Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge, No. SCVSS141756
Law Office of Joshua Kaplan and Joshua Kaplan for Defendants and Appellants.
Best Best & Krieger, Richard T. Egger, Michael A. Felsted and Kira L. Klatchko for Plaintiff and Respondent.
Gaut, J.
1. Introduction
As incredible as it seems, the issue in this case is about whether a settlement and judgment are void because of a one-day discrepancy.
Defendants Irma Linda Diaz and Joe Diaz own and operate an adult-entertainment business, Diamonds Gentlemen’s Club, in the City of Fontana. The city sued them for a zoning violation and nuisance abatement.
The Diazes and the city settled the case and the trial court ordered the settlement to be enforced, allowing them to operate the business for three years from March 3, 2008. On appeal, the Diazes contend the judgment is void because the three-year period should have been from March 4, 2008.
We reject this trivial claim and affirm the judgment.
2. Factual and Procedural Background
On the day of trial, February 13, 2008, the parties entered into a settlement as follows: “Defendants may operate their business for three years from the date of the signing of the settlement agreement. Once the city council approves the settlement agreement, defendants have 1 week from the date of the approval to sign the settlement agreement. Remainder of settlement terms cited into the record.” Additionally, “The Diazes can operate the current adult oriented business in its current location for three years from the date of all parties signing the settlement agreement. The signing of the settlement agreement is subject to City Council’s approval. [¶]... [¶]... The settlement agreement will have to be signed [¶]... [¶]... [w]ithin a week of Council’s approval.... [¶]... [¶]... The Diazes will not challenge the existing adult oriented business in the City of Fontana or the zoning ordinance; or the ordinance that was just adopted which is entitled Development Code Update, which is in the process of being legally approved by the City Council and should be approved within the next 20 days. [¶]... [¶] Three: The City will issue any and all necessary building permits and other similar permits to rehabilitate the property if requested by the Diazes. [¶] Four: No money will be paid to the Diazes from the City of Fontana. [¶] Five: After three years, the Diazes can relocate the adult business to a legal site within the City, if they so choose. [¶] Six: Each party will bear their own attorney’s fees and costs. [¶] Seven: Each party execute a 1542 release. [¶] Eight: We request the Court to retain jurisdiction to enforce the settlement agreement,... [¶] Nine: Any and all current criminal charges against Mr. Diaz will be dropped. [¶]... [¶] Ten: The Diazes will have 60 days to apply for any and all appropriate permits for the property to come into Code compliance.”
The city council approved the settlement agreement on February 26, 2008, but on the same date Joe Diaz announced he had rescinded his agreement.
The city then made a motion to enforce the settlement agreement. (Code Civ. Proc., § 664.6.) The settlement agreement contained an error in that it recited the three-year period began on February 13, 2008, instead of beginning on the date upon which it was executed by all the parties.
The court granted the motion to enforce the settlement, subject to a three-year period beginning on March 3, 2008, and entered judgment.
3. Discussion
Although the Diazes quibble about whether they rescinded their agreement to the settlement before or after the city council gave its approval, the whole substance of their appeal concerns the one-day discrepancy, which they claim is “patently material” and a fatal disparity. The Diazes assert no other cognizable challenge to the settlement. Instead, most of their appellants’ opening brief consists of legal boilerplate about contract law with no real effort to make a meaningful argument based on the facts of this case.
As their primary contention, the Diazes urge the trial court erred in granting the motion to enforce the settlement agreement because the effective date should have been March 4, 2008, which is seven days after February 26, 2008 (including the leap day of February 29), instead of March 3, 2008, which is only six days after February 26, 2008. We are not persuaded.
We cite liberally from Osumi v. Sutton (2007)151 Cal.App.4th 1355, 1359-1360:
“It is, of course, the strong public policy of this state to encourage the voluntary settlement of litigation. [Citations.] To that end, the law... provides, in section 664.6, an expedited procedure for enforcing a settlement once it has been agreed upon. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1535.)
“Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809-810.) It is for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428-1429.) In making that determination, ‘the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement. [Citation.] Trial judges may consider oral testimony or may determine the motion upon declarations alone. [Citation.] When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] memory. [Citation.]’ (Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454.) The trial court’s factual findings on a motion to enforce a settlement pursuant to section 664.6 ‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’ (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.)
“‘Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.’ (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 810, original italics.) Once the parties have reached a settlement, however, they ‘may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms.’ (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1431.) Consistent with the venerable substantial evidence standard of review, and with our policy favoring settlements, we resolve all evidentiary conflicts and draw all reasonable inferences to support the trial court’s finding that these parties entered into an enforceable settlement agreement and its order enforcing that agreement.”
Just as in Osumi v. Sutton, supra, 151 Cal.App.4th at page 1360, the trial court here “did not create a material term of the settlement or otherwise err” when it used March 3 instead of March 4 as the effective date for the three-year period to continue operating Diamonds Gentlemen’s Club. First, we note the Diazes did not object below to the court’s pronouncement of the terms of the settlement agreement and the effective date March 3 instead of March 4, 2008: “... an appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been, but was not raised below.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.)
Furthermore, depending on when defendants actually signed the settlement agreement, the three-year period could have become effective on any date between February 26, 2008, when the city council approved the settlement and the next seven days. March 3, instead of March 4, is not a “material” change causing a fatal disparity in the settlement or judgment: “Whether the mistake of fact here is one consisting of ‘an unconscious ignorance or forgetfulness of a fact present’ or a ‘belief in the present existence of a thing which does not exist’ (Civ. Code, § 1577), it must be one material to the contract. The mistake must be such that it animated and controlled the conduct of the party; go to the essence of the object in view and not be merely incidental. The court must be satisfied that but for the mistake the complainant would not have assumed the obligation from which he seeks to be relieved.” (Reid v. Landon (1958) 166 Cal.App.2d 476, 483, citing Roller v. California Pacific Title Ins. Co. (1949) 92 Cal.App.2d 149.)
The Diazes’ plea that they might lose “one day’s loss of revenue” in three years seems hollow to this court. We cannot countenance what seems to be a poorly-disguised effort by the Diazes to escape the settlement to which they consented.
4. Disposition
In these dark days of state budget cuts and limited judicial resources, we are dismayed that the Diazes would choose to impose on the court to decide so trivial a claim as presented here. It costs at least $6,000 to process even a minor appeal: “... a number of appellate courts in other appellate districts have used $5,900-$6,000 based on a calculation made in 1992 (see Cohen v. General Motors Corp.(1992) 2 Cal.App.4th 893, 897) as a conservative estimate for processing the average civil appeal. [Citations.] A cost analysis undertaken by the clerk’s office for the Second Appellate District (which apparently employed the methodology described in Young v. Rosenthal (1989) 212 Cal.App.3d 96, 136, fn. 40) concluded that ‘the cost of processing an appeal that results in an opinion by the court to be approximately $8,500, while the cost for processing an appeal that... is resolved without opinion (for example, by dismissal for lack of an appealable order) to be approximately $1,750.’ [Citation.]” (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1163.) We recognize the cost to the City in litigating these post-settlement proceedings must also be considerable.
We affirm the judgment and order the City to recover its costs on appeal.
We concur: Ramirez, P. J., Hollenhorst, J.