Opinion
F083588
06-08-2023
JESUS B. CASTANEDA, Plaintiff and Appellant, v. JAMES YATES et al., Defendants and Respondents
Jesus B. Castaneda, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra and Sean W. Lodholz, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 15CECG01086Gabriel L. Brickey, Judge.
Jesus B. Castaneda, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra and Sean W. Lodholz, Deputy Attorneys General, for Defendants and Respondents.
OPINION
MEEHAN, J.
INTRODUCTION
This appeal arises out of plaintiff's oral agreement to settle all remaining claims in the action on terms that were placed on the record before the court subject to the preparation of a written settlement agreement. Plaintiff personally agreed on the record to sign a written settlement agreement based on the oral terms recited in court, complete a payee form for settlement payment, and sign a voluntary dismissal form. Defendants were not present in court and did not appear remotely. After plaintiff's agreement before the court, the trial court set a subsequent dismissal hearing under California Rules of Court, rule 3.1385 for September 28, 2021. Between the date of plaintiff's oral agreement to settlement and the dismissal hearing, plaintiff had not signed any settlement documents.
All further references to rules are to the California Rules of Court unless otherwise indicated.
On September 27, 2021, one day before the scheduled rule 3.1385 dismissal hearing, defense counsel filed a declaration informing the court that none of plaintiff's obligations toward settlement had been performed, and served the declaration by mail. Citing Code of Civil Procedure section 664.6, defense counsel indicated that if plaintiff would not sign the settlement documents, defendants would move orally at the dismissal hearing or via written motion for judgment pursuant to the terms of the settlement. Following the September 28, 2021, dismissal hearing, the trial court issued a signed order on a preprinted form citing rule 3.1385, and dismissed the case based on an unspecified motion of defense counsel. Plaintiff now appeals.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Based on the record before us, the dismissal order was improper under either rule 3.1385 or section 664.6. The trial court had information that none of the settlement obligations had been satisfied at the time of the dismissal hearing and, given the status of settlement, reliance on rule 3.1385 to dismiss the case as a matter of case management was improper. Defendants contend on appeal that dismissal should nonetheless be affirmed under section 664.6. There is no evidence in the record that the court made any orders under section 664.6. Moreover, the record on appeal demonstrates that the basic requirements of that statute were not met-there is no evidence that defendants consented to the material settlement terms placed on the record on July 29, 2021-there is no signed writing by defendants or their counsel in the record (§ 664.6, subd. (b)), nor did defendants personally appear before the court to give their consent to the settlement (§ 664.6, subd. (a); Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1707-1708 (Johnson).) Substantial evidence that all parties consented to the settlement is a threshold requirement for enforceability under section 664.6's strict requirements, and defense counsel's presence in a representative capacity at the settlement hearing on July 29, 2021, was an insufficient method for defendants to orally stipulate to the settlement. The dismissal order was made pursuant to "[rule] 3.1385 after settlement" (capitalization omitted), does not reference section 664.6, does not incorporate the oral terms of settlement or indicate that any of those terms are being enforced, or that judgment be entered upon any such terms. Further, and importantly, plaintiff received no prior notice, in any form, of a motion under section 664.6 before dismissal was granted. Under these circumstances, we reverse the September 28, 2021, dismissal order, which we construe as a judgment, and return the matter to the trial court for further proceedings.
FACTUAL BACKGROUND
This case arises out of an incident that occurred at Pleasant Valley State Prison in February 2010. According to plaintiff's operative first amended complaint (FAC), an altercation arose when a football team that California Department of Corrections and Rehabilitation (CDCR) correctional officer Burnes was cheering for during a broadcasted game began to lose; Burnes threatened all those who were cheering for the other team. Burnes asked another correctional officer, Black, to open plaintiff's cell door, and Burnes began spraying plaintiff with "O.C. spray." Upon entering plaintiff's cell, plaintiff alleged that Burnes beat plaintiff and plaintiff's cellmate (Madrid) for over 10 minutes before Black activated his personal alarm. Plaintiff also alleged that correctional officers Pease, Mendez, Thatcher, Aguerralde, Sauceda, McCarney, Miller, Daley, McCollon, Carlson, D. May, and five others identified as Does 1 through 5, began beating plaintiff and Madrid until they believed Madrid was dead.
After the incident, officers Pease, Mendez, Burnes, Thatcher, Agueralde, Sauceda, McCarmey, Miller, Daley, McCullom, Carlson, D. May, Lopez, Mackin, Ibal, and Contreran all allegedly filed false reports to cover up what they knew was a violation of plaintiff's civil rights. Defendant James Yates, the prison warden, was allegedly aware of this incident and orchestrated a coverup of the crimes committed by all defendants. As a result of this incident, plaintiff was criminally charged and was cited administratively in February 2010 with a prison rules violation report (RVR) for attempted murder on a peace officer with a deadly weapon.
An RVR, also sometimes referred to as a CDC 115, is an RVR that documents misconduct that is "believed to be a violation of law or [that] is not minor in nature ._" (Cal. Code Regs, tit. 15, § 3312, subd. (a)(3).)
After the criminal charges against plaintiff were dismissed in 2015, plaintiff filed this personal injury action against the officers and Yates for negligence, assault and battery and filing false reports; plaintiff sought compensatory and punitive damages. A demurrer was sustained with leave to amend, and plaintiff filed the FAC on January 11, 2017. After answering the FAC, defendants filed a motion for judgment on the pleadings, which was denied. In April 2018, plaintiff filed petitions for a temporary restraining order alleging that defendants and their agents were confiscating plaintiff's legal materials, obstructing plaintiff's access to the courts, and putting plaintiff in situations for the purpose of causing him harm or emotional distress. The motion was denied on procedural grounds because plaintiff had failed to file the proper Judicial Council form and had failed to personally serve defendants.
In November 2018, defendants filed a motion for summary adjudication, which was granted in part. The trial court denied the motion with respect to plaintiff's negligence and assault and battery claims against defendants Burnes, Thatcher, and McCollum. All other claims were summarily adjudicated against plaintiff in favor of defendants, and a judgment was entered in favor of those defendants on August 7, 2019.
A settlement conference was set for July 29, 2021. At a hearing on July 29, 2021, the trial court indicated the parties had apparently reached a settlement on July 23, 2021, and were before the court to place their settlement on the record. Defendants' counsel indicated to the court that they had "reached an agreement in principle," but they were "waiting for [plaintiff] to call his criminal attorney or speak with his criminal attorney just to make sure he agrees with the settlement, so we wanted to ask [plaintiff] if he had an opportunity to do that." Plaintiff indicated he wanted to speak to his parole attorney before agreeing to the settlement, so the trial court made arrangements with prison officials for plaintiff to speak with his attorney telephonically, and the matter was continued until the afternoon.
Plaintiff several times requested a continuance to consult with his parole counsel and expressed that he did not wish to speak to him during the conference. The court and defense counsel were persistent in efforts not to delay the proceedings and plaintiff ultimately acquiesced to the telephone call. Parole counsel acknowledged that plaintiff was hearing some of the proposed settlement terms for the first time that day. Although parole counsel did not represent plaintiff in the pending action, he opined on the merits of the settlement and advised plaintiff to accept it, which plaintiff eventually did. Because we resolve this appeal on other grounds, we do not reach plaintiff's claim that he was coerced into settling.
When defense counsel and plaintiff appeared before the court later that day, plaintiff's parole attorney, Mr. Carbone, also made a telephonic appearance. The terms of the settlement were recited; plaintiff agreed to (1) sign a written settlement agreement and release based on the specific terms stated on the record; (2) sign a payee form; and (3) voluntarily dismiss the case. In return, defense counsel indicated that CDCR would "reduce Plaintiff's [RVR], log number 10-FC-02-018, from attempted murder of a peace officer with the use of a deadly weapon to battery on a peace officer without great bodily injury. CDCR would memorialize the reduction of the [RVR] by placing into Plaintiff's central file a note, addendum, errata, or other document sufficient to memorialize the reduction." CDCR promised to use good faith efforts to accomplish these obligations within 180 days from the date plaintiff signed all the agreed-to documents and dismissed the case.
After plaintiff expressly agreed to these terms, plaintiff was informed by the court the settlement documents would probably come to him within the next two or three weeks, and that although there would be "some legalese in there," the terms that he had agreed to on the record were the essential terms. When asked if he had anything further to add or any questions to ask, plaintiff said he did not. The court indicated that it was typical to set these cases for a dismissal hearing "just to make sure that cases don't slip through the cracks."
The court set a dismissal hearing for September 28, 2021, pursuant to rule 3.1385, stating on the record that it was informing the parties that if the dismissal was filed before that date, the hearing would be taken off calendar. The court then addressed plaintiff and indicated as follows: "So, [plaintiff], the dismissal, I'm hopeful, will be filed well before that date but you can always contact the court and check. Again, if it is for any reason still on calendar work through CourtCall to appear at that, but that hearing will be set for the Court's monitoring of the case just to make sure that the dismissal is filed."
On September 27, 2021, defense counsel filed a declaration in support of the dismissal hearing set for the next day, which was served on plaintiff by mail. Counsel indicated that despite the settlement, plaintiff apparently had been unwilling to sign the settlement forms. As of the date of his declaration, counsel had not received any signed settlement documents from plaintiff. Counsel indicated that if plaintiff refused to sign the settlement documents, defendants would move for judgment pursuant to the terms of the settlement agreement either orally at the September 28, 2021, hearing or via written motion.
A transcript of the September 28, 2021, hearing is not included in the record on appeal. On September 28, 2021, the court issued a signed order following the hearing stating, "Defendant's counsel Motions the Court to Dismiss with prejudice as parties have settled; Court GRANTS this request. Matter is now DISMISSED with Prejudice." The order was issued on a preprinted "DISMISSAL HEARING MINUTES/ORDER" form, which cited rule 3.1385. This appeal followed.
DISCUSSION
I. Appealability
Plaintiff argues that, during the litigation, the trial court erroneously denied plaintiff's request for a temporary restraining order under section 527.6 without a hearing and the opportunity for oral argument. Plaintiff also asserts the settlement was the product of coercive pressure from Mr. Carbone, the parole attorney who specially appeared on his behalf at the July 29, 2021, settlement hearing. Plaintiff claims he had not wanted Mr. Carbone involved in the hearing, and plaintiff had told Mr. Carbone he did not agree to what defendants were offering in settlement. Additionally, plaintiff contends the September 2021 order dismissing his remaining claims after settlement was erroneous because he had no notice of the hearing.
We turn first to the appealability of these orders. A reviewing court has jurisdiction over a direct appeal only when there is an appealable order or an appealable judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by ... section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.)
A. Order Denying Plaintiff's Request For a Temporary Restraining Order
In April 2018, plaintiff filed two petitions for a temporary restraining order under section 527.6. He claimed defendants were confiscating his legal materials, threatening him, and placing him in situations in the prison for the sole purpose of causing him harm, stress, or denying plaintiff access to the courts.
While his case has been pending on appeal, plaintiff has also filed with this court three requests ostensibly seeking injunctive relief, which were summarily denied.
On June 4, 2018, the trial court issued a tentative ruling denying the petitions because plaintiff had failed to file mandatory Judicial Council form CH-100 and because defendants were required to be personally served pursuant to section 527.6, subdivision (m), but that had not occurred-they were served by mail. In its tentative order, the trial court noted a June 7, 2018, hearing date if timely requested. On June 21, 2018, the trial court adopted the tentative ruling denying the petitions for a temporary restraining order as the order of the court.
California follows the "'one final judgment'" rule, which provides that interlocutory or interim orders are not appealable, and are only reviewable on appeal from the final judgment. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293.) "Under the one final judgment rule, '"an appeal may be taken only from the final judgment in an entire action."' [Citations.] '"The theory [behind the rule] is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case."'" (In re Baycol Cases I &II (2011) 51 Cal.4th 751, 756 (Baycol).)
Section 904.1 codifies the one final judgment rule (ibid.) by stating that an appeal may be taken "[f]rom a judgment, except an interlocutory judgment." (Id., subd. (a)(1).) However, "in its remaining subdivisions[, the statute] lists various specific additional appealable orders that stand as exceptions to the general rule." (Baycol, supra, 51 Cal.4th at p. 756, fn. 3.) One express exception is found under section 904.1, subdivision (a)(6), which, like its predecessors under section 904.1, former subdivision (f) and former section 963, subdivision (2), allows an appeal "[f]rom an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction." Thus, an order refusing to grant injunctive relief sought under section 527.6 is an immediately appealable order.
Generally, a notice of appeal from a judgment or an appealable order must be served and filed within 60 days after the party is served with the judgment or appealable order. (Rules 8.100(a), 8.104(a)(1)(A)-(C).) If an appeal is not timely taken from an appealable order, the order may not later be reviewed on appeal from the final judgment. (§ 906 [appellate court is not authorized to review any decision or order from which an appeal might have been taken]; Baycol, supra, 51 Cal.4th at p. 761 &fn. 8.) "California follows a 'one shot' rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited." (Baycol, supra, at p. 761, fn. 8; see McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 [failure to appeal from appealable order precludes review of the matter on appeal from the subsequent judgment].)
The notice of appeal in this matter, although it references former section 963, subdivision (2), was filed on November 22, 2021; it is not a timely appeal of the 2018 order denying plaintiff's petitions for injunctive relief, and that order is not reviewable now. (Baycol, supra, 51 Cal.4th at p. 761, fn. 8; see Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670 ["[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction."].)
B. September 28, 2021, Dismissal Order
Plaintiff also makes claims of error regarding the trial court's September 2021 order dismissing all remaining claims with prejudice due to settlement. That order effectively constitutes an appealable judgment, and we have jurisdiction to review those contentions of error based on plaintiff's notice of appeal, which we construe liberally. Section 581d provides in part that "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes ...." The trial court's dismissal order, signed and issued on September 28, 2021, is appealable as a final judgment. (Cano v. Glover (2006) 143 Cal.App.4th 326, 328, fn. 1 [citing § 581d and holding involuntary dismissal order effected by minute order and signed by trial court is an appealable order]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [order of dismissal is to be treated as a judgment for all purposes of taking an appeal when it finally disposes of the action and prevents further proceedings as effectively as any formal judgment].)
Plaintiff's notice of appeal does not indicate which order or judgment is being appealed. However, a notice of appeal must be construed liberally, and may encompass an order not expressly mentioned when it is reasonably clear the appellant intended to appeal from the unmentioned order and where the respondent could not reasonably be misled or prejudiced. (In re Joshua S. (2007) 41 Cal.4th 261, 272.) Despite his claims related to the 2018 denial of his petitions for injunctive relief under section 527.6, it is clear plaintiff is also challenging the dismissal of his case pursuant to the trial court's September 28, 2021, order, which does not appear to have been entered as a formal judgment. Moreover, plaintiff filed a civil case information statement in January 2022 identifying the September 28, 2021, order as the judgment being appealed.
Even if the September 28, 2021, order is construed as granting a judgment of dismissal pursuant to the terms of the parties' settlement under section 664.6, as defendants urge, it is appealable. (See Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183 [so long as the effect of the order is to finally determine the rights of the parties, where a court grants a motion under § 664.6, but fails to enter formal judgment, appellate court may amend the order to include an appealable judgment].)
II. Error Dismissing Remaining Claims With Prejudice After Settlement
Defendants' counsel filed a declaration the day before the September 28, 2021, dismissal hearing indicating that plaintiff was apparently refusing to sign the settlement agreement papers or the notice of voluntary dismissal. Defense counsel indicated if plaintiff refused to sign the settlement documents, counsel would move orally at the dismissal hearing or via written motion for judgment pursuant to the terms of the settlement agreement and cited section 664.6. There is no transcript of the dismissal hearing in the record on appeal, but a dismissal order was signed the day of the hearing. The dismissal order was issued on the court's CV-35b form, entitled "DISMISSAL HEARING MINUTES/ORDER," and the preprinted text cited rule 3.1385. The order line states that "Defendant's counsel Motions the Court to Dismiss with prejudice as parties have settled; Court GRANTS this request. Matter is now DISMISSED with Prejudice." There was no reference to section 664.6 or the terms of the settlement, and the order was never entered as a formal judgment.
The order of dismissal was signed by the court and filed and thus constitutes a judgment effective for all purposes. (§ 581d.) While the dismissal order cites to rule 3.1385 and does not mention section 664.6, "'we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.'" (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.) We begin by considering dismissal pursuant to rule 3.1385.
A. Rule 3.1385(b) 1. Legal Standards
Rule 3.1385(b) provides in relevant part, "Except as provided in (c) or (d), each plaintiff ... must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff ... does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed." Rule 3.1385 is a trial management provision enacted under the Trial Court Delay Reduction Act. (Gov. Code, § 68600 et seq.) The rule is not designed to punish parties for moving slowly on their settlement, but to motivate the parties to complete their settlement without unnecessary delay, to provide additional time if there is some impediment to completion within the prescribed time, to remind the parties the court is affected by their delay in dismissal, and to permit the court to dismiss a case when the plaintiff has neglected to do so. (Irvine v. Regents of University of California (2007) 149 Cal.App.4th 994, 1001 (Irvine).) Moreover, rule 3.1385 is not intended as a means to enforce settlements. (Irvine, supra, at p. 1001.) "The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list." (Ibid.) An order dismissing a settled action pursuant to rule 3.1385 is reviewed for abuse of discretion. (Irvine, supra, at p. 1000; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498.)
Rule 3.1385(c) states that if the parties' agreement provides that dismissal is conditioned on the satisfactory completion of particular terms that are not to be performed within 45 days, the notice of settlement must state when the dismissal is to be filed. In this case, the parties' agreement did not condition dismissal on the completion of any terms that could not be performed within 45 days, even though the parties agreed that some of the terms of the
2. Notice
Plaintiff contends he was not given any notice of the dismissal hearing. "Due process requires notice before a dismissal of a case may be entered." (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 510.) "'At a minimum, such requirements include notice to the plaintiff of a motion or intent to dismiss and an opportunity for plaintiff to be heard.'" (Ibid.) Here, after the settlement was recited on the record, the court specifically informed plaintiff that a dismissal hearing was calendared for September 28, 2021, and if the dismissal papers had not been filed by that date, plaintiff was to make arrangements through CourtCall to appear at that hearing. The court also issued an order following the settlement hearing stating that the matter had settled and set a "dismissal hearing" for September 28, 2021, which was served on plaintiff. Thus, plaintiff had notice that a dismissal hearing was going to be held if the dismissal papers were not agreement-like payment and a reduction of plaintiff's RVR-were not going to be completed until after the dismissal was filed. In other words, the settlement here was not a conditional settlement within the meaning of rule 3.1385(c). filed-this was sufficient notice of the hearing itself and that dismissal of plaintiff's case would be at issue at that hearing. There was no notice deficiency.
Plaintiff notes this is not the first time that prison officials have failed to take necessary steps to facilitate his appearance at court hearings, and he points to a May 2019 declaration submitted by defense counsel indicating plaintiff had been prevented from appearing at a summary judgment hearing scheduled for March 19, 2019, due to the failure of prison officials to properly calendar his CourtCall appearance. However, plaintiff does not indicate how prison officials failed to facilitate his appearance on September 28, 2021; instead, he argues he never had notice of the hearing-a fact contradicted by the record.
3. Good Cause Not to Dismiss
Plaintiff did not appear at the September 28, 2021, hearing. Although it was not evident why plaintiff was unwilling to do so, defendants' declaration established plaintiff was purportedly refusing to perform under the settlement agreement or dismiss the case. Thus, based on the declaration, it was clear the case was not ready for dismissal under rule 3.1385: there was an apparent dispute over the settlement that had to be resolved, and none of the obligations under the terms of the agreement had been accomplished- including plaintiff signing the written agreement and release; dismissal was not the only obligation plaintiff had yet to perform. Even if the settlement agreement was binding and enforceable and plaintiff had no legally valid basis for refusing to sign the settlement documents, dismissal under rule 3.1385 was not appropriate as a method to enforce the settlement. (See Irvine, supra, 149 Cal.App.4th at pp. 1001-1002 [an alleged dispute over the binding nature of the settlement agreement, regardless whether the contention had any merit, demonstrated good cause to restore the case to the civil list].)
Irvine provides analogous guidance. That case involved physicians allegedly failing to take necessary steps for the plaintiff to maintain her priority in the queue of a separate entity that acted as a clearinghouse for distribution of organs to patients throughout the United States. (Irvine, supra, 149 Cal.App.4th. at p. 997.) The case was settled during private mediation, which resulted in a written stipulation. (Id. at p. 998.) After receiving continuances of the deadline to dismiss the case under rule 3.1385, the plaintiff filed a motion to set aside the settlement, arguing that the defendants had failed to disclose relevant and material facts; she also framed her agreement to settle as conditional and subject to her signing a final settlement agreement and release document. (Irvine, supra, at p. 999.) At a hearing on the motion to set aside the settlement, the trial court announced its tentative decision that the settlement was not conditioned on the plaintiff signing the subsequent release, and no other reason justified vacating the settlement. (Id. at pp. 999-1000.) Finding the plaintiff had failed to establish good cause to avoid dismissal under rule 3.1385, the court subsequently dismissed the plaintiff's suit pursuant to the settlement terms. (Irvine, supra, at p. 1000.)
The appellate court reversed and explained that while there are several procedural methods to resolve disputes over the enforceability of a settlement, rule 3.1385 is not among them. (Irvine, supra, 149 Cal.App.4th at pp. 1000-1001.) The court explained that unlike other settlement enforcement procedures, the only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list as an administrative matter. The court reasoned that rule 3.1385 is intended only as a case management tool, not as a means to enforce settlements, especially since it lacks the procedural safeguards built into other summary settlement enforcement proceedings. (Irvine, supra, at p. 1001.) Moreover, because the rule authorizes only dismissal of the action, as a means of settlement enforcement it would aid only defendants and provide plaintiffs no relief. (Ibid.) Since the plaintiff had alleged a dispute over whether the parties had reached a binding settlement, the plaintiff had demonstrated good cause to restore the case to the civil active list-regardless of the merits of the plaintiff's contentions about the settlement. (Id. at pp. 1001-1002.)
Here, defense counsel's declaration made clear there was an unspecified dispute regarding the settlement and that plaintiff was apparently refusing to perform under its terms or agree to dismissal of the lawsuit. Whatever the merits (or lack thereof) of plaintiff's basis for refusing to perform, it was clear that dismissal under rule 3.1385 was not appropriate at the time of the dismissal hearing: none of what plaintiff had agreed to do, including signing the written settlement agreement, had been accomplished. The trial court had before it good cause not to dismiss the case under rule 3.1385, and it was not authorized under rule 3.1385 to resolve disputes about the terms of the settlement. (Irvine, supra, 149 Cal.App.4th at p. 1001 [rule 3.1385 is not a means to enforce settlements].) To the extent plaintiff's claims were dismissed with prejudice under rule 3.1385, it was improper to do so under the specific circumstances presented here. We turn to examine whether, as defendants assert, dismissal was otherwise proper under section 664.6.
Defendants, whose counsel made an appearance at the dismissal hearing, do not discuss rule 3.1385 in their appellate brief. They maintain the trial court's September 28, 2021, order of dismissal was entered to enforce the parties' settlement pursuant to section 664.6. However, there is no transcript demonstrating defense counsel made an oral motion under section 664.6, and while the court's subsequent dismissal order indicates defense counsel made a motion at the hearing, the order does not reference section 664.6. Moreover, while plaintiff had notice of the dismissal hearing under rule 3.1385, that notice did not encompass enforcement proceedings under section 664.6. Nonetheless, we consider whether dismissal was legally proper under section 664.6 as a means of enforcing the settlement.
At the outset, it is clear plaintiff was not afforded any notice of a section 664.6 motion purportedly made at the dismissal hearing. While section 664.6 does not contain any specific notice requirement and states only that "upon motion" a court may enter judgment pursuant to the terms of the settlement (§ 664.6, subd. (a); see § 1005, subd. (a)(13) [notice under § 1005 required for other proceedings under Code Civ. Proc. that require notice]), this does not mean a motion affecting a party's substantive rights may be heard and granted with no notice whatsoever. Due process requires notice of motions affecting the substantial rights of adverse parties. (See McDonald v. Severy (1936) 6 Cal.2d 629, 631 ["The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party."]; see also People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 222 ["[I]n an adversary proceeding where an order may affect the rights of an adverse party, notice must be given to protect the adverse party's right to be heard on the issue as a matter of due process of law."].) Here, while plaintiff had notice of an administrative dismissal hearing under rule 3.1385,plaintiff had no notice that a fundamentally different matter would be addressed at the hearing involving substantive settlement enforcement issues where the validity of the agreement and its terms would be considered on the merits. The declaration defendants filed the day before the scheduled rule 3.1385 hearing was served by mail. Without any type of notice, plaintiff had no adequate opportunity to be heard. This alone dooms the dismissal order as a means of settlement enforcement under section 664.6.
Notably, at the July 29, 2021, settlement hearing, the trial court told plaintiff the dismissal hearing being set on September 28, 2021, was "just to make sure that cases don't slip through the cracks," consistent with it being a matter of case management.
Turning to the substance of the motion itself, section 664.6 empowers a court to enforce a settlement agreement through a summary procedure if certain requirements are met. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) In relevant part, section 664.6, subdivision (a), provides that "If parties to pending litigation stipulate, in a writing signed by the parties outside of 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." For a settlement to be enforceable under section 664.6, a party must first establish the settlement agreement was stipulated by the "parties" (id., subd. (a)) in a writing outside the presence of the court or orally before the court (Weddington Productions, Inc. v. Flick, supra, at p. 810).
The statute's reference to "'parties'" has long been interpreted literally to mean the litigants themselves. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) Thus, under the pre-2021 version of the statute, it was not sufficient for purposes of section 664.6 for the parties' authorized attorney of record to stipulate to the settlement-it was to be acknowledged by litigants themselves. (Levy v. Superior Court, supra, at p. 586; Johnson, supra, 38 Cal.App.4th at pp. 1707-1708 [oral settlement never acknowledged on the record by the plaintiff himself rendered settlement unenforceable under § 664.6]; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1258-1260 [oral settlement recited in court not enforceable under § 664.6 because it was not personally consented to by two of the parties].)
Effective January 1, 2021, the Legislature amended section 664.6 to clarify that "a writing is signed by a party" if it is signed by the party, an attorney who represents the party, or if the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf. (Id., subd. (b)(1)-(3); see Stats. 2020, ch. 290, § 1.) The statute's amendment, however, did not extend this broader definition of "party" to oral stipulations before the court. (See § 664.6 subd. (b).) Notwithstanding the Legislature's decision to make an exception for "a writing signed by [a] party" (ibid.), the amended statute's reference to "parties" still means the litigants themselves as it relates to oral stipulations before the court (id., subd. (a)). (See Johnson, supra, 38 Cal.App.4th at pp. 1707-1708 [statute's reference to "'"parties"'" means the litigants themselves with regard to oral stipulations before the court]; see also Knight, et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2022) ¶ 1:99 [noting 2020 amendment to § 664.6 did not change the requirement that parties must personally appear and agree for oral settlements before the court].)
Whether consent of the parties is given in writing or orally stipulated before the court, all parties bringing the motion for enforcement and those against whom it is directed must assent to the settlement for it to be enforceable under section 664.6; it is insufficient where only the party against whom the settlement is being enforced has assented. (Harris v. Rudin, Richman &Appel (1999) 74 Cal.App.4th 299, 306 ["We simply hold the section'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."]; Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37 ["A written settlement agreement is not enforceable under section 664.6 unless it is signed by all of the parties to the agreement, not merely the parties against whom the agreement is sought to be enforced."].)
Courts have also recognized that section 664.6 does not require that all parties consent to the settlement in the same manner. For example, if one party agrees to the settlement terms orally before the court and another party agrees in a signed writing, the settlement will be enforceable under section 664.6 so long as the parties agreed to the same material terms albeit through different methods. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428 ["Nothing in the statutory language suggests that, in a multiparty action, all parties must agree to the settlement in the same manner."]; see Critzer v. Enos, supra, 187 Cal.App.4th at pp. 1258-1259 [recognizing parties may agree to settlement in different forms, but they must manifest agreement to the same material terms].)
Here, while plaintiff was present telephonically at the July 29, 2021, hearing and gave his express oral consent to the settlement terms stated before the court, defendants never orally assented to the terms-there is no indication they were even present for the July 29, 2021, hearing. There is also nothing in the record indicating defendants were present and orally assented before the court to the same settlement terms on Friday, July 23, 2021, the date which defense counsel stated the parties had reached an agreement "in principle," but had not obtained plaintiff's agreement. Nor is there any evidence that defendants, or their attorney, gave consent by signing a writing encompassing the same material terms plaintiff agreed to before the court on July 29, 2021. (Cf. Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at pp. 1429, 1432 [parties' absence from court when an oral agreement was reached did not make settlement unenforceable under § 664.6 where those absent parties later agreed to the same material terms in a separate writing]; see Critzer v. Enos, supra, 187 Cal.App.4th at pp. 1258-1259 [agreement unenforceable under § 664.6 where parties, who did not personally consent to the oral settlement recited before the court, later signed a written agreement that differed from those terms].) On the record here, the oral settlement recited in court on July 29, 2021, was not enforceable under section 664.6 because there is no evidence the settling defendants consented to the settlement, either in a writing signed by them or their attorney (§ 664.6, subd. (b)) or orally and personally before the court (Johnson, supra, 38 Cal.App.4th at p. 1708 &fn. 5).
In Johnson, supra, 38 Cal.App.4th at page 1708, footnote 5, the court noted that "[i]f settlement is reached over the telephone in a judicially supervised settlement negotiation ..., litigants could presumably meet the statute's requirements by informing the supervising judge of their agreement via a conference call or other telephonic communication."
The only copy of a written settlement agreement found in this record is an unexecuted copy that was filed with defense counsel's declaration on September 27, 2021.
Defendants maintain the dismissal was legally proper under section 664.6, and thus we consider this issue. Whether the parties consented to the settlement is a threshold requirement under section 664.6. While the statute's requirements as to the form of a party's consent is a legal question (see J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984 [legal question whether party's signature satisfied strict requirements of § 664.6]), whether a party consented in any manner is a factual issue reviewed for substantial evidence (see J.B.B., supra, at pp. 985, 991 [under § 664.6, trial court had to find that all of the parties signed the settlement agreement]; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360 [factual findings on motion to enforce settlement under § 664.6 will not be disturbed if supported by substantial evidence]). As a legal matter, defendants' counsel's presence at the July 29, 2021, hearing was insufficient to satisfy the personal consent requirement for oral agreements under section 664.6, subdivision (a). Further, on this record, there is no evidence defendants consented to the terms of the settlement in any valid form, and the threshold requirement for enforcement under section 664.6 is not supported by substantial evidence. (See Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc., supra, 103 Cal.App.4th at p. 37 [not sufficient under § 664.6 that only the parties against whom the agreement is sought to be enforced gave their consent].)
Due to this conclusion, we do not reach plaintiff's assertions his agreement to the settlement was the product of coercion, nor do we consider the bases for his refusal to sign the written agreement.
DISPOSITION
The trial court's order of dismissal is reversed, and the matter is remanded to the trial court for further proceedings. Plaintiff is entitled to his costs, if any, on appeal. (Rule 8.278(a)(1).)
WE CONCUR: FRANSON, Acting P.J., PENA, J.