Cross v. Meza

 

 

 

 

Filed 7/17/14  Cross v. Meza CA6

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 

 
>

JUAN CROSS et al.,   Plaintiffs and Respondents,       v.   DOMINGO MEZA,   Defendant and Appellant.

H038960      (Monterey County       Super. Ct. No. M109800)

 

            Appellant
is Domingo Meza, the defendant in the underlying action for personal injuries
related to a car accident.  He appeals a judgment entered pursuant to href="http://www.fearnotlaw.com/">Code of Civil Procedure section 664.6href="#_ftn1" name="_ftnref1" title="">[1]
on the grounds that his attorney made a mistake at the settlement conference.  (§ 473, subd. (b) ).  

Statement of the Case

            The instant
case arises from the settlement of a personal href="http://www.sandiegohealthdirectory.com/">injury action that was filed
in December 2010.  On November 4, 2011, the Monterey County Superior
Court held a mandatory settlement conference. 
During the settlement conference, both plaintiffs Juan and Angelita
Cross and their counsel were personally present in court.  Counsel
of record for defendant Domingo Meza’s insurance carrier, Edward Cullen, was
not personally present, because he was recovering from knee surgery.  In his place, attorney Susan Grey made a
special appearance.  A representative for
the insurance carrier was not present, but was available to Ms. Grey by
telephone standby.href="#_ftn2" name="_ftnref2"
title="">[2]

            At the
conference, a settlement was reached that provided that defendant’s insurance
carrier would pay $19,900 to Juan Cross, and $17,400 to Angelina Cross.  The specific terms were placed on the record
in court.  In addition, Ms. Grey stated
that she was “thoroughly briefed on the case [and] was aware that additional
settlement talks between the carrier and Mr. Cullen were to occur the morning
of the settlement conference.”  Ms. Grey
also represented to the court that she had “personally verified the settlement
authority on both the Plaintiffs by phone outside the courtroom this
afternoon.” 

            On February 7, 2012, plaintiff filed a
motion to enter judgment after settlement conference pursuant to section
664.6.  Defendant opposed the motion on
the ground that Ms. Grey was mistaken about the amount to which she was
authorized to settle.  Specifically, defendant
argued the settlement authority was
actually for payment of $22,578 to plaintiffs, rather than the $37,100 to which
Ms. Grey agreed at the settlement conference. 
 

At the opposition to defendant’s
section 664.6 motion, defendant brought Ms. Grey to court to communicate
with the judge about her mistake in settlement. 
At the hearing, Ms. Grey was not sworn as a witness, nor did she provide
a sworn declaration of her mistake.  She
did, however, tell the court, “I was thoroughly briefed on the case; was aware
that additional settlement talks between the carrier and Mr. Cullen were to
occur the morning of the settlement conference. . . .  [¶] I had a reasonable belief that there may
be increased authority on the file because of these earlier negotiations
between Mr. Cullen and carrier.  I came
to court, and I can verify that I went out and I called the carrier twice.  I spoke to someone personally.  I was referring to the same document as they
were referring to. . . .  [¶] I spoke to
that person in person.  It was a live
voice.  I made notations in Plaintiff’s
brief confirming what my understanding was from talking with them. . . .  [¶] I asked them to verify the amount in Plaintiff’s
settlement conference demand. . . .  >I can only assume that they understood it
meant our offer, not demand.  [¶] And
I verified a number and made notations on the sheet for the wrong amount.  Then I came into court and I said on the
record that I had personally spoken to the carrier and that I had verified
authority.”

            After
hearing Ms. Grey’s statements at the opposition to the motion, the court opined
that with the information it had, it did not consider the conduct in settling
the case to be Ms. Grey’s fault; “rather it seems to be a more systemic problem
where the carrier simply was not—was not complying with its obligation [to
attend the settlement conference].”  In
addition, defendant did not provide any declaration from the carrier attesting
to the mistake in settlement authority. 
Based on what the court had before it when considering whether to enter
judgment, the court determined that Ms. Grey had not made a mistake for which
defendant were entitled to relief. 

            The court
granted plaintiff’s motion, and entered judgment pursuant to section 664.6
according to the terms placed on the record at the mandatory settlement
conference.  Defendant filed a notice of
appeal.

 

 

 

Discussion

            Defendant
asserts the trial court erred in granting plaintiff’s motion to enter judgment
pursuant to section 664.6, because defendant’s counsel made a mistake at the
settlement conference regarding the amount of money for which she could settle
the case.    

            Section
664.6 provides a statutory procedure for the enforcement of a settlement
agreement in pending litigation:  â€œIf the
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.”

            The California Supreme Court
has established the following standard for the trial court’s ruling upon a
section 664.6 motion:  â€œ[I]n 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 the 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 the 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.”
 (In
re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)  The standard governing the appellate court’s
review of the trial court’s factual determinations on a section 664.6 motion to
enforce a settlement is whether the trial court’s ruling is supported by substantial
evidence.  (Ibid.)

            Here,
the statutory conditions of section 664.6 were met, because the parties entered
into a stipulation to settle the litigation on the record.  Specifically, plaintiff’s counsel stated on
the record, “Defendant will in full settlement of all claims, will pay to Plaintiff
Juan Cross the amount of $19,900, and to Plaintiff Angelina Cross, the amount
of $17,400.  In exchange, a release and
dismissal of all claims will be filed and offered to defendant.”  Following the statement by plaintiff’s
counsel, the court inquired of defense counsel whether she had “authority on
behalf of the Defendants to place this on the record so that it is enforceable
under [section] 664.6?”  To which defense
counsel responded, “I just verified—personally verified the settlement
authority on both the Plaintiffs by phone outside the courtroom this
afternoon.”  The court confirmed that
counsel had authority to settle the case, asking her, “So you do have such
authority?”  To which she responded,
“Yes, I do.”

            Defendant
argues on appeal that the court should have denied plaintiff’s motion to enter
judgment, because of Ms. Grey’s mistake in settling the case for $37,300 rather
than $22,578 that was authorized by the carrier.  He bases his argument on the provisions of
section 473, subdivision (b) which provides, in relevant part:  â€œThe court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal,
order, or other legal proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.”  The section requires the application for
relief be accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect.  The trial court’s ruling on a discretionary
motion for relief pursuant to section 473, subdivision (b) is reviewed for an
abuse of discretion.  (>Zamora> v. Clayborn Contracting Group, Inc.
(2002) 28 Cal.4th 249, 257.)

            Defendants
have not established that the court abused its discretion in refusing to grant
relief pursuant to section 473, subdivision (b).  Ms. Grey’s statement to the court does not show
that she made a mistake.  In fact, her
statement demonstrates she knew the circumstances of the case and the ongoing settlement
negotiations, acted diligently in communicating with the carrier to the point
of speaking with a live person on the phone while she was in court, and
confirmed with the carrier that she had authority to settle the case.  Ms. Grey’s statement shows that any error
that may have occurred was committed by the representative for the carrier who
spoke to Ms. Grey and verified Ms. Grey’s authority to settle the case.        

            We find the
court’s granting of defendant’s section 664.6 motion was supported by
substantial evidence.  As stated above,
the material terms of the settlement were clearly stated on the record.  The court specifically questioned both
plaintiffs Juan and Angelina Cross whether they understood the terms of the
settlement, whether they had any questions, and whether they agreed to the
terms.  Both plaintiffs clearly and
unequivocally agreed to the terms on the record.

            Moreover,
there was substantial evidence to support the court’s finding that Ms. Grey
had the authority to settle the matter on behalf of the carrier, and that the
carrier agreed to the terms of the settlement as stated. Ms. Grey repeatedly
told the court she had the authority, both directly and when questioned by the
court.  In addition, when presented with
Ms. Grey’s statement at the opposition to the section 664.6 motion, the court
concluded that Ms. Grey did not make a mistake at the settlement conference;
rather, if there was any fault to assign, it was to the insurance carrier
representative. 

            The court’s
entry of judgment pursuant to section 664.6 was proper and was supported by
substantial evidence.  (In re Marriage of Assemi, supra, 7
Cal.4th 911.)




Disposition

            The
judgment is affirmed.

 

 

 

 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

____________________________________

PREMO, J.

 

 

 

 

 

 

____________________________________

MÁRQUEZ,
J.