Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C9904100
Siggins, J.
Susan and James Steele appeal from the trial court’s denial of their motion to enforce a settlement and from an award of attorney fees to defendants Chris Spina, Carrie Spina, and Spina General Contracting, Inc. (collectively, Spina). We conclude the trial court correctly determined that it lacked jurisdiction over the Steeles’ motion, and properly awarded attorney fees to Spina as the prevailing party. We therefore affirm the trial court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
The Steeles filed a complaint against Spina in October 1999. In October 2001, the parties placed the terms of their settlement on the record before the trial court. Those terms included payments to the Steeles by two insurance carriers following an arbitration or mediation, and execution of a promissory note secured by a deed of trust on the Spina residence. During the discussion before the court, Spina’s counsel stated: “The Court, as I understand, will maintain jurisdiction over this through completion of a written settlement agreement. Over this [as an en]forceable agreement as I understand it.” Judge Trembath also observed that counsel for one of the insurance carriers “concurred that the Court could retain jurisdiction” to determine the appropriate remedies “in the unlikely event that there would be any problem” during the process of arbitration and payment by the insurance carriers.
After the terms of the settlement were established on the record, and the parties approved those terms, the court stated: “It is clear to the Court that the parties understand all of the terms and conditions, that it is a voluntary settlement, that the parties understand and desire that the Court approve the settlement, and accordingly I will declare this a judicially enforceable settlement under [Code of Civil Procedure] Section 664.6.” The court then discussed with counsel the preparation of the release and other papers necessary to memorialize the agreement.
The parties’ January 2002 written settlement agreement specified circumstances that would permit the Steeles to file a motion to enforce the settlement. The agreement further stated: “20. This is a judicially supervised settlement, and the court shall retain jurisdiction until all terms and conditions are met. In particular, should a defaulting act be alleged to have occurred under the terms of this Agreement, the court shall retain jurisdiction to determine whether a breach of the Settlement occurred and a Confession of Judgment should be entered against Spina. The court will also determine whether the prevailing party shall be entitled to attorneys’ fees and costs should enforcement of this settlement become necessary.” In March 2002, the case was dismissed with prejudice at the Steeles’ request. There is no indication the settlement agreement was ever filed or presented to the court before the case was dismissed.
In July 2008, the Steeles filed their motion pursuant to Code of Civil Procedure section 664.6, seeking to clarify certain terms of the settlement and their operative effect. During the hearing on the motion, Judge Maddock stated he had checked the court’s file and found “no minute order that says that the Judge agrees to continue jurisdiction past the filing [of the request for dismissal].” Judge Maddock explained that “the case was dismissed, and the court did not make a minute order retaining jurisdiction. [¶] And I’ve had this in other cases with other attorneys. When parties want the court to retain jurisdiction, you get a special order signed by the judge, either a conditional settlement with the time period out to which we set a tickler or a specific minute order that’s dismissed for all purposes except that the court retains jurisdiction to enforce under 664.6.”
All further statutory references are to the Code of Civil Procedure.
Judge Trembath retired after the case was dismissed, and the section 664.6 motion was heard by Judge Maddock.
Judge Maddock denied the Steeles’ motion to enforce the settlement, and concluded that “[t]he filing of the dismissal by plaintiff of the entire action on March 4, 2002, ended this Court’s jurisdiction. The above determination is made without prejudice to a showing of the Court’s retained jurisdiction.” The court also determined that Spina was the prevailing party on the motion, and awarded Spina $2,500 in attorney fees, stayed for 90 days pending a possible motion for reconsideration.
The Steeles moved for reconsideration and attached a transcript of the October 2001 hearing before Judge Trembath. Judge Maddock denied the motion for reconsideration, lifted the stay on the award of attorney fees, and concluded: “Judge Trembath clearly retained jurisdiction only so far as requested[,] which was through the signing of the settlement agreement, [and] there was never a request to retain jurisdiction beyond the dismissal of the complaint.... [¶] Absent such a request and agreement by the Court, jurisdiction under [section] 664.6 was lost on March 4, 2002, the moment the dismissal was filed.” The Steeles timely appealed.
DISCUSSION
A. Retention of Jurisdiction by the Trial Court
Section 664.6 provides: “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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
“[R]equests for retention of jurisdiction must be made prior to a dismissal of the suit. Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433.)
Section 664.7 creates an exception to the requirement that the request for retention of jurisdiction must be made by “the parties themselves” for certain construction defect actions. (See Wackeen v. Malis, supra, 97 Cal.App.4th at p. 440, fn. 8.) The parties have not discussed, and we need not address, whether that exception would apply to this case.
The Steeles claim the court retained jurisdiction to enforce their settlement with Spina, based in large part on Judge Trembath’s general statement at the conclusion of the settlement hearing that he would “declare this a judicially enforceable settlement under [section] 664.6.” But Judge Maddock concluded that “Judge Trembath clearly retained jurisdiction only so far as requested[,] which was through the signing of the settlement agreement, [and] there was never a request to retain jurisdiction beyond the dismissal of the complaint.” The Steeles have not shown they made an “express,... clear and unambiguous” request for the court to retain jurisdiction after dismissal of the action. (See Wackeen v. Malis, supra, 97 Cal.App.4th at p. 440.) Contrary to the Steeles’ position on appeal, the language of section 664.6 is discretionary and does not require the court to retain jurisdiction until full performance of a settlement is complete, rather than only until a settlement agreement has been signed. The Steeles have cited no authority that would support their proffered interpretation.
The language in the parties’ written settlement agreement could not effectively vest the trial court with retained jurisdiction after the case was dismissed with prejudice: “Subject matter jurisdiction cannot be conferred by consent, waiver or estoppel.” (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008; see also Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1108, 1113.) “Wackeen does not stand for the proposition that parties may confer jurisdiction on trial courts by including language in a settlement agreement but not asking the court to retain jurisdiction.” (Hagan, supra, at p. 1010; see also Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182 [“The court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal.”].) Because the Steeles did not satisfy the formal requirements for the court to retain jurisdiction under section 664.6, the trial court lost jurisdiction when the action was dismissed, and the Steeles were precluded from enforcing their rights under the settlement agreement pursuant to section 664.6. (See Wackeen v. Malis, supra, 97 Cal.App.4th at pp. 433, 437; Hagan, supra, at pp. 1007-1008.)
While the summary procedure provided by section 664.6 is unavailable to the Steeles, they may be able to seek relief by means of a timely separate action, as noted by their counsel during the hearing before Judge Maddock. (See Wackeen v. Malis, supra, 97 Cal.App.4th at pp. 433, 441 & fn. 9; see also Hagan Engineering, Inc. v. Mills, supra, 115 Cal.App.4th at p. 1011.) “Of course, we express no opinion on the merits [or availability] of any such alternatives, as they fall beyond the scope of this appeal.” (Housing Group v. United Nat. Ins. Co., supra, 90 Cal.App.4th at p. 1115.)
B. Attorney Fees Award
Both parties requested attorney fees in the trial court. The Steeles argue, without citation to authority, that “[o]nce the lower court (improperly) determined it had no jurisdiction, it also had no jurisdiction to grant attorney’s fees.” The Steeles also contend the award of attorney fees was premature because the trial court had not yet considered the merits of their section 664.6 motion. But the Steeles do not refute Spina’s argument that they would have been entitled to attorney fees had they prevailed on their motion. They are therefore liable for such fees under the principles enunciated in Hsu v. Abbara (1995) 9 Cal.4th 863, 870-871: “It is now settled that a party is entitled to attorney fees under section 1717 ‘even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney’s fees had it prevailed.’ [Citations.] [¶] This rule serves to effectuate the purpose underlying section 1717 [which] ‘was enacted to establish mutuality of remedy’.... To achieve its goal, the statute generally must apply in favor of the party prevailing on a contract claim whenever that party would have been liable under the contract for attorney fees had the other party prevailed.” The trial court did not err when it awarded $2,500 in attorney fees to Spina as the prevailing party on the Steeles’ motion to enforce the settlement.
DISPOSITION
The orders of the trial court are affirmed.
We concur: McGuiness, P.J., Pollak, J.