Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC350122, Mel Red Recana, Judge. Reversed as to Diana Khoury Abu Ata; affirmed as to Rimon Abu Ata.
Ajalat & Ajalat and Sol P. Ajalat for Defendants and Appellants.
Huang, Fedalen & Lin, James C. Fedalen and Angela P. Lin for Plaintiffs and Respondents.
TURNER, P. J.
I. INTRODUCTION
Defendants, Rimon Abu Ata and Diana Khoury Abu Ata, appeal from a July 23, 2008 judgment entered pursuant to Code of Civil Procedure section 664.6 in favor of plaintiffs, Awad Dayan and Lamia Dayan. The trial court ordered a parcel of residential property (the property) sold under specified terms and conditions. Because Ms. Abu Ata did not personally verbally consent to the settlement, we reverse the judgment as to her. We affirm the judgment as to Mr. Abu Ata.
II. BACKGROUND
Plaintiffs brought suit against defendants to quiet title to the property in Los Angeles. In a first amended complaint filed on August 4, 2006, plaintiffs alleged: an interest in the property had been conveyed to Mr. Abu Ata in trust for both plaintiffs’ benefit; it was never intended that Mr. Abu Ata would acquire any interest in the property for his own benefit; however, Mr. Abu Ata subsequently refused to quitclaim the property to plaintiffs. Plaintiffs expressly named Ms. Abu Ata, individually, as a defendant. Plaintiffs alleged as to Ms. Abu Ata: “[Ms. Abu Ata] claim[s] some interest in the Property herein, pursuant to the Community Property Laws of the State of California due to the fact Defendant [Mr. Abu Ata] is shown on a recorded deed as 50 percent owner of the Property.” Plaintiffs sought to quiet title as to Ms. Abu Ata’s interest in the property as well as that of her husband. Defendants filed a cross-complaint against plaintiffs.
On August 14, 2007, defendants appeared in the trial court represented by counsel, Ed Salem and Mona Farraj. Ms. Farraj stated the terms of a settlement on the record. The trial court asked defendants whether the terms were acceptable. Mr. Abu Ata stated, “Yes, they are acceptable.” Ms. Abu Ata did not orally state her consent on the record.
The entire inquiry among the court, counsel, and parties present in the courtroom was as follows: “The Court: I will ask the defendants if those terms are acceptable. [¶] [Mr. Abu Ata]: Yes, they are acceptable. [Defendants’ counsel Ms. Farraj]: Your name, sir. [¶] [Mr. Abu Ata]: Abu Ata. [¶] The Court: Okay. And the young girl who is helping? [¶] Ms. Awad: My name is Dayan Awad. [¶] The Court: You got the name? [¶] The reporter: Yes. [¶] The Court: Okay, and the young girl, who is she? [¶] Ms. Farraj: She is just watching. [¶] The Court: How about the handsome fellow? [¶] [Plaintiffs’ counsel James Fedalen]: He is not an interested party, Your Honor, they are just watching. [¶] The Court: All right, so what I was wondering about is the successors in interest. [¶] [Defendants’ attorney Mr. Salem]: They are the successor in interest Your Honor, and thereafter, if the children become successors in interest if they are minors there will be a guardian. [¶] The Court: So it’s up [to] the lawyers. [¶] Ms. Farraj: Yes. [¶] The Court: How about the plaintiffs’ side? [¶] Mr. Fedalen: That is acceptable to us, Your Honor. [¶] Mr. Dayan, is the settlement agreement okay with you, sir? [¶] Mr. Dayan: Yes. [¶] Mr. Fedalen: Okay. [¶] The Court: How about the wife? Your name, please, we need to put it down. [¶] [Defendants’ counsel Ms. Farraj]: Your name? [¶] [Mr. Dayan]: A-w-a-d D-a-y-a-n. [¶] Ms. Dayan: M-a-m-i-a D-a-y-a-n. [Sic] [¶] Ms. Farraj: Your Honor, can we inquire that the court ask of the plaintiffs whether they fully understood the settlement agreement. [¶] First, these two young ladies are the successors in interest, they are the daughters? [¶] Mr. Fedalen: They are some of them, Your Honor, but they speak for the family. [¶] The Court: Okay, and you explained these terms and conditions of settlement? [¶] M[s]. Farraj: Yes, we did, Your Honor. Ms. Hernandez: Yes, they did, and do you need my name? [¶] The Court: Yes. [¶] Ms. Hernandez: R-u-l-l-a H-e-r-n-a-n-d-e-z. [¶] The Court: And I need you too. [¶] Ms. Boghosian: I’m Yolla, Y-o-l-l-a and the last name is Boghosian, B-o-g-h-o-s-i-a-n. [¶] The Court: And I take it you have explained the terms and conditions to the plaintiff? [¶] Ms. Boghosian: Yes, I did, Your Honor. [¶] The Court: Okay. And if you are successors in interest, do you agree these terms are reasonable? [¶] Ms. Boghosian: Yes, they are. [¶] The Court: Okay, and counsel join? [¶] Mr. Fedalen: Yes, Your Honor.”
On November 15, 2007, defendants filed a document entitled, “Notice of failure to consummate non-binding settlement and request to restore case to court trial calendar.” Defendants asserted in part, “[T]he Clerk’s Transcript does not set forth the consent to the Stipulation or any inquiry of the understanding of the terms thereof by [Ms. Abu Ata], a party to this action.” Plaintiffs filed a written opposition to defendants’ notice and sought to enforce the settlement pursuant to section 664.6. Plaintiffs’ counsel, Mr. Fedalen, declared: “At the time of the Mandatory Settlement Conference of August 14, 2007, I observed Defendant Diana Khoury Abu Ata at the counsel table. When the Court asked Defendant Rimon Abu Ata whether the terms of the settlement were reasonable, I observed Defendant Diana Khoury Abu Ata nod her head in agreement.” The trial court granted plaintiffs’ requested relief and entered the judgment from which this appeal is taken.
III. DISCUSSION
Code of Civil Procedure section 664.6 (section 664.6) states in part: “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.” (Italics added.) The Supreme Court has held: “Past cases have established that, in ruling upon a section 664.6 motion for entry of judgment enforcing a settlement agreement, and in determining whether the parties entered into a binding settlement of all or part of a case, a trial court should consider whether (1) the material terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties regarding their understanding of those terms, and (3) the parties expressly acknowledged their understanding of and agreement to be bound by those terms. In making the foregoing determination, the trial court may consider declarations of the parties and their counsel, any transcript of the stipulation orally presented and recorded by a certified reporter, and any additional oral testimony. [Citations.] The standard governing review of such determinations by a trial court is whether the court’s ruling is supported by substantial evidence. [Citations.]” (In re Marriage of Assemi (1994)7 Cal.4th 896, 911, italics added, citing, as to the standard of review, Estate of Dipinto (1986) 188 Cal.App.3d 625, 629, and Casas de Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1190.) The Courts of Appeal have held, however, that the determination whether the statutory requirements have been met is a question of law subject to de novo review. (Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 544; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162; Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711.)
Under any standard of review though, the statutory requirement that Ms. Abu Ata stipulate orally before the court has not been met. Ms. Abu Ata never consented on the record to the settlement. When a settlement is entered orally under section 664.6, litigants must personally acknowledge and expressly consent to the settlement before the court. (Levy v. Superior Court (1995) 10 Cal.4th 578, 581, 582-586 [“parties” means the litigants, not their attorneys]; Conservatorship of McElroy, supra, 104 Cal.App.4th at pp. 548-552; Murphy v. Padilla, supra, 42 Cal.App.4th at pp. 715-717; Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1702-1703, 1707-1708; 40A Cal.Jur.3d, Judgments, § 15, pp. 37-39.) In Levy, our Supreme Court explained: “[T]he statute requires the ‘parties’ to stipulate in writing or orally before the court that they have settled the case. The litigants’ direct participation 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, supra, 10 Cal.4th at p. 585, fn. omitted; accord, Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1117-1118.)
Moreover, when a settlement is stipulated to orally before the trial court, a party litigant must state his or her consent in words. (Conservatorship of McElroy, supra, 104 Cal.App.4th at p. 551.) The Court of Appeal has held: “The words of the statute, ‘orally before the court,’ are clear and unambiguous.... [T]here is no ambiguity in the word ‘oral.’ It means ‘uttered by the mouth or in words.’ (Webster’s 3d New Internat. Dict. (1993) p. 1585.)” (Conservatorship of McElroy, supra, 104 Cal.App.4th at p. 551.) A party’s nod of the head at a settlement hearing, as here, does not constitute valid oral consent to the agreement. (Id. at pp. 550-552; Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2008), ¶¶ 4:533.4, 4:533.4e (rev. #1, 2007).) For consent to a settlement before the court to be valid, unambiguous assent, expressed orally, is required. (Conservatorship of McElroy, supra, 104 Cal.App.4th at p. 551; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2008) ¶ 12:961, pp. 12(ll)-106-12(ll)-107] (rev. #1, 2007).) Absent personal oral consent by a party, the settlement agreement is not enforceable under section 664.6. (Levy v. Superior Court, supra, 10 Cal.4th at p. 586; Conservatorship of McElroy, supra, 104 Cal.App.4th at p. 552; Williams v. Saunders, supra, 55 Cal.App.4th at pp. 1162-1163; Cortez v. Kenneally (1996)44 Cal.App.4th 523, 524-525, 528-530; Murphy v. Padilla, supra, 42 Cal.App.4th at p. 716; Johnson v. Department of Corrections, supra, 38 Cal.App.4th at pp. 1707-1708; but see Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1356.) As in Conservatorship of McElroy,the problem is compounded by the fact that the trial court never questioned the parties regarding their understanding of the settlement terms nor did they expressly acknowledge such knowledge. (Conservatorship of McElroy, supra, 104 Cal.App.4th at pp. 548-552.)
Plaintiffs argue, without citing any legal authority, Ms. Abu Ata’s assent was not required because she has no recorded interest in the property. Plaintiffs assert, “[Plaintiffs] only added [Ms. Abu Ata] to the action out of an abundance of caution, and not because they believed [Ms. Abu Ata] actually had an interest in the Property.” Plaintiffs conclude: “Because [Ms. Abu Ata] is not an essential party to the settlement, her assent or lack thereof has no bearing on the validity of the settlement. Other than the fact the action is dismissed as part of the settlement, the settlement does not have a legal effect on her.” We cannot agree. As noted above, Ms. Abu Ata was named as a defendant and plaintiffs specifically alleged she had a potential community property interest in the property. Ms. Abu Ata was also a cross-complainant. Plaintiffs have not established the settlement can be enforced absent Ms. Abu Ata’s oral consent. However, no ground exists to reverse the judgment as to Mr. Abu Ata as there has been full compliance with section 664.6 as to him.
IV. DISPOSITION
The order granting the motion to enforce the settlement under Code of Civil Procedure section 664.6 and judgment as to Diana Khoury Abu Ata are reversed. The judgment is affirmed in all other respects. All parties are to bear their own costs on appeal.
We concur: ARMSTRONG, J. KRIEGLER, J.