Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC361143, Elizabeth Allen White, Judge.
Stuart W. Knight for Defendant and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis and Lawrence D. Lewis for Plaintiffs and Respondents.
CHAVEZ, J.
Defendant and appellant Daybreak Group, Inc. (Daybreak) appeals from the judgment entered against it after plaintiffs and respondents Bret Lewis and Elliot Lewis (collectively, respondents) successfully moved to enforce a settlement pursuant to Code of Civil Procedure section 664.6. We affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
BACKGROUND
Respondents filed this action against Daybreak for recovery of usurious interest, declaratory relief, injunctive relief, and quiet title on October 31, 2006. At a mandatory settlement conference on May 18, 2007, the parties settled the action. They agreed to place the terms of their settlement on the record before the trial court, in accordance with section 664.6. Before doing so, the trial court asked whether all parties were present. Daybreak was not present; however, its counsel had written authorization to act on its behalf. Respondent Elliot Lewis was present, but his brother, respondent Bret Lewis, was not. Respondents’ counsel, Lawrence Lewis, who was also respondents’ father, explained to the trial court that Bret Lewis was in Arizona with a wife who was gravely ill. Respondents’ counsel advised the court that he was authorized to act on Bret Lewis’s behalf.
Under the terms of the settlement placed on the record, respondent Bret Lewis agreed to convey to Daybreak title to certain real property in the City of Los Angeles known as the Amethyst property, and Daybreak agreed to pay off an existing loan encumbering that property. Daybreak also agreed to cancel an existing note signed by Bret Lewis and Elliot Lewis and to issue a new note signed by Elliot Lewis alone. The new note would be without recourse and would be secured by a deed of trust encumbering certain real property known as the Glendora property. Elliot Lewis agreed to make the new note a recourse loan if Daybreak agreed to acquire, in addition to the Amethyst property, two properties in Long Beach, California, known as the 55th Street property and the Stanley property, and to pay off the existing loans encumbering each of those properties.
After the settlement was placed on the record, respondents’ counsel prepared a written settlement agreement. On June 1, 2007, respondents’ counsel transmitted a draft of the settlement agreement to Daybreak’s counsel. In late June or early July 2007, Daybreak began indicating that it was dissatisfied with the terms of the settlement and making alternate settlement proposals. On July 10, 2007, respondents’ counsel sent Daybreak a letter stating that respondents wished to adhere to the terms of the settlement placed on the record.
At the time the settlement was placed on the record, the trial court set a status conference for July 19, 2007, to ensure that the settlement was being implemented. At that status conference, the trial court directed respondents to file a motion to enforce the settlement, to be heard on October 17, 2007.
Respondents filed their motion to enforce the settlement on September 14, 2007. Daybreak opposed the motion on the grounds that the settlement could not be enforced pursuant to section 664.6 because respondent Bret Lewis was not present when the settlement was placed on the record, and because the terms of the settlement were not sufficiently clear. Respondents submitted a reply brief, supported by the declaration of Bret Lewis, among other documents. In his declaration, Bret Lewis stated that he resides in Arizona with his wife, that he was not present at the May 18, 2007 mandatory settlement conference because his wife was gravely ill, and that he could not leave her unattended. Bret Lewis further stated that he had authorized his father, Lawrence Lewis (who was also acting as his attorney), and his brother, Elliot Lewis, to act on his behalf to enter into the settlement that was placed on the court record. He said he had reviewed the written settlement agreement prepared in early June 2007, and found its terms to be consistent with his understanding of the settlement placed on the record. Bret Lewis signed the settlement agreement on October 9, 2007.
On November 15, 2007, the trial court issued an order granting respondents’ motion to enforce the settlement. This appeal followed.
DISCUSSION
I. Standard of Review
We review de novo the trial court’s ruling on a motion to enforce a settlement pursuant to section 664.6 for errors of law. (Sully-Miller Contracting Co. v. Gledson/Cashman Constr. (2002) 103 Cal.App.4th 30, 35.) The trial court’s factual findings on a section 664.6 motion, including whether the parties have entered into an enforceable settlement, “‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’ [Citation.]” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)
II. Section 664.6
Section 664.6 provides: “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.”
“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.]” (Weddington Prods. v. Flick (1998) 60 Cal.App.4th 793, 809.) The statute recognizes that a settlement may be summarily enforced in either of two situations: where the parties stipulate to the terms of a settlement orally before the trial court, or in writing outside the presence of the court. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428 (Elyaoudayan).)
“[T]he term ‘parties’ as used in section 664.6 . . . means the litigants themselves, and does not include their attorneys of record.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 586, fn. omitted.) Requiring the litigants’ direct participation “tends to ensure that the settlement is the result of their mature reflection and deliberate assent. . . . It also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]” (Id. at pp. 583-585.) Nothing in the statutory language suggests, however, that “in a multiparty action, all parties must agree to the settlement in the same manner. . . . [A]s long as the parties agree to the same material terms, be it orally or in writing, the purpose of section 664.6 is satisfied.” (Elyaoudayan, supra, 104 Cal.App.4th at p. 1428.)
Daybreak contends there is no enforceable settlement because respondent Bret Lewis was not present at the oral proceedings before the trial court when the parties stipulated to the terms of a settlement. Bret Lewis’s absence at the oral proceedings does not render the settlement unenforceable, because he signed the written agreement setting forth the material terms of the settlement. Moreover, although Bret Lewis was not present at the oral proceedings before the trial court, he expressly authorized his attorney to enter into the settlement on his behalf.
The facts presented here are not materially different from those in Elyaoudayan, supra, 104 Cal.App.4th 1421, which is controlling authority in this case. In Elyaoudayan, the plaintiffs filed a lawsuit against Morad Elyaoudayan, Leo Hoffman, Hanna Hoffman, and the Hoffman’s daughter, Tina Kushner, and the defendants cross-complained against them. On the day trial was set to commence, the parties informed the court that they had reached a settlement. All of the parties were present except the Hoffmans, who were ill, and their daughter, who was caring for them. The Hoffmans’ attorney said he had authority to enter into the settlement on their behalf. After the settlement was placed on the record, the plaintiffs’ counsel drafted a proposed settlement agreement and sent it to the other parties. The agreement was executed in counterparts and was signed by all parties except Elyaoudayan, who filed a motion to set aside the stipulated settlement. The plaintiffs opposed the motion on the ground that the settlement was enforceable under section 664.6. Elyaoudayan contended section 664.6 did not apply. He maintained that because the Hoffmans were not present at the oral proceedings before the trial court, not all of the parties had entered into the oral agreement. Elyaoudayan further contended that because he had not signed the written settlement agreement, it too was unenforceable, because not all of the parties had entered into the written agreement.
The court in Elyaoudayan ruled that the settlement was enforceable under section 664.6 because the parties had agreed, either orally or in writing, to settle the action. The court concluded that the statute does not require all parties to agree to a settlement in the same manner, so long as all agree to the same material terms. (Elyaoudayan, supra, 104 Cal.App.4th at pp. 1431-1432.) The court stated: “Here, the settlement existed in two forms, oral and written. They both contained the same material terms. All parties agreed to the settlement in one form or the other or both.” (Id. at p. 1432.)
The court in Elyaoudayan distinguished Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299 (Harris), a case on which Daybreak relies to support its interpretation of section 664.6. In Harris, two of several defendants had signed a letter agreeing to settle the case. The plaintiff, who had not signed the letter, sought to enforce the purported settlement under section 664.6. The court in Harris concluded that the letter was not enforceable as a written settlement, holding that the statute’s “requirement of a ‘writing signed by the parties’ must be read to apply to all parties bringing the section 664.6 motion and against whom the motion is directed.” (Harris, supra, at p. 306.) The court in Elyaoudayan distinguished Harris as follows: “In Harris, the only arguable settlement agreement was in writing. The plaintiff sought to enforce the alleged settlement as ‘“a writing signed by the parties.”’ [Citation.] The Court of Appeal held that if a party seeks to enforce such a settlement under section 664.6, he or she must have signed the agreement. The plain meaning of the statute requires no less. . . . [¶] Harris does not require that all parties agree to a settlement in the same way -- that all must sign a writing outside the presence of the court or all must orally agree before the court. Harris does not preclude a ‘mix and match’ approach to the manner of agreement so long as all parties agree to the same material terms.” (Elyaoudayan, supra, 104 Cal.App.4th at pp. 1431-1432.)
In this case, as in Elyaoudayan, all parties agreed to the settlement in one form or another. Daybreak and respondent Elliot Lewis orally stipulated to the terms of the settlement placed on the record before the trial court. Respondent Bret Lewis expressly authorized his father, acting as his attorney, to enter into the oral settlement on his behalf. He also signed the written settlement agreement. As we discuss below, all parties agreed to the same material terms. The settlement was thus enforceable under section 664.6.
III. Enforceability of Settlement
Daybreak contends the settlement is unenforceable because the written settlement agreement included a general release that was not placed on the record in the oral proceedings. The transcript of the oral proceedings before the trial court shows otherwise. It states: “[T]he parties agree to exchange mutual general releases. The parties agree to waive Civil Code section 1042.” Both the oral stipulation and the written settlement agreement thus contain a general release.
Apart from its unsupported claim that the oral and written settlement agreements do not both contain a general release, Daybreak does not argue that the terms of the two agreements are materially different, or that the parties did not agree to the same material terms.
Daybreak also contends the terms of the oral settlement are not sufficiently clear to be enforceable because the term “recourse loan” is undefined, and because the agreement does not specify the terms and conditions under which Daybreak may acquire title to the 55th Street and Stanley properties. The term “recourse loan” is not vague or ambiguous under the circumstances presented here. Daybreak, which is in the business of making loans evidenced by promissory notes, is readily familiar with the difference between a recourse loan and a nonrecourse loan. The parties’ oral agreement adequately defines the conditions for Daybreak’s acquisition of the 55th Street and Stanley properties. The parties agreed that Daybreak would acquire the Amethyst property, pay off the existing loans encumbering that property, cancel an existing note signed by Bret Lewis and Elliot Lewis, and issue a new note signed by Elliot Lewis alone. The parties further agreed that the new note would be nonrecourse unless Daybreak also agreed to acquire the 55th Street and Stanley properties, and to pay off the existing loans encumbering each of those properties. If Daybreak agreed to acquire the 55th Street and Stanley properties, the new note signed by Elliot Lewis would be a recourse note. The terms of the parties’ agreement are sufficiently clear and the settlement is thus enforceable.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.