Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. VFLVS030502 David A. Williams, Judge. Reversed.
Nancy Siegrist, in propria persona, for Appellant.
Law Offices of John J. Harris and John J. Harris for Respondent.
OPINION
RICHLI, J.
In this marital dissolution proceeding, the trial court granted Christopher Siegrist’s motion to enforce an alleged oral settlement agreement against Nancy Siegrist; it then entered judgment accordingly. Nancy argues that she never actually agreed to the settlement. We find insufficient evidence that Nancy stipulated to settlement before the court, as Code of Civil Procedure section 664.6 requires. Hence, we will reverse.
I
FACTUAL AND PROCEDURAL BACKGROUND
Nancy and Christopher were married in 1986.
On August 17, 2004, Nancy filed this marital dissolution proceeding. Although originally represented by counsel, she went in propria persona about a year later.
On April 19, 2006, the trial court held a mandatory settlement conference. In Christopher’s brief for the conference, he claimed that Nancy had agreed to “settle the case” but had then “backed out.” He included a proposed judgment embodying the terms of the supposed settlement.
In chambers, and without a court reporter, the trial judge met first with Christopher and his attorney. He then met separately with Nancy and two of her friends.
After that, in open court, and on the record, the trial court stated: “Let’s go over some of the terms of what we’ve agreed upon so far.” It proceeded to recite settlement terms on the record. Christopher’s counsel asked some questions and stated some additional terms.
Nancy did not say much. She provided some information regarding a total of $17,000 that she had charged on a Capital One credit card. When Christopher’s counsel noted that she was supposed to give an appraiser access to the family home, she said she could do so after 3:00 p.m. and on weekends. In addition, there was this exchange:
“[CHRISTOPHER’S COUNSEL]: . . . He gets his gun safe. Is that okay with you?
“[NANCY]: He can have his gun safe. What does he want a gun safe for if he’s not allowed to have a weapon?
“THE COURT: Let’s not worry about that, ma’am. We’re here to get things resolved.”
The trial court concluded by instructing Christopher’s counsel to “[w]rite it all up.” It set a further settlement conference for May 25, 2006.
On April 28, 2006, Nancy filed a motion for reconsideration. She claimed that the trial court had failed to divide the community property equally, had denied her spousal support, and had refused to allow her to obtain discovery; she asked the court to reconsider these matters.
The further settlement conference on May 25, 2006, was not reported. The minute order, however, does not reflect any discussion of settlement. It merely shows that the trial court vacated the hearing on Nancy’s motion for reconsideration and set a trial date of September 20, 2006.
In her reply brief, Nancy suggests that this was the result of some sinister conspiracy to suppress evidence. Absent a request, however, there was no requirement that a court reporter transcribe the proceedings (Code Civ. Proc., § 269, subd. (a)(1)), and there is no indication in the record that Nancy or anyone else made such a request.
On August 18, 2006, Christopher filed a motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement agreement assertedly “reached in open court on April 19, 2006.” Nancy opposed the motion, claiming that she had not entered into any settlement agreement.
The motion was set for hearing on September 19, 2006. A trial readiness hearing was also set for September 19. On September 19, the trial court stated that it had not had enough time to review the motion; it therefore continued the hearing on it to September 20. This colloquy followed:
“THE COURT: . . . I may grant their motion because we did enter in a stipulation and you agreed to that stipulation and you wanted -- the only difference was you wanted some time to see if you could refinance the house in your name rather than have it in both of your names.
“[NANCY]: I did not agree to this.
“THE COURT: You did too. I’ve got it on the record. I did read that part.
“[NANCY]: I never agreed on the record. Never.
“THE COURT: Right. And that’s one reason we set it for trial because you have the habit of coming in and saying I didn’t agree and I don’t agree. And you never have any suggestions of how to get things taken care of. So I set it for trial. And I told you, we will go forward with the trial. That I remember.”
On September 20, 2006, the trial court granted the motion. It therefore took the trial off calendar.
On September 29, 2006, Nancy filed a motion for reconsideration. She claimed again that she had not entered into a settlement agreement; this time, she submitted signed statements to that effect from the two friends who had been at the settlement conference. She also claimed that the trial judge should have been disqualified, because he was biased against her and because he had personal knowledge of disputed evidentiary facts. On November 14, 2006, the trial court denied the motion.
On December 14, 2006, Nancy filed a notice of appeal from an appealable order purportedly entered on November 14, 2006.
On January 10, 2007, the trial court entered judgment.
II
APPEALABILITY
Preliminarily, Christopher contends that the judgment is not appealable.
First, he argues that a party cannot appeal from a stipulated or consent judgment. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-400.) This argument is circular. The very issue presented is whether Nancy did, in fact, stipulate. “[A] judgment purportedly entered upon a stipulation when no stipulation authorizing such exists, or the provisions of which go beyond the terms of the stipulation upon which it purportedly is based, may be set aside on appeal, because in reality it is not a stipulated judgment. [Citations.]” (Harris v. Spinali Auto Sales, Inc. (1962) 202 Cal.App.2d 215, 217-218.)
Second, Christopher argues that Nancy has voluntarily accepted the benefits of the judgment. (See In re Marriage of Fonstein (1976) 17 Cal.3d 738, 744.) He asserts that “[she] has ownership of virtually all the community property furniture, furnishings and appliances, has had [him] paying virtually all the community property debt payments, and has had [him] paying the mortgage payment monthly on the residence awarded to her exclusively under the . . . [j]udgment.” However, he does not cite any portion of the record that would support these factual assertions (see Cal. Rules of Court, rule 8.204(a)(1)(C)), and we have not found any. Nancy denies accepting any benefits other than those to which she would be entitled even in the event of reversal. (See Fonstein, at p. 744.) Accordingly, Christopher has not established the necessary factual foundation for his argument. If it turns out that Nancy has, in fact, received benefits to which she is not entitled, Christopher has a remedy -- the trial court can order restitution. (See generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 785-788, pp. 819-822.)
We have also considered, on our own motion, whether Nancy filed a proper notice of appeal. She purported to appeal from an order entered on November 14, 2006. The only such order was the denial of her motion for reconsideration. The order granting the motion to enforce the settlement agreement was not appealable (Gregory v. Hamilton (1978) 77 Cal.App.3d 213, 215, fn. 1); hence, the denial of the motion for reconsideration of this order likewise was not appealable. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 80-82.) Nevertheless, under the rule that a notice of appeal must be liberally construed (Cal. Rules of Court, rule 8.100(a)(2)), we may deem the appeal to be taken from the appealable judgment. (Gregory, at p. 215, fn. 1.)
Admittedly, Nancy also filed her notice of appeal before the judgment had yet been entered. However, “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(e)(2).) Here, the trial court had already announced its ruling by granting the motion to enforce the settlement. Accordingly, we deem the notice of appeal, although premature, to be valid.
III
THE SUFFICIENCY OF THE EVIDENCE
Under Code of Civil Procedure section 664.6, “[i]f 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, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Italics added.) Code of Civil Procedure section 664.6 applies to proceedings under the Family Code. (Fam. Code, § 210; In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1035, 1037.) We must sustain the trial court’s ruling on a motion under Code of Civil Procedure section 664.6 if it is supported by substantial evidence. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)
The requirement that the parties stipulate in writing or orally before the court “tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]” (Levy v. Superior Court (1995) 10 Cal.4th 578, 585, fn. omitted.)
In Conservatorship of McElroy (2002) 104 Cal.App.4th 536, this court held that a nod did not constitute the requisite oral stipulation. There, the parties’ attorneys advised the trial court that there was a settlement, and they stated the terms on the record. When the trial court asked the parties if they had the same understanding, at least one of them just nodded. (Id. at pp. 546-548.) We observed: “It would be torturing the English language, the statutory language, and the intent of the Legislature to interpret a nod as an oral agreement. . . . More than an indication of assent is required. Unambiguous assent, expressed orally, is required in order to ‘minimize[] the possibility of conflicting interpretations of the settlement. [Citations.]’ [Citation.] A nod simply does not comply with the statutory requirement of oral consent.” (Id. at p. 551, quoting Levy v. Superior Court, supra, 10 Cal.4th at p. 585.)
Christopher does not argue that Nancy orally agreed to the settlement. He merely argues that acceptance of a contract can be manifested by conduct, and even -- at least when there is a duty to speak -- by silence. Although this may be true with respect to an ordinary contract, it is simply not true with respect to a settlement agreement when summary enforcement under Code of Civil Procedure section 664.6 is sought. We made that clear in Conservatorship of McElroy.
We briefly considered (despite Christopher’s failure to so argue) whether the statements that Nancy did make could be viewed as agreement. For example, she did expressly agree that Christopher could have the gun safe. She also essentially agreed that she would give an appraiser access to the home. It is even arguable that, by providing information about the $17,000 Capital One debt, she implicitly agreed to its allocation. At no point, however, did she agree to the settlement as a whole. These statements did not rise to the level of “[u]nambiguous assent, expressed orally . . . .” (Conservatorship of McElroy, supra, 104 Cal.App.4th at p. 551.)
We also note that her statements did not express an intent to be bound. Rather, she and the other participants appeared to intend that a draft settlement agreement would be prepared, which in turn would be subject to further negotiation. For example, the trial court began by saying, “Let’s go over some of the terms of what we’ve agreed upon so far.” (Italics added.) Similarly, at one point, Christopher’s counsel said that Chase had taken over Capital One, so that the Chase card and the Capital One card were “the same debt.” Nancy responded, “No, [they]’re not.” Rather than resolve the disagreement, the trial court told Nancy to “[g]ive that information” to Christopher’s counsel, adding, “You can discuss that.” It told Christopher’s counsel to “[w]rite it all up . . . .” Most significantly, the trial court concluded by setting a further settlement conference.
On September 19, 2006, although the trial court did at first say Nancy had agreed to a settlement, when she insisted she had not, it concurred, saying, “Right.” It then noted that, precisely because of her “habit” of failing to settle, it had set the case for trial and had warned her that the trial would go forward. Taking these remarks as a whole, we can only conclude that the trial court knew that the agreement it had read into the record was only tentative. It may have reasoned that she had not objected to any of the terms of the proposed settlement and that her refusal to go forward with it was purely obstreperous. Even if so, this would be an insufficient basis for summarily enforcing the settlement.
Finally, we also considered whether Nancy orally agreed to the settlement off the record. While the requisite oral stipulation must be made “before the court, ” it does not have to be on the record. At one time, Code of Civil Procedure section 664.6 did require the oral stipulation to be “on the record . . . .” (Former Code Civ. Proc., § 664.6, Stats. 1993, ch. 768, § 1, p. 4260.) Effective January 1, 1995, however, the Legislature deliberately deleted this requirement. (Stats. 1994, ch. 587, § 7, p. 2912; see also Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 3600 (1993-1994 Reg. Sess.) as amended Aug. 8, 1994.) Thus, oral agreement during an unreported settlement conference would suffice. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533-1534.)
Available at .
At the April 19 settlement conference, after meeting with Christopher and his counsel, the trial court met separately with Nancy. It is certainly possible that, during this meeting, Nancy orally stipulated to the settlement. The problem is that there is no evidence that she did. Christopher, as the moving party, had the burden of proof. (Scott v. Renz (1945) 67 Cal.App.2d 428, 431.) Because he and his counsel were not present, they could not testify to what occurred. Christopher therefore relied exclusively on the reported portion of the conference. For the reasons we have already discussed, this failed to show that Nancy orally stipulated to settlement before the court.
The two friends who were in chambers with Nancy at the time affirmatively stated that she did not orally stipulate to the settlement. Christopher waived any evidentiary objection to these witnesses’ statements. (Evid. Code, § 353, subd. (a).)
IV
ADDITIONAL ISSUES
Nancy raises four additional contentions.
First, she contends that the judgment did not divide the community property equally. Second, she similarly contends that it did not award her sufficient spousal support. Because we are reversing the judgment on another ground, these contentions are moot.
Third, she contends that the trial court erroneously denied her discovery. However, while she complained from time to time about not receiving discovery, she never actually brought a discovery motion; a fortiori, the trial court never made any ruling denying her any discovery. Hence, “there is simply no ruling for us to review. A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. [Citation.]” (Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
Fourth and finally, she argues that the trial judge was biased against her. She forfeited this point by not raising it under a separate heading or subheading. (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17.) She also forfeited it by failing to bring a motion to disqualify the trial judge. (Code Civ. Proc., § 170.3, subd. (c); Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218.) In any event, this issue is not cognizable on appeal; it can be reviewed, if at all, only on a prompt petition for writ of mandate. (Code Civ. Proc., § 170.3, subd. (d).) On remand, should she so desire, she will have a remedy under Code of Civil Procedure section 170.6, subdivision (a)(2).
V
DISPOSITION
The judgment is reversed. Nancy shall recover costs on appeal against Christopher.
We concur:
McKINSTER Acting P.J., KING J.
We do not rely on these witnesses’ statements, however, because Nancy did not submit them with her opposition to the motion to enforce the settlement; she submitted them only belatedly, in connection with her motion for reconsideration. (See Code Civ. Proc., § 1008, subd. (a); see also Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 848 [motion for reconsideration not based on new or different facts where moving party knew of the facts at the time of the original ruling].)