Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-04-434256
RIVERA, J.
Plaintiff Diana E. Pettinicchi appeals from an order dismissing her action against defendants Dyan Dreisbach and Lucy B. Stephenson. She contends that because it cannot be determined what consideration is due to her under the terms of a settlement agreement, the agreement is unenforceable. We affirm.
I. FACTUAL BACKGROUND
Plaintiff brought a tort action against defendants alleging she had suffered injuries on their property. Over a year later, on December 1, 2005, the parties executed a settlement agreement. Under the terms of the agreement, plaintiff was provided an initial payment of $100,000. The agreement also provided that plaintiff would release and discharge defendants from “all claims, liens, demands, actions and causes of action” arising out of plaintiff’s personal injuries on August 28, 2003, in exchange for “the amounts specified in the structured settlement options submitted to [plaintiff] at the court-supervised Mandatory Settlement Conference.” These settlement options consisted of seven proposed annuity payment schedules, each with a cost to defendants of $100,000. Defendants’ attorney stated in a declaration that she had given these settlement options to plaintiff at a settlement conference on November 28, 2005; that plaintiff’s attorney had told her plaintiff needed more time to consider which option best suited her needs; and that he had later told her that plaintiff agreed to settle the case—although he did not specify which option plaintiff had chosen.
Defendants moved to enforce the agreement pursuant to Code of Civil Procedure section 664.6. Plaintiff opposed the motion, contending she had signed the agreement under the mistaken belief that it released her attorney from representing her rather than releasing her claims against the defendants, and that it was unenforceable because it did not specify a settlement amount. The court granted defendants’ section 664.6 motion and ordered that plaintiff file a dismissal of her action against defendants. Defendants served a notice of entry of the order granting the section 664.6 motion on April 11, 2006. Because plaintiff did not dismiss her action, the court issued a show cause order. After a hearing, the court dismissed the case pursuant to California Rules of Court, rule 3.1385.
All statutory references are to the Code of Civil Procedure.
Effective January 1, 2007, the California Rules of Court have been reorganized. The current rule numbers will be substituted for those formerly in effect.
Petitioner filed her notice of appeal on July 6, 2006.
II. DISCUSSION
A. Timeliness of Appeal
Before turning to the merits of the case, we first consider defendants’ contention that this appeal must be dismissed as untimely. According to defendants, the April 5, 2006, order granting the motion to enforce the settlement pursuant to section 664.6 was appealable, all the issues raised in this appeal arise from that order, and plaintiff did not file her notice of appeal until after the time to appeal from that order had expired. (Cal. Rules of Court, rule 8.104(a)(2).) Plaintiff contends the appeal was properly taken not from the April 5, 2006, order, but from the June 6, 2006, dismissal.
The right to appeal is wholly statutory. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109-110.) In a civil case, this right is governed by section 904.1, which provides that “(a) [a]n appeal . . . may be taken . . . [¶] (1) [f]rom a judgment, except (A) an interlocutory judgment . . . .” Section 904.1 subdivision (a) lists various orders from which an appeal may be taken. Those orders do not include one granting a section 664.6 motion. Although a judgment entered after a court grants a section 664.6 motion is appealable where its effect is to dispose of the action (see Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205 (Viejo Bancorp)), we are aware of no authority holding that an ordergranting a section 664.6 motion is appealable before judgment has been entered.
The general rule is that a party may not file an appeal from a preliminary order entered prior to a final judgment. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 59, pp. 114-115.) However, “[i]t is the substance and effect of the adjudication, and not the form, which determine if the order is interlocutory and nonappealable, or final and appealable. [Citation.] If no issues in the action remain for further consideration, the decree is final and appealable. But if further judicial action is required for a final determination of the rights of the parties, the decree is interlocutory.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293-1294; see also Viejo Bancorp, supra, 217 Cal.App.3d at p. 205.)
The order granting the section 664.6 motion by its terms did not dispose of the case. Instead, it required plaintiff to file a dismissal of her action. When no dismissal was filed, the trial court held a hearing on an order to show cause and issued an order dismissing the action. Under the circumstances, we conclude the April 5, 2006, order did not finally dispose of the case and hence was not appealable.
An order dismissing an action constitutes a judgment. (§ 581d; see also Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1120, fn.1.)
Defendants also make a technical objection to plaintiff’s notice of appeal, pointing out that the notice indicates plaintiff is appealing from a judgment of dismissal entered on April 5, 2006, the date on which the court granted the section 664.6 motion. “There is . . . a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance . . . .” (Jarkieh v. Badagliacco (1945) 68 Cal.App.2d 426, 431.) “Technical objections to the presentation of appeals are not favored and, in the absence of a showing of injury to some right of the adverse party, will not be sustained.” (Sharick v. Galloway (1936) 12 Cal.App.2d 733, 736.) Here, the dismissal was ordered on June 6, 2006. The notice of appeal was filed one month later—well within the statutory period to appeal—and there is no indication that defendants were prejudiced by plaintiff’s technical mistake in her notice of appeal. Accordingly, we conclude the appeal was properly taken from the dismissal, despite the error contained in the notice of appeal.
B. Enforceability of Settlement Agreement
“Factual determinations made by a trial court on a section 664.6 motion to enforce a settlement must be affirmed if the trial court’s factual findings are supported by substantial evidence. [Citations.] Other rulings are reviewed de novo for errors of law. [Citation.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815 (Weddington).) Whether the material terms of a settlement are explicitly defined and whether the parties acknowledged their understanding of and agreement to those terms are questions of fact that we review for substantial evidence. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)
Plaintiff contends the settlement agreement is unenforceable because it does not specify a settlement amount. The agreement does, however, provide that defendants will pay plaintiff “the amounts specified in the structured settlement options submitted to Diana Pettinicchi (‘plaintiff’) at the court-supervised Mandatory Settlement Conference (or as close as practical to those amounts given the potential change in interest rates following the November 28, 2005 Mandatory Settlement Conference).”
“A settlement agreement which incorporates other documents can be enforced pursuant to section 664.6, but only if there was a meeting of the minds regarding the terms of the incorporated documents.” (Weddington, supra, 60 Cal.App.4th at p. 814.) As stated in Williams Constr. Co. v. Standard-Pacific Corp. (1967) 254 Cal.App.2d 442, 454, “ ‘For the terms of another document to be incorporated into [a contract] executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.’ ”
The evidence in the record amply supports the conclusion that a meeting of the minds took place here. The settlement agreement indicates that plaintiff will receive an “initial payment of $100,000,” and provides that defendants will pay the amounts specified in the structured settlement options presented to plaintiff at the November 28, 2005, settlement conference. According to the unrebutted declaration of defendants’ attorney, defendants presented plaintiff with seven structured settlement options at the settlement conference. The options included seven proposed schedules of annuity payments, each with a total cost to defendants of $100,000. Defendants’ attorney drafted an agreement that did not specify an option because plaintiff informed defendants through her attorney that she needed more time to decide which settlement structure she preferred. There is no evidence, however, that plaintiff would not or did not agree to the settlement—the evidence indicated only that plaintiff needed more time to decide which among the structured settlements offered she would select. On this record, we must affirm the trial court’s determination plaintiff had released her claims in return for an initial payment of $100,000 and her choice among the seven annuity schedules in the structured settlement proposal.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.