Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 828684
Siggins, J.
Thorpe Insulation Company (Thorpe) appeals from a judgment entered pursuant to Code of Civil Procedure section 664.6 to enforce settlement agreements in 44 personal injury actions filed against Thorpe due to asbestos exposure. We affirm.
All further statutory references are to the Code of Civil Procedure.
BACKGROUND
Thorpe is a defendant in numerous asbestos-related personal injury and wrongful death cases. In the fall of 2005, 44 plaintiffs (all represented by the same counsel) moved to enforce the terms of settlement agreements they asserted were reached with Thorpe. According to the plaintiffs, the agreements were memorialized in Thorpe’s letters of May 9, May 23, and May 29, 2005, signed by its president, Robert Fults, and each of the plaintiffs signed compromise and release agreements stipulating to the terms of his or her respective settlement. The Fults letters were provided to the trial court as exhibits to the enforcement motion, as was a chart setting forth the basic facts of each individual settlement and at least one plaintiff’s compromise and release agreement.
It is not evident from the record whether the plaintiffs filed all of the 44 agreements in the trial court or just one exemplar.
Thorpe denied that it had agreed to the settlements. It acknowledged that, faced with limited amounts of insurance proceeds remaining to satisfy thousands of asbestos cases, Fults signed a letter “stating that the settlements ‘recommended’ by Thorpe’s defense attorneys were ‘confirmed’ by Thorpe as full and final settlements to be paid, at some unspecified time from ‘available insurance proceeds.’ ” It argued, however, that the letters did not constitute settlement agreement; that Thorpe never executed the plaintiffs’ compromise and release agreements; that those agreements varied materially from the Fults letters in that they did not condition settlement on the availability of insurance funds and contained numerous additional terms, such as an allocation formula, attorney fees provisions, and dispute resolution provisions; and that Thorpe never agreed to payment of the settlement amounts at any specific time.
The trial court concluded that Thorpe had entered into an enforceable settlement agreement with each plaintiff. Judgment was entered directing that plaintiffs “shall have judgment for the unpaid settlement amounts . . . to be paid from any available insurance proceeds.” Thorpe filed a timely appeal and elected to proceed by an appendix under former rule 5.1 of the California Rules of Court.
Effective January 1, 2007, rule 5.1 was amended and renumbered rule 8.124.
DISCUSSION
“Section 664.6 provides in pertinent part that ‘[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court . . . for settlement of the case, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.’ Aside from the signed writing requirement, the writing must embody an enforceable contract between the parties: ‘A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.’ ” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 35-36 (Sully-Miller).) “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Id. at p. 37.)
“[T]he trial court’s factual determination on a motion to enforce settlement will be affirmed if the court’s ruling is supported by substantial evidence. [Citation.] We make such a determination, however, only after deciding whether the parties meet the statutory conditions of section 664.6. Construction and application of a statute involve questions of law, which require independent review.” (Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711.)
Thorpe contends the court erred in enforcing the purported settlement agreements because (1) there is no writing signed by both parties; and, alternatively (2) even if there is, there was no mutual consent. On the first point, Thorpe argues that to satisfy section 664.6 a written agreement containing the material terms of the settlement must be signed by both the party seeking to enforce it and the party against whom it is to be enforced. This premise is true, as far as it goes (see Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1431), but it does not support Thorpe’s position that there is not an enforceable writing here as a matter of law. It is well established as a matter of general contract law (see Sully-Miller, supra, 103 Cal.App.4that p. 37) that a writing sufficient to satisfy the requirement of a written memorandum “may be informal, and may consist of one or more writings; e.g., two telegrams, or separate escrow instructions, each signed by one of the parties.” (1 Witkin, Summary of Cal. Law, supra, Contracts, § 351, pp. 397-398, citing numerous cases.) Nothing in the language of section 664.6 suggests that the Legislature intended to depart from this principle in favor of such a restrictive concept of the term “a writing” as Thorpe suggests. Nor is such a restrictive construction necessary to carry out the legislative intent of ensuring deliberate, considered and unambiguous settlement agreements. (See Elyaoudayan, supra, at p. 1429.) To the contrary, agreements reached in counterpart may be enforced “as long as the parties agree to the same material terms, be it orally or in writing, the purpose of section 664.6 is satisfied.” (Id. at p. 1428.)
Our analysis is informed specifically by provisions concerning the adequacy of writings for purposes of the statute of frauds. Although of a different provenance than the statutory rule at issue here, the doctrine is similarly meant to ensure the parties meant what they said and said what they meant. (Compare 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 349, p. 396 [statute of frauds intended to prevent fraud and perjury]; Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1429 [section 664 ensures that settlements result from “mature reflection and deliberate assent” and minimizes possibility of conflicting interpretation]; see also Dr. Seuss, Horton Hatches the Egg (Random House (1940).)
Thorpe, however, contends that what it calls the “competing documents” cannot comprise an enforceable agreement under section 664.6 because they contain materially different terms and lack mutuality of consent. It correctly observes that the plaintiffs’ compromise and release documents contain terms that apparently were not included in the Fults letters—specifically, the allocation, payment, enforcement, attorney fees and date of payment provisions. Thorpe’s contention fails for two reasons. First, none of the terms Thorpe identifies as “materially different” from those in the Fults letters are included in the judgment, which only awards plaintiffs “judgment for the unpaid settlement amounts set forth in the attached Exhibit A, as indicated in column D, to be paid from any available insurance proceeds.” Second, we have no basis upon which to assess Thorpe’s claim that it did not consent to the settlement because Thorpe (rather remarkably) failed to include the Fults letters in its record on appeal. “It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
Although not critical to our conclusion today, at oral argument, for the very first time, Thorpe’s counsel offered missing letters—at least two of the three, more on this in a moment—to this court. The circumstances are unusual, to say the least. Counsel announced that she did not discover the omission until a week before argument due to “a series of unfortunate events,” described only vaguely but dauntingly. (See generally Snicket, A Series of Unfortunate Events (Harper Collins 1999).) Counsel considered her discovery to be too late to cure the error before oral argument. When counsel did offer the missing letters at oral argument, her offer was unaccompanied by a declaration explaining reasons for the delay or indicating that Thorpe made any attempt to notify opposing counsel that it would offer the letters at argument. In light of the “unfortunate events,” we consented in the interest of justice to deem counsel’s offer an oral request for judicial notice and allowed the letters to be lodged. Since oral argument, counsel lodged a request for judicial notice containing the letters offered at argument and showing service of the request upon respondents’ counsel. Despite all this, upon review, we find (1) that counsel in fact provided only two of the three missing letters; and (2) in any event, nothing in the letters that were provided changes our analysis.
The request for judicial notice is denied. We find no error.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.