.
II
Discussion
A. Principles of Interpretation and Standard of Review
We apply general contract principles to the interpretation of a section 998 judgment.
(Lanyi
v.
Goldblum
(1986)
In the interpretation of the contract, “parol evidence is only admissible if the contract terms are ambiguous. [Citation.]”
(Appleton v. Waessil
(1994)
In reviewing the trial court’s construction of the contract, and thus its interpretation of the judgment, several different standards of review may
apply, if a party offers parol evidence to aid in interpretation.
(Winet
v.
Price
(1992)
B. Analysis
1. Language of Offer and Employment Agreement
Bergen’s June 30, 2000 settlement offer, which Roden accepted, provided in relevant part, “Pursuant to California Code of Civil Procedure Section 998, Bergen Brunswig Corporation hereby offers to have judgment entered on plaintiff’s First Amended Complaint on the following terms: [f] 1. In favor of plaintiff in the amount of $5,000,000, less legally required deductions. [^|] 2. Continuation of the benefits provided in Sectiоn 5(d), (e), and (i) of his Employment Contract, ffl] 3. Reasonable attorney fees and costs in an amount to be determined by the Court.” Those three terms were reiterated in the judgment.
A number of questions arose as to the scope and interpretation of the judgment. The only issue on appeal is whether benefits payable under Bergen’s supplemental executive retirement plan (SERF) were reduced to present value and incorporated into the $5 million lump sum payment under paragraph 1 of the judgment, as Bergen contends, or whether Roden was to have continued SERF participation pursuant to paragraph 2 of the judgment, as Roden contends.
“A contract must bе ‘interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting’ (Civ. Code, § 1636), and where, as here, the contract is in writing, ‘the intention . . . is to be ascertained from the writing alone, if possible . . . .’ (Civ. Code, § 1639.)”
(Brinton
v.
Bankers Pension Services, Inc.
(1999)
Subsections 5(d), (e) and (i) of the employment agreement provide as follows: “(d) Employee Benefit Programs. The Executive shall be entitled to participate in all employee health and benefit programs of the Company from time to time in effect for senior executives of the Company . . . , including, but not limited to, health, life, disability and dental insurance and retirement plan benefit programs, subject to a determination of Executive’s eligibility under the terms of said plans and otherwise in accordance with their respective terms. [^|] (e) Automobile Allowance. The Company shall elect to provide to the Executive (1) a minimum automobile allowance of $800.00 per month, ... or (2), in lieu of an automobile allowance, an automobile which will be owned by the Company. ... [If] ... [1] (i) Other. The Executive shall be entitled to receive and/or participate in all other benefits and programs made available, from time to time, to other sеnior executives of the Company . . . .”
The language of the employment agreement is clear. Subsection 5(d) thereof specifically provides that Roden may participate in the company retirement plan benefit programs, and Bergen does not dispute that the benefit at issue is a retirement plan benefit. Inasmuch as paragraph 2 of the judgment requires the continuation of subsection 5(d) benefits, and subsection 5(d) addresses retirement benefits, the resolution of retirement benefits is covered by paragraph 2 of the judgment, not paragraph 1.
2. Extrinsic Evidence
(a) introduction
The plain language of the judgment and employment agreement notwithstanding,
Bergen requests us to consider extrinsic evidence showing that Roden was aware of this intention before the section 998 offer and acceptance were filed
with the court and judgment was enterеd and before the hearing on the motion to set aside the judgment. It argues the evidence is admissible because the settlement agreement is reasonably susceptible to more than one interpretation and the evidence proves that the SERF payment was intended to be included in the lump sum payment. (See
Appleton
v.
Waessil, supra,
The evidence Bergen seeks to have considered includes a December 29, 1999 section 998 offer that had been rejected, certain correspondence between the parties both before and after the June 30, 2000 section 998 offer was accepted, certain declarations, and excerpts from the transcript of the hearing on the motion to set aside the judgment. The trial court rejected most of the evidence based on relevance or hearsay grounds or on Evidence Code section 1152. 2 Whether the particular evidentiary rulings as to each individual item of evidence were correct, we need not decide. Even were we to consider all the evidence Bergen sought to put before the court, the outcome would be the same.
(b) presettlement writings
On December 29, 1999, Bergen sent Roden a section 998 settlement offer. In that offer, Bergen specifically itemized amounts offered for base salary, bonus and SERF benefits and provided the methods of calculation. The offer included a $1,688,363 lump sum amount for the SERF benefits. In addition, the offer specified that health, life and income protection benefits would be continued in accordance with their terms and Bergen would continue to provide the automobile allowance. It also specifically addressed stock options, attorney fees, Roden’s outstanding company loan, and other matters.
By contrast, the June 30, 2000 settlement offer did not mention the SERF
Next, after the June 30, 2000 settlement offer had been sent, but before it was accepted on July 13, 2000, Bergen sent a letter dated July 10, 2000, to Roden individually, not to his attorney. That letter made no reference to the pending settlement offer, but rather was made in response to a May 31 letter from Roden to Bergen. Enclosed with the July 10, 2000 letter was a check in the amount of $1,980,808.73, representing a total amount of $3,591,493, less certain deductions and offsets. The letter and payment were sent “given [Roden’s] request” that Bergen pay him then the full amount owed under the employment agreement. The letter also indicated Bergen’s desire to cut off the accrual of further attorney fees. The letter explained that the $3,591,493 amount included $1,880,697 for the SERF benefit. It also mentioned therein the continuation of benefits under subsections 5(d), (e) and (i) of the employment agreement.
There was no explanation of how the July 10, 2000 letter related to the pending June 30, 2000 settlement offer. There was no indication of whether the $3,591,493 amount referenced in the July 10, 2000 letter would be credited to the $5 million lump sum specified in the June 30, 2000 settlement offer if the check were cashed and the June 30, 2000, settlement offer were accepted. There was no hint as to whether the July 10, 2000 letter was intended to be a settlement offer that superseded the June 30, 2000 offer. Last, there certainly was no statement that the $1,880,697 SERF benefit amount, or for that matter any of the other amounts referenced in the July 10, 2000 letter, correlated in any way to the pending offer of June 30, 2000. ’Twas a puzzlement.
(c) postsettlement writings
Bergen’s chairman, Robert Martini, who had signed the July 10, 2000 letter, provided a retroactive explanation of the correlation in an August 17, 2000 declaration. In that declaration, he stated that his intention was to provide Roden with two alternatives. Roden could either decline the June 30, 2000 offer, accept the check, and continue the litigation (to see if he could obtain a greater total recovery that way), or accept the June 30, 2000, offer “under the terms which Bergen intended, thereby ending the litigation . . . .” Furthermore, Martini’s intention with respect to the June 30, 2000 offer was to provide $3,591,493 for settlement of salary, bonus and SERF benefits, plus an additional $1,408,507 to cover all additional claims under Roden’s first amended complaint.
If indeed Bergen intended to present alternative offers, why would Roden assume that the deal points contained in the July 10, 2000 offer were
intended to be incorporated retroactively into the provisions of the alternative June 30, 2000 offer? Bergen offers no evidence of any communications made before the June 30, 2000 offer was accepted stating that the
In addition to the Martini declaration, Bergen offers other extrinsic evidence. A series of postacceptance communications between counsel for the parties shows that Bergen suddenly became alarmed at the scanty provisions to which the parties had agreed. There were several issues Bergen sought to address after the fact, only one of which was the SERF benefit. Concerned as to the deal that had been struck, Bergen attempted to bootstrap itself into a better position by “clarifying” the contract terms before the court entered judgment. It sent Roden a letter detailing the provisions as it wished they had been written and telling Roden that if it sought entry of judgment it would be agreeing to the “clarified” terms. Roden rebuffed Bergen’s efforts to unilaterally dictate new terms.
We agree with the trial court that the postacceptance communications are irrelevant to the determination of the intent of the parties as of the date of acceptance, and the meaning of the agreement as of that date.
(Pazderka v. Caballeros Dimas Alang, Inc.
(1998)
3. Application for Entry of Judgment
Roden filed an application for entry of judgment. In Bergen’s response to the application, it stated there was “absolutely nothing left” to be decided. It also suggested that any remaining issues could be resolved by additional negotiation or noticed motion. Bergen further stated: “On the other hand, if Plaintiff did not mean to accept the offer as it now has been clarified for him, then there was never a meeting of the minds. Plaintiff is thus free not to file his acceptance, and Bergen will not contend his prior document is enforceable. In that case, Plaintiff can simply take the $3,591,943 payment sent him on July 10 and proceed with the litigation to try to get more.” In essence, Bergen attempted to unilaterally dictate that Roden not file the acceptance of the June 30, 2000 settlement offer unless it agreed to the additional terms Bergen provided postacceptance by way of “clarification.”
At the hearing on the application, the court remarked that it was “painfully apparent that the judgment itself [had] some terms in it that [needed] to be addressed.” However, it had decided “to enter the judgment in accordance with the offer and acceptance, with the understanding that that [was] simply a ministerial act and that both sides would then be able to address any issues they [thought were] still open for discussion, once the judgment [had] been entered.” It was madе clear at the
4. Motion to Set Aside Judgment
Bergen filed its motion to set aside the judgment. In support of that motion, Bergen stated that if Roden understood Bergen’s offer as Martini intended, then there was a meeting of the minds and the motion would be withdrawn. Bergen further stated that if Roden had a different understanding, then there was no meeting of the minds, and the judgment was entered based on mistake, inadvertence, surprise, or excusable neglect. The court held a lengthy hearing on the motion.
At the beginning of the hearing, the cоurt remarked that the parties had not briefed the issue of the continuation of benefits under subsections 5(d), (e) and (i) of the employment agreement and inquired as to whether there was any dispute concerning them. Roden’s attorney indicated there was no dispute as far as he knew. Bergen’s attorney then remarked that the insurance benefits continued in place. The court then said it appeared the parties agreed and there was nothing to be decided in that respect. The parties concurred with the court’s assessment.
Later in the proceedings, the court remarked that, “The 998 offer in the mind of the court. . . offers . . . that a judgment be entered for $5,000,000, minus legally required deductions . . . , plus the continuation of some health and insurance benefits and plus reasonable attorneys’ fees and costs to be determined by the court. That’s really the extent of it.” Later still, the court stated, “It seems to me then . . . , that the continuation of benefits is not in dispute. They’re to continue for the length of the time that’s contemplated under the employment agreement as expressed in [subsections] 5(d), 5(e) and 5(i). And there appears to be no question or dispute at [this] time as to the nature or duration of those benefits.” The court took the matter under submission and ultimately denied the motion.
It would appear that after the ruling each party believed it had prеvailed. Roden was content because the judgment had not been set aside. Bergen believed all was well because it had stated from the beginning that if everyone agreed with its interpretation of the June 30, 2000 offer and resulting judgment, then there was no need to set the judgment aside. Based on the above quoted exchange on the record, Bergen thought the motion had been denied because, indeed, everyone agreed with its interpretation. Consequently, Bergen did not file an appeal from the postjudgment order. 4
While the above referenced discussion on the record at the hearing on the set aside motion can fairly be interpreted as Bergen suggests, it need not be. The judge indicated the parties had not specifically briefed subsections 5(d), (e) and (i) of the employment agreement and asked if they had any dispute “about what those constitute. . . .” While Bergen may have thought it evident the court was asking if the parties were in agreement on whether the SERF benefits would be paid out under paragraph 1 of the judgment or paragraph 2 of the judgment, Roden may not have interpreted the question exactly that way. He could have interpreted the question as asking simply whether the parties agreed as to which benefits were addressed in section 5, not how the judgment reference to section 5 was to be interpreted.
Bergen’s counsel stated insurance benefits would continue “until the conclusion of the contract in November ’02,” and Roden’s counsel agreed. Bergen, emphasizing the reference to insurance benefits, may have viewed this as Roden’s agreement that only insurance benefits would continue under paragraph 2 of the judgment. But Roden, focusing on the matter of duration, may have viewed this as simply an acknowledgment that the section 5 benefits, such as insurance, would continue until November 2002.
Moreover, there are other portions of the transcript which may be construed as showing that the parties continued to pass like ships in the night, even at the hearing. Each party indicated a belief that the terms of the June 30, 2000 settlement offer were perfectly clear and that as long as the other agreed, thеy had a deal. But each party may have thought the other had finally come around to its viewpoint, when in fact neither party had capitulated. This possibility was apparent to the trial court, as reflected in its remarks at a subsequent hearing, which we will discuss below.
5. Motion to Enforce the Judgment
Some months after the order denying the set aside motion had been entered, Roden realized that Bergen was not complying with the judgment as he interpreted
The court held yet another lengthy hearing. At that time, the court explained its viewpoint of the colloquy on the record at the prior hearing on the motion to set aside the judgment. The court stated with reference to subsections 5(d), (e) and (i) of the employment agreement, that “what the provisions say in terms of their wording is not disputed. And that’s what the court had in mind ... at the time of that previous hearing.” (Italics added.) The court further clarified that it had believed that the interpretation of those provisions was going to be a continuing issue and that it had never thought that the parties agreed on the effect and the interpretation of subsections 5(d), (e) and (i).
Ultimately, the court ruled in favor of Roden. In its formal order, the court found that, the way the employment agreement was written, once notice was given that Roden was terminated, his contract nonetheless continued for three years from that point. In other words, irrespective of whether Bergen chose to continue receiving Roden’s services, he was treated as if he continued as an executive employee. Thus, he remained eligible for benefits under subsections 5(d), (e) and (i). The court also found that the $5 million lump sum payment required under paragraph 1 of the judgment did not include any of the continued SERF benefits.
C. Conclusion
We cannot say the court erred in its interpretation. The plain language of the judgment and the employment agreement support the pоstjudgment order. Bergen agreed to pay a $5 million lump sum to get rid of the litigation, and to continue the section 5 employment benefits, including retirement benefits. The language is clear and unambiguous. It is not reasonably susceptible of the interpretation Bergen suggests. Thus, we need not consider Bergen’s extrinsic evidence.
(Appleton
v.
Waessil, supra,
The presettlement communications may be construed as either helpful or harmful to Bergen’s position, but we view them as being more harmful than helpful. The postsettlement communications are irrelevаnt. Bergen’s postacceptance effort to aggrandize the settlement terms is unavailing. As for the colloquy on the record at the hearing on the set aside motion, the trial court is in the best position to make a finding on the representations of counsel. The record supports the court’s conclusion that the parties never really reached agreement at the hearing. It also supports the court’s interpretation of the judgment.
“When determining whether the trial court has the discretion to grant relief [under Code of Civil Procedure section 473, subdivision (b)], ‘ “. . . the court inquires whether ‘a
reasonably prudent person
under the same or similar circumstances’ might have made the same error . . . .” [Citation.]’ [Citation.] ‘The “reasonably prudent person standard” . . . gives an attorney the benefit of such relief only where the mistake is one which might ordinarily be mаde by a person with no special training or skill.’ [Citation.]”
(Pazderka
v.
Caballeros Dimas Alang, Inc., supra,
The parallels between the case before us and
Pazderka v. Caballeros Dimas Alang, Inc., supra,
Zamora v. Clayborn Contracting Group, Inc.
(2002)
D. Attorney Fees and Sanctions
Subsection 13(d) of the employment agreement states: “The Company shall pay to the Executive all reasonable attorneys’ fees and necessary costs and disbursements incurred by or on behalf of the Executive in connection with or as a result of a dispute under this Agreement, whether or not the Executive ultimately prevails. . . .” Consequently, the judgment entered against Bergen included, in paragraph 3 thereof, an award of reasonable
In addition, Roden contends Bergen’s appeal is utterly frivolous and suggests that this court, sua sponte, should sanction Bergen. We decline to do so.
III
Disposition
The postjudgment order is affirmed. Roden shall recover his attorney fees and costs on appeal.
Rylaarsdam, Acting P. J., and Aronson, J., concurred.
Notes
All subsequent statutory references are to the Code of Civil Procedure unless otherwise stated.
Evidence Code section 1152, subdivision (a) provides: “Evidence that a person has, in compromise . . . , furnished or offered or promised to furnish money ... to another who . . . claims that he or she has sustained . . . loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”
The parties make no argument that the court was without authority to order entry of judgment. (See
Saba v. Crater
(1998)
Roden attempts to make much of the fact Bergen did not appeаl from either the judgment or the order denying the set aside motion. But Bergen properly challenged the judgment by way of the motion to set aside.
(Pazderka v. Caballeros Dimas Alang, Inc., supra,
62 Cal.App.4th at pp. 667-668.) As for the minute order on that motion, given the manner in which Bergen’s motion to set aside was phrased, the lengthy hearing and the various exchanges on the record, Bergen understandably thought it had gotten the relief sought, i.e., an agreement that the judgment would be interpreted as Bergen thought it should be. When the parties later found out they still disagreed as to the interpretation of the judgment, Roden sought relief. The matter was adjudicated and a formal court order interpreting that judgment was entered. That order contained findings аnd a detailed interpretation of the judgment that the parties had not received previously. Moreover, the order itself stated it was “a final Order as to the matters resolved above, and thus an appealable Order on the date entered.” In ascertaining whether a decree is final and appealable, the substance and effect of the adjudication is determinative.
(Belio v. Panorama Optics, Inc.
(1995)