Opinion
A166919
08-05-2024
Miriam GREISMAN, Plaintiff and Appellant, v. FCA US, LLC, et al., Defendants and Respondents.
Attorney for Plaintiff and Appellant, Miriam Greisman: Nemecek & Cole, APC, Vikram Sohal, Marshall Cole, Encino; Strategic Legal Practices, APC, Tionna G. Carvalho; Attorney for Defendant and Respondent, FCA US, LLC: Horovitz & Levy LLP, John B. Sprangers, Lisa Perrochet, Burbank, Rebecca G. Powell; Gordon Rees Scully Mansukhani, LLP, Spencer P. Hugret, San Francisco, James P. Mayo, Sacramento; Universal & Shannon, LLP, Jon D. Universal.
Trial Court: Solano County Superior Court; Trial Judge: Honorable E. Bradley Nelson; (Solano County Super. Ct. No. FCS051933)
Attorney for Plaintiff and Appellant, Miriam Greisman: Nemecek & Cole, APC, Vikram Sohal, Marshall Cole, Encino; Strategic Legal Practices, APC, Tionna G. Carvalho;
Attorney for Defendant and Respondent, FCA US, LLC: Horovitz & Levy LLP, John B. Sprangers, Lisa Perrochet, Burbank, Rebecca G. Powell; Gordon Rees Scully Mansukhani, LLP, Spencer P. Hugret, San Francisco, James P. Mayo, Sacramento; Universal & Shannon, LLP, Jon D. Universal.
Richman, J.
Miriam Greisman bought a used 2014 Chrysler Town & Country, a vehicle that soon developed problems. When the problems could not be successfully addressed by the manufacturer, Greisman filed a lemon law action under the Song-Beverly Consumer Warranty Act against the manufacturer and the dealer. A mandatory settlement conference before the court was held over Zoom, at the conclusion of which the parties advised the judge that the case was settled for $100,000, a settlement confirmed on the record.
An issue arose as to whether the settlement amount was inclusive or exclusive of attorney fees, resulting in the parties filing competing motions, Greisman to reset the case on the trial court calendar (and/or other relief), defendants to enforce the settlement. The trial court ordered an evidentiary hearing on the settlement issue, which was held over four days. Following that hearing, the trial court filed an 11page order approving the settlement—and finding that the $100,000 was inclusive of attorney fees. Greisman appeals. We affirm.
BACKGROUND
The Setting
In August 2015, Greisman purchased a used 2014 Chrysler Town & Country from CarMax Auto Superstores California, LLC (CarMax). The vehicle was manufactured by FCA US, LLC (FCA). Greisman paid $22,599, an amount she financed along with other expenses. In connection with her purchase, Greisman received a written warranty, including a three-year, 36,000 mile, bumper-to-bumper warranty and a five-year, 60,000 mile powertrain warranty that covered, among other things, the engine and transmission. The vehicle developed numerous mechanical issues, including oil light illumination, check-engine light illumination, loss of power, engine misfire, and rough running, issues the manufacturer FCA was unable to cure.
The Lawsuit
In November 2018, Greisman filed a complaint under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790, et seq.) naming two defendants, FCA and CarMax (collectively, defendants). The complaint alleged five causes of action, the first four of which were against FCA only, alleging claims under various Civil Code sections: (1) failure to repair within a reasonable number of opportunities (Civ. Code, § 1793.2, subd. (d)); (2) failure to commence repairs within a reasonable time and/or to repair the vehicle within 30 days (id., subd. (b)); (3) failure to make available to authorized repair facilities sufficient service literature and replacement parts (id., subd. (a)(3)); and (4) breach of express warranty. The fifth cause of action, alleged against both FCA and Car-Max, was for breach of implied warranty of merchantability.
Greisman was represented by Tionna Dolin of Strategic Legal Practices, APC (Strategic Legal), which firm remained Greisman’s attorneys throughout the proceedings below, and Ms. Dolin and the firm are listed as co-counsel on appeal. In May 2022, the firm of Nemecek & Cole, APC associated in as Greisman’s counsel, and remains so today, being the other co-counsel on her brief. In the course of the proceedings below at least seven different individual attorneys appeared on behalf of Greisman in pleadings or court appearances.
On January 11, 2019, represented by Schlichter & Shonack, LLP, CarMax filed a demurrer. The demurrer was overruled, and on June 3 CarMax filed its answer.
Meanwhile, on January 17, FCA had filed an answer. FCA was represented by Universal & Shannon, LLP, specifically Jon D. Universal of that firm, who remained counsel throughout and is co-counsel on appeal. On July 12, CarMax substituted Mr. Universal as its attorney in place of Schlichter & Shonack.
On July 11, Mr. Universal served a Code of Civil Procedure section 998 offer, an offer that stated it was from FCA on behalf of "itself and defendant CarMax." Defendants offered to pay Greisman $70,000 "[i]n exchange for the subject vehicle and a dismissal of this action with prejudice in its entirety" and, in addition, her "reasonable costs, expenses and attorney’s fees based on actual time expended pursuant to Civil Code [section] 1794[, subdivision] (d) as stipulated by the parties, or if the parties cannot agree, upon motion to the court having jurisdiction over this action."
On May 27, 2020, Mr. Universal filed an amended answer on behalf of defendants in which they "admit[ted] [to] each and every allegation in the complaint to the extent these answering defendants or its authorized repair facilities were unable to conform [Greisman’s] vehicle to the applicable express warranties after a reasonable number of attempts." The amended answer further stated that defendants had "offered to reimburse" Greisman: "[Payment of] her actual damages under the Song-Beverly Consumer Warranty Act in the amount equal to the vehicle payments made by plaintiff, and including any charges for transportation and manufacturer-installed options, including any collateral charges such as sales tax, license fees, registration fees and other official fees, plus any incidental and consequential damages to which plaintiff is entitled, including but not limited to, reasonable repair, towing and rental car costs actually incurred by plaintiff, less that amount directly attributable to use by plaintiff prior to discovery of the nonconformities, plus the aggregate amount of costs and expenses, including attorney’s fees, reasonably incurred in connection with the commencement and prosecution of this action, all pursuant to Civil Code sections 1793.2[, subdivision] (d) and 1794[, subdivision] (d). Defendants have also offered two times actual damages."
Greisman’s opening brief asserts—an assertion apparently made to demonstrate how she would never accept $100,000 inclusive of her significant attorney fees—that "[N]otwithstanding the amended answer in which [defendants] … admitted liability …, the case went through over 17 months of additional intense litigation." Greisman’s brief does not elaborate as to what that litigation involved—or which side was responsible for it.
Defendants have a different spin on this, asserting—an assertion apparently made to demonstrate that Greisman’s conduct in the face of admitted liability was solely to generate attorney fees—that "[r]ather than joining in defendants’ request for entry of judgment for the plaintiff, plaintiff and her counsel chose to prolong the litigation and run up fees, pursuing discovery, and eventually bringing two motions for summary adjudication."
As to all that happened in the "17 months of additional intense litigation," what we glean from the record is that most of the litigation was caused by Greisman, a big chunk of which was for two motions for summary adjudication brought by her. Specifically:
On July 1, 2020, Greisman filed a motion for summary adjudication that with its supporting papers was almost 100 pages in length. The motion sought summary adjudication on Greisman’s first cause of action, and by way of damages sought "$134,407.65 ([a]ctual damages of $37,935.91 + two times civil penalties of $75,871.82 + prejudgment interest of $20,599.91.)"
Defendants’ opposition argued that Greisman had failed to produce evidence of her actual out-of-pocket costs, as required to determine her actual damages. Defendants also contended that the damage request included categories of damages unavailable as a matter of law.
The trial court denied the motion, finding "a triable issue of material fact regarding the amount of actual damages suffered by plaintiff."
Apparently undaunted, Greisman filed a second motion for summary adjudication, again with lengthy moving papers, this on the second cause of action for failure to effect repairs within 30 days and "including on the issue of the amount of damages." The motion contended that defendants’ amended answer implicitly admitted liability on her second cause of action, and that defendants’ offer in its answer to pay restitution and two time damages operated as a concession that Greisman was entitled to recover those amounts under her second cause of action.
Defendants’ opposition argued among other things that Greisman’s damages request again included disputed amounts.
The trial court denied this motion as well, holding that Greisman had "again" overlooked disputed damages issues and had failed to "present any evidence pertaining to any damages caused by the de- lay in repair."
The only other "litigation" apparent from the record (other than the case management conferences) is that Greisman filed a motion to compel further responses to requests for documents. The motion was denied for failure to meet and confer and also because the discovery was not relevant in light of the amended answer. Defendants were also awarded sanctions.
Shortly after denying the motion, the trial court scheduled a mandatory settlement conference (MSC) to take place on December 20, 2021 before the Honorable Christine A. Carringer. In advance of that conference, Greisman and FCA submitted MSC statements detailing their positions.
Greisman’s statement set forth that she was seeking actual damages in the amount of $42,052.32 (the approximate total sale price of the vehicle), plus civil penalties in the amount of $84,104.64 (i.e., two times that amount of actual damages), for a total of $126,156.96. And separate from those claimed damages, Greisman’s statement mentioned her entitlement to attorney fees, costs, and expenses but without indicating an amount. As Greisman’s brief puts it, "[her] statement did not discuss the specific amount of the fees and costs she had incurred in the over three years of intense litigation."
FCA’s statement, in a section entitled "FCA’s MSC Position," stated that, "[w]ith liability and actual (plus civil penalties) damages, costs, attorney’s fees and legal expenses all generally admitted, the only remaining issue is the specific amount of those damages." FCA disputed Greisman’s calculations of actual damages by arguing that the amount she had paid towards the vehicle was subject to deductions "for the ‘negative equity’ and other non-FCA accessories, including all interest which accrued on those amounts FCA [was] not legally obligated to pay." And as to Greisman’s reasonably incurred attorney fees, costs, and expenses, FCA stated that those were to be determined "by negotiation or motion once FCA has an opportunity to review the actual billing records."
The MSC was held as scheduled, via Zoom, with Judge Carringer presiding. There were five participants: Greisman; her husband Irving Greisman; Rebecca Neubauer, Greisman’s attorney; Mr. Universal, defendants’ attorney; and Fred Sherwood, FCA’s corporate representative. Certified court reporter Reyes F. Hunter was to record the proceedings. The conference lasted for some three hours, and was largely off the record.
The parties advised Judge Carringer that the case was settled for $100,000 and then went on the record to announce the terms, which we discuss in more detail below. This exchange followed:
"[JUDGE CARRINGER:] Am I correct, Mr. Universal, that that is the offer?
"MR. UNIVERSAL: Yes, in exchange for the vehicle.
"[JUDGE CARRINGER]: In exchange for the vehicle. I’m very sorry, I forgot this is a repurchase agreement.
"Ms. Neubauer, is that the agreement you reached?
"MS. NEUBAUER: Yes."
Judge Carringer next asked Greisman to confirm her understanding "that this is the end of the road as far as you are concerned; the vehicle is going to be repurchased, bought back by FCA, and whatever terms you have reached with your own attorneys and the law firm are between you and your attorney." Greisman responded, "Yes, Your Honor."
Judge Carringer then described what would occur following the settlement: the court would vacate the trial date and FCA would make payment to Greisman’s counsel in approximately 60 days "assuming all the conditions are met in terms of the release and dismissal." And the hearing ended with Judge Carringer thanking the parties for putting the matter "to bed."
The Cross-Motions
After the MSC, court reporter Hunter provided an official transcript of it, which transcript indicated that Judge Carringer in announcing the settlement terms stated the following: "I am informed that the parties have agreed that defendants will pay the sum of $100,000 to Miriam Greisman in resolution of any and all claims arising from the lawsuit FCS051933; that is exclusive of all costs and attorney’s fees." (Italics added.) Afterwards, court reporter Hunter submitted an errata sheet that corrected the transcript to reflect that Judge Carringer used the word "inclusive," not "exclusive," when announcing the settlement terms, and a dispute arose between the parties leading each side to file a motion on the issue.
On January 19, 2022, Greisman filed a motion to reset the trial and pretrial dates or, alternatively, for relief under Code of Civil Procedure sections 664.6 (section 664.6) and 473, subdivision (b) (section 473(b)). Greisman’s motion was accompanied by four declarations, from: herself; her husband Irving; her attorney, Ms. Neubauer; and the chief operating officer of Strategic Legal, Shawn Pauli.
As explained in that motion, while Greisman remained willing to move forward with the settlement under the terms she agreed to at the MSC—i.e., $100,000 in damages, exclusive of attorney fees, costs, and expenses—she could not seek enforcement of the settlement because, contrary to the strict requirements of section 664.6, neither of the two defendants personally consented to the settlement terms before the trial court and, as a result, neither party could enforce that settlement. Thus, Greisman argued, good cause existed for the trial court to reset the trial and pretrial dates. Alternatively, if the trial court were to determine that the settlement was enforceable under section 664.6, Greisman requested that the court enforce the settlement as reflected in the certified transcript without the unsigned "purported," errata sheet.
On February 25, defendants filed a motion under section 664.6 to enforce the settlement, which they contended was for $100,000 inclusive of attorney fees, costs, and expenses. The motion was supported by the declarations of Mr. Universal and FCA representative Sherwood, who clarified that he "was also authorized to represent and bind any settlement amount on behalf of CarMax…."
Greisman filed opposition, arguing that the settlement was unenforceable, claiming that defendants’ representative did not orally agree to it; that the court should enforce the settlement only if it is for payment of $100,000 exclusive of costs, contending that Judge Carringer used the word "exclusive" when announcing the settlement terms; and that any settlement for $100,000 would be void based on mistake of fact or a lack of a meeting of the minds.
On March 16, Greisman filed an ex parte application that Judge Carringer recuse herself from further proceedings in the case on the ground, among others, that Judge Carringer was a witness to the issues relating to the settlement and defendants’ opposition to Greisman’s motion "improperly attempted to prejudice Judge Carringer against [Greisman] by arguing that [she] was [criticizing] the court itself on how it handled the settlement." Judge Carringer did recuse herself, and the case was transferred to the Honorable E. Bradley Nelson, who scheduled an evidentiary hearing on the motions for June 24. That hearing began on that day, and took place over four days, June 24 and 29, and August 10 and 30. Judge Nelson heard from five witnesses: Greisman; living Greisman; court reporter Hunter; Sherwood; and Pauli of Strategic Legal. Perhaps tellingly, Ms. Neubauer did not testify.
While the competing motions were pending, the parties learned that court reporter Hunter’s stenographic software had generated an audio recording of the proceedings on the record at the MSC. Defendants moved to obtain the court reporter’s testimony and to introduce the recording into evidence. Greisman opposed, claiming among other things that the recording was not relevant and that she would suffer "unfair surprise and undue prejudice" from the recording’s admission.
[1] On August 10, Judge Nelson ordered the court reporter "to produce the original audio recording to the court and make copies to distribute to the parties within [five] business days." An "[a]udio copy" was "to be uploaded to DropBox" and the "[p]hysical original to be delivered to the court." As she would come to testify, court reporter Hunter provided a CD-ROM disk to the court and uploaded the audio recording to DropBox, which the court shared with the parties’ attorneys. Judge Nelson admitted into evidence the CD-ROM, which he understood to contain the same recording that had been uploaded to DropBox and shared with counsel, concluding that the reporter had provided adequate foundation for the recording’s admission. However, Judge Nelson could not listen to the recording because the CD-ROM turned out to be blank.
We previously granted defendants' unopposed motion to augment the record to include the audio file that was uploaded to DropBox. Because it was lodged with the trial court, the audio recording is a proper component of the record on appeal. (Cal. Rules of Court, rule 8.155(a)(1)(A) (further "rule" references are to the California Rules of Court); see Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Guide 2023) ¶ 5:134; id., ¶ 5:135 ["the documents sought to be added to the record need not have been offered or used in the trial proceedings, so long as they were on file or lodged with the superior court"], citing rule 8.155(a)(1)(A) and People v. Preslie (1977) 70 Cal.App.3d 486, 490, 138 Cal.Rptr. 828.)
On November 2, Judge Nelson issued an 11-page order holding that the settlement announced by Judge Carringer was "inclusive" of "Plaintiff[’]s attorney’s fees and costs," and that the parties themselves personally agreed to the settlement, setting forth the evidence supporting that decision.
First, Judge Nelson credited the transcript as corrected by an errata from court reporter Hunter as reflecting an "inclusive" settlement. The court reporter had confirmed the errata’s accuracy by consulting her contemporaneous stenographic notes and a recording, both of which "reflected that Judge Carringer had used the word ‘inclusive,’ and not the word ‘exclusive.’" Judge Nelson emphasized that "both sides acknowledged listening to [the recording] outside the court’s presence and neither contended that the word ‘exclusive’ was used by Judge Carringer in that recording." Moreover, he reasoned, an "exclusive" settlement would have been inconsistent with Judge Carringer’s instruction to Greisman that "whatever terms you have reached with your own attorneys and the law firm are between you and your attorney." Judge Nelson further noted that Greisman and her attorney Ms. Neubauer offered inconsistent testimony about the settlement terms. That is, Greisman initially testified that she did not recall whether Judge Carringer used the word exclusive or inclusive, but then claimed to recall the judge had used the word exclusive. However, Pauli of Strategic Legal testified that his colleague Ms. Neubauer had informed other attorneys at their firm that she could not recall whether the court used the word inclusive or exclusive following the MSC, but Ms. Neubauer’s "later filed declaration … attested that Judge Carringer used the word ‘exclusive.’ "
Judge Nelson also concluded that the evidence satisfied the statutory requirements for an enforceable settlement. He first found that Sherwood represented both FCA and CarMax, and accepted the settlement terms on behalf of both. He then found that Sherwood had adequately communicated assent to the agreement on the defense side, and that Sherwood was present, and did not object, when his attorney confirmed agreement to the terms of the settlement on the record.
Judge Nelson further noted that an attorney for a represented party may sign a writing settling pending litigation on his or her client’s behalf under section 664.6 and that the statute "contains no limitation restricting that authority to the execution of written settlement agreements or precluding the exercise of that authority orally on the record in open court." The express, on-the-record assent of defendants’ attorney, Mr. Universal, was thus sufficient to render the agreement enforceable under section 664.6.
On December 16, Greisman filed an appeal from the " ‘Order/Judgment’ enforcing purported settlement under … section 664.6 …." Judge Nelson entered final judgment on January 20, 2023.
We previously granted Greisman’s unopposed motion to augment the record to include the judgment. Although Greisman’s notice of appeal identifies the "Order/Judgment enforcing purported settlement," the notice was filed before the judgment was entered, making the appeal premature. However, we exercise our discretion to treat the appeal as filed immediately after entry of judgment. (Rule 8.104(d)(2); see Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1245, fn. 4, 171 Cal.Rptr.3d 111.)
DISCUSSION
Part I: The Trial Court Did Not Err In Entering Judgment, Pursuant to Section 664.6, Enforcing the Stipulated Settlement
General Legal Principles and the Standard of Review
Section 664.6 states, in relevant part: "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." (Code Civ. Proc., § 664.6, subd. (a), as amended by Stats. 2020, ch. 290, § 1, eff. Jan. 1, 2021.)
[2] The purpose of section 664.6 is "to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit." (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809, 71 Cal.Rptr.2d 265 (Weddington).) "If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement." (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182– 1183, 84 Cal.Rptr.3d 689 (Hines); see Code Civ. Proc., § 664.6, subd. (a).) [3] On appeal, "[a] 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." (Machado v. Myers (2019) 39 Cal. App.5th 779, 790, 252 Cal.Rptr.3d 493; accord, In re Marriage of Assemi (1994) 7 Cal.4th 896, 911, 30 Cal.Rptr.2d 265, 872 P.2d 1190.)
[4–8] Regarding the substantial evidence standard, the principles are well settled: "‘[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or un-contradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor …." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660, 190 Cal.Rptr. 355, 660 P.2d 813 (Jessup).) Stated another way, an appellate court does not evaluate the credibility of the witnesses or otherwise reweigh the evidence. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 349, 148 Cal. Rptr.3d 581 (Barboni).) Rather, "we defer to the trier of fact on issues of credibility." (Lenk v. Total-Western, Inc. (2001) 89 Cal. App.4th 959, 968, 108 Cal.Rptr.2d 34 (Lenk).) "If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632, 80 Cal.Rptr.2d 378.) "Our job is only to see if substantial evidence exists to support the [decision] in favor of the prevailing party, not to determine whether substantial evidence might support the losing party’s version of events." (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582, 257 Cal.Rptr.3d 699.)
[9] Legal questions, such as the proper interpretation of section 664.6 or whether the granting of the motion satisfied the strict requirements of the statute, are reviewed de novo. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984, 182 Cal.Rptr.3d 154 (J.B.B.).)
The Stipulated Settlement Met the Statutory Requirements
According to Greisman, no oral settlement can be enforced under section 664.6 unless the parties themselves, not just their attorneys, stipulate to settle. And because defendants’ attorneys, not defendants themselves, consented to the oral settlement in this case, Greisman argues the trial court erred in granting the motion to enforce the settlement under section 664.6. We disagree.
[10, 11] Greisman’s contention presents a question of statutory interpretation, which, as noted, we review de novo. (J.B.B., supra, 232 Cal.App.4th at p. 984, 182 Cal.Rptr.3d 154.) " ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ " (Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14, 282 Cal.Rptr.3d 639, 493 P.3d 196.) " ‘We begin by examining the statutory language, giving it a plain and commonsense meaning.’ " (Ibid.) " ‘If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history.’ " (Ibid.) Another relevant principle of interpretation is that we presume the Legislature is aware of judicial decisions and enacts and amends statutes in the light of that knowledge. (Leider v. Lewis (2017) 2 Cal.5th 1121, 1135, 218 Cal.Rptr.3d 127, 394 P.3d 1055.) Thus, we view the current version of section 664.6 against the statutory and decisional developments preceding it.
Prior to January 1, 2021, section 664.6 provided in its entirety: "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." (Stats. 1981, ch. 904, § 2, p. 3437, italics added.)
In Levy v. Superior Court (1995) 10 Cal.4th 578, 41 Cal.Rptr.2d 878, 896 P.2d 171 (Levy), our Supreme Court addressed "whether the Legislature intended the term ‘parties’ as it appears in section 664.6 … to mean only the litigants personally or to include the attorneys representing the litigants." (Id. at p. 582, 41 Cal.Rptr.2d 878, 896 P.2d 171.) The court initially determined the word " ‘parties’ " was ambiguous. (Ibid).) After examining the statutory context, the court interpreted "parties" literally to mean the litigants themselves, not the litigants’ attorneys of record. (Id. at p. 586, 41 Cal.Rptr.2d 878, 896 P.2d 171.) It reasoned that because a settlement of a lawsuit implicates a substantial right of the litigants, "in providing for an enforcement mechanism for settlements by ‘parties,’ the Legislature intended the term to literally mean the litigants personally." (Id. at p. 584, 41 Cal.Rptr.2d 878, 896 P.2d 171.) Applying that interpretation to the facts before it—where the litigants’ attorneys, not the litigants themselves, had executed a purported written settlement agreement—the court held the agreement was not enforceable under section 664.6. (Levy, at p. 586, 41 Cal.Rptr.2d 878, 896 P.2d 171.)
Subsequently, Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1707–1708, 45 Cal.Rptr.2d 740 held that the Levy requirement applied to oral settlements recited before the court. (See Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1254–1258, 115 Cal.Rptr.3d 203; Murphy v. Padilla (1996) 42 Cal.App.4th 707, 716, 49 Cal.Rptr.2d 722.)
Effective January 1, 2021, before the December 2021 stipulation in this case, the Legislature passed Assembly Bill No. 2723 (2019–2020 Reg. Sess.), which amended section 664.6. It now states, in relevant part: "(a) 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….
"(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following: [¶] (1) The party. [¶] (2) An attorney who represents the party. [¶] (3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf." (Stats. 2020, ch. 290, § 1.)
Effective January 1, 2024, after the judgment was entered in this case, Assembly Bill No. 1756 (2023–2024 Reg. Sess.) amended section 664.6, subdivision (b)(3) to state: "If an insurer is defending and indemnifying a party to the action, an agent who is author ized in writing by the insurer to sign on the party’s behalf. This paragraph does not apply if the party whom the insurer is defending would be liable under the terms of the settlement for any amount above the policy limits." (Stats. 2023, ch. 478, § 12.)
Here, as Judge Nelson observed, "[section 664.6] was amended effective January 1, 2021, to expressly allow an attorney for a represented party to sign a writing settling pending litigation on his or her client’s behalf. It contains no limitations restricting that authority to the execution of written settlement agreements or precluding the exercise of that authority orally on the record in open court." Based on this construction, he concluded that the express, on-the-record assent of Greisman, her attorney, and defendants’ attorney to settle the case was sufficient to satisfy the requirements of section 664.6.
In arguing the contrary, Greisman relies on the maxim expressio unius est exclusio alterius, which means "the expression of one thing … ordinarily implies the exclusion of other things." (In re J.W. (2002) 29 Cal.4th 200, 209, 126 Cal.Rptr.2d 897, 57 P.3d 363.) Doing so, Greisman argues that "Section 664.6’s recent amendment did not extend the broader definition of ‘party’ set forth in subdivision (b) to oral stipulations before the court. Notwithstanding the Legislature’s decision to make an exception for ‘a writing signed by [a] party,’ the amended statute’s reference to ‘parties’ still means the litigants themselves as it relates to oral stipulations before the court." We are unpersuaded.
[12, 13] Expressio unius est exclusio alterius "is not applied in isolation, without regard to ‘legislative history or other evidence of legislative intent,’ but rather must be considered with regard to ‘other indicia of legislative intent.’ [Citation.]" (People v. Alaybue (2020) 51 Cal.App.5th 207, 218, 264 Cal.Rptr.3d 876, citing In re J.W., supra, 29 Cal.4th at p. 209, 126 Cal. Rptr.2d 897, 57 P.3d 363.) Indeed, courts should " ‘not apply the expressio unius est exclusio alterius principle ‘if its operation would contradict a discernable and contrary legislative intent." [Citations.]’ " (People v. Alaybue, at p. 218, 264 Cal. Rptr.3d 876, citing In re J.W., at pp. 209– 210, 126 Cal.Rptr.2d 897, 57 P.3d 363.)
[14] "To determine what purpose the Legislature intended [section 664.6] to serve, we consider its legislative history." (In re J.W., supra, 29 Cal.4th at p. 210, 126 Cal.Rptr.2d 897, 57 P.3d 363.) As defendants point out, the legislative history of section 664.6 includes legislative committee analyses of Assembly Bill No. 2723. And we agree with defendants that these materials refute Greisman’s interpretation of the statute.
We take judicial notice of these legislative materials on our own motion. (See In re J.W., supra, 29 Cal.4th at p. 211, 126 Cal.Rptr.2d 897, 57 P.3d 363 ["To determine the purpose of legislation, a court may consult contemporary legislative committee analyses of that legislation, which are subject to judicial notice"].
The analyses from both the Senate Rules Committee and the Senate Judiciary Committee discuss the Levy decision and state that "[c]urrently, Section 664.6 requires that the parties must stipulate to the settlement underlying the motion." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 2723 (2019–2020 Reg. Sess.) as amended Aug. 20, 2020 (Senate Rules Committee Analysis), p. 5; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2723 (2019–2020 Reg. Sess.) as amended May 4, 2020 (Senate Judiciary Committee Analysis), pp. 4– 5.) The analyses then state: "This bill eliminates the requirement that parties themselves must personally sign or orally stipulate to these settlements and instead allows counsel for the parties to so stipulate on their behalf and further authorizes agents of insurers to stipulate on the insurer’s behalf." (Senate Rules Committee Analysis, supra, at p. 5, italics added; Senate Judiciary Committee Analysis, supra, at pp. 5-6, italics added.)
The analyses from the Senate Rules Committee and the Senate Judiciary Committee describe the purpose of the legislation in this way: "Principles of efficiency and economy promote the settlement of civil disputes by the parties, involving the court and expending its resources only where absolutely needed. This bill seeks to streamline the procedure provided for in Section 664.6 by explicitly granting the authority to stipulate to settlements to attorneys, on behalf of the parties they represent, and to agents of insurers, where the insurer is a party to the settlement. However, this removes the existing procedural protection requiring more direct client involvement." (Senate Rules Committee Analysis, supra, at p. 4, italics added; Senate Judiciary Committee Analysis, supra, at p. 4, italics added.) The analyses further state: "The virtues outlined by the Supreme Court notwithstanding, the author and the sponsor … now seek to streamline this process in order to meet the goals of efficiency and economy." (Senate Rules Committee Analysis, supra, at p. 5, italics added; Senate Judiciary Committee Analysis, supra, at p. 5, italics added.)
[15, 16] These legislative committee analyses confirm that the Legislature intended to eliminate the requirement in Levy (and, by extension, its progeny) that parties must personally sign or orally stipulate to settle a case. "In the end, a court must adopt the construction most consistent with the apparent legislative intent and most likely to promote rather than defeat the legislative purpose and to avoid absurd consequences." (In re J.W., supra, 29 Cal.4th at p. 213, 126 Cal.Rptr.2d 897, 57 P.3d 363.) Here, to promote rather than defeat the legislative purpose to depart from the Levy decision and to streamline the settlement process, we hold that, as applied to oral settlements stipulated before the court, current section 664.6 does not require that the parties themselves orally stipulate, and instead allows counsel for the parties to orally stipulate on their behalf.
[17] Applying that interpretation to the facts here, there is no dispute that the attorneys for both parties, in addition to Greisman herself, orally stipulated to settle the case before Judge Carringer at the MSC. This, as the trial court found, was sufficient to satisfy the requirement that the parties "stipulate … orally before the court, for settlement of the case." (§ 664.6, subd. (a).)
Part II–IV.**
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal. (Rule 8.278(a)(2).)
We concur:
Stewart, P.J.
Desautels, J.
** See footnote *, ante.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, only the Background and Part I and Subheadings thereunder are certified for publication.