Hampton-Mitchell v. Mitchell
Filed 6/20/12 Hampton-Mitchell v. Mitchell CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
TYISHA HAMPTON-MITCHELL,
Plaintiff and Appellant,
v.
KEL MITCHELL et al.,
Defendants and Respondents.
B228988
(Los Angeles
County Super.
Ct.
Nos. BC349521 and BC431414)
APPEAL from
a judgment of the Superior Court
of
County. Amy Pellman,
Judge. Affirmed in part and reversed in
part.
Law
Offices of Gregory R. Ellis and Gregory R. Ellis for Plaintiff and Appellant.
Levinson
Arshonsky & Kurtz, Richard I. Arshonsky, Helen Kim Colindres, and Anne C.
Manalili for Defendants and Respondents Steven E. Kenilvort and Nick Vanos,
Inc.
Gemmill,
Baldridge & Yguico, and Carlos V. Yguico; Robert J. Shulkin for Defendants
and Respondents Coldwell Banker Residential Brokerage Company and Consuelo
Olmos.
_______________________
Appellant Tyisha Hampton-Mitchell
appeals from the trial court’s order granting the motion filed by respondents
Steven Kenilvort, Nick Vanos, Inc., Coldwell Banker Residential Brokerage
Company, and Consuelo Olmos (collectively, Respondents) to enforce a
Code of Civil Procedure section 664.6.
settlement agreement entered into by the parties at a private mediation is
unenforceable under section 664.6 because Coldwell and Olmos did not sign the
agreement until a week after the mediation, and Kenilvort and Vanos did not sign
the agreement at all. She also argues
that the settlement agreement is unenforceable under general contract
principles because it is fatally uncertain in its material terms. For the reasons set forth below, we affirm
the trial court’s order granting the motion to enforce the settlement agreement
as to Coldwell Banker and Olmos, but reverse the order granting the motion as
to Kenilvort and Vanos.
I.
Wrongful Transfer Action
This action arises out of the sale
of real property by Hampton-Mitchell’s former husband, Kel Mitchell. Hampton-Mitchell and Mitchell were married in
April 1999, and purchased a residential property in May 1999. In connection with that purchase,
Hampton-Mitchell signed a quitclaim deed transferring her interest in the
property to Mitchell. In August 2005,
Mitchell filed a petition for dissolution of the marriage. In March 2006, during the pendency of the marital
dissolution proceedings, Mitchell sold the property to Kenilvort. Vanos provided Kenilvort with a loan to
purchase the property, which was secured by a deed of trust. Olmos, a real estate agent for Coldwell
Banker, acted as Mitchell’s agent in his purchase of the property in 1999, and
in his sale of the property to Kenilvort in 2006.
On March 23, 2006, following the
sale of the property to Kenilvort, Hampton-Mitchell filed a
Vanos, Olmos, and Coldwell Banker. In a
fifth amended complaint, Hampton-Mitchell alleged that the property was a
community asset which could not be sold by Mitchell without her consent. Hampton-Mitchell specifically alleged that,
at the time she signed the quitclaim deed, she was in the hospital due to
pregnancy complications, was told by Mitchell that she was signing paperwork to
facilitate financing for the purchase of the property, and never intended to
transfer her interest in the property to Mitchell. She further alleged that Kenilvort and Olmos
knew the property was the subject of a pending marital dissolution proceeding,
and knew the sale of the property to Kenilvort violated Mitchell’s fiduciary
duty to her. The complaint asserted
causes of action for quiet title, breach
of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud,
negligent misrepresentation, negligence, cancellation of instrument, and
reformation of instrument.
name="_ftnref2" title="">[2]
On October 20, 2006, the trial court related the civil
action to the pending family law action.
The parties thereafter litigated both cases for several years. On November 20,
2009, the family law court issued a statement of decision finding
the property sold to Kenilvort was the community property of Hampton-Mitchell and
Mitchell.
II.
Mediation and Stipulation for Settlement
Following the family law court’s
ruling, Hampton-Mitchell and Respondents agreed to participate in a private
mediation before a professional mediator.
between November 2009 and January 2010.
The fourth and final session, held on January 15, 2010, was attended by Hampton-Mitchell and her
counsel, counsel for Kenilvort and Vanos, and counsel for Coldwell Banker and
Olmos. No parties other than Hampton-Mitchell
were present at the mediation.
At the January 15, 2010 mediation session, a two-page
document entitled “Stipulation for Settlement†was signed by Hampton-Mitchell
and her counsel and by counsel for each of Respondents. It was not signed by any of Respondents on
that date. As set forth in the
agreement, Respondents agreed to pay Hampton-Mitchell the sum of $275,000 as
payment for the claims alleged in the complaints. Of that sum, Coldwell Banker and Olmos were
responsible for the payment of $25,000, and Kenilvort and Vanos were
responsible for the payment of $250,000.
Hampton-Mitchell agreed to sign a dismissal with prejudice, and to
accept the terms of the stipulation with the knowledge that she would be
“barred from proceedings against all defendant(s) in the future concerning this
matter.†Each of the settling parties
also agreed to sign full and complete mutual releases without any admission of
liability.
As further provided in the
Stipulation for Settlement, Kenilvort agreed to sign a deed to the property to
Hampton-Mitchell and Hampton-Mitchell agreed to sign a deed to the property to
Kenilvort. The deed transferring the
property from Hampton-Mitchell to Kenilvort, along with a stipulated judgment
for possession, would be held by Kenilvort’s counsel but not filed unless
Hampton-Mitchell failed to complete a sale or refinancing of the property in
nine months. In addition to a refundable
security deposit of $9,000, Hampton-Mitchell agreed to deposit nine months of
payments into an escrow account to be disbursed on a monthly basis during the
time she sought to sell or refinance the property. She also represented that the property was in
average condition and that the only current lien on the property was held by
Vanos.
The Stipulation for Settlement
stated that it was intended to be binding, enforceable, and effective as of
January 15, 2010, and that it reflected the final agreement between the parties
to the dispute. It also included a
provision granting the court “jurisdiction to enforce the terms and conditions
of the settlement pursuant to Code of Civil Procedure 664.6 upon noticed motion
of any party.â€
Within a week after the January 15,
2010 mediation session, both Olmos and an authorized officer of Coldwell Banker
signed the Stipulation for Settlement.
On or about January 22, 2010, counsel for Coldwell Banker and Olmos
circulated a copy of the agreement signed by his clients to counsel for the
other parties. Neither Kenilvort nor
Vanos ever signed the Stipulation for Settlement.
On February 4, 2010, the family law
court issued a further judgment in the marital dissolution proceeding. The court found that Mitchell had sold the
family residence without Hampton-Mitchell’s consent while she and the couple’s
minor children were still residing there.
The court further found that Mitchell had sold the residence at $425,000
below fair market value without ever marketing the property through proper real
estate sales channels. Based on its
finding that Mitchell fraudulently and maliciously breached his fiduciary duty
to the community in selling the residence, the family law court awarded 100
percent of the property to Hampton-Mitchell.
III.
Motion to Enforce the Stipulation for Settlement
On August 11, 2010, eight months after the mediation, Kenilvort and Vanos
filed a motion to enforce the Stipulation for Settlement pursuant to section
664.6. The motion was supported by
declarations from Kenilvort, Vanos, and their counsel, Richard Arshonsky. According to Arshonksy’s declaration, at the
time the parties entered into the Stipulation for Settlement at the mediation,
they also agreed to sign a subsequent settlement agreement that would describe
the terms of the stipulation in greater detail.
After the mediation, Arshonsky
prepared and circulated several drafts of a detailed settlement agreement to
counsel for the other parties.
Eventually, he was advised by Hampton-Mitchell’s counsel that
Hampton-Mitchell would not sign any subsequent agreement, and would not agree
to refrain from encumbering the property during the nine-month period that she
would hold title to the property while seeking to sell or refinance it.
In their supporting declarations, Kenilvort and Vanos stated that they
participated in each of the mediation sessions by communicating with their
counsel via telephone about any pertinent events. Kenilvort and Vanos also stated that, at the
final session on January 15, 2010, they authorized Arshonsky as their attorney
to sign the Stipulation for Settlement on their behalf. According to Kenilvort and Vanos, it was
their understanding at the time of the mediation that all of the parties would
sign a subsequent agreement detailing the terms of the Stipulation for
Settlement, but after some time, they were advised that Hampton-Mitchell would
not sign such agreement. As further set
forth in their declarations, Kenilvort and Vanos remained willing to perform
their obligations under the Stipulation for Settlement, provided that
Hampton-Mitchell complied with her obligations, including refraining from
encumbering the property except as necessary to purchase the property back from
Kenilvort and to pay off the loan provided by Vanos.
Coldwell Banker and Olmos joined in the motion to enforce the Stipulation
for Settlement. In a supporting
declaration, Jay Statman,
counsel for Coldwell Banker and Olmos, stated that he obtained the signatures
of his clients on the Stipulation for Settlement by January 22, 2010, and he
thereafter circulated the signed copy of the agreement to counsel for the other
parties. Statman also stated that, at
all relevant times, no party to the Stipulation for Settlement had communicated
a repudiation of the terms of the agreement.
Hampton-Mitchell opposed the motion to enforce the Stipulation for
Settlement on several grounds, including that the agreement was not signed by
each settling party, and that the terms of the agreement were fatally
uncertain.
legally unenforceable was the provision requiring her to deed the property back
to Kenilvort while simultaneously attempting to refinance the property or sell
it to someone else. In a supporting
declaration, Hampton-Mitchell further stated that it was her understanding that
the Stipulation for Settlement was not a final agreement and that the
settlement would not be binding unless all parties signed a subsequent
agreement.
On September 20, 2010, the trial court heard the motion. Counsel for Respondents asserted that the
statutory requirements of section 664.6 were satisfied because Coldwell Banker
and Olmos signed the Stipulation for Settlement within one week following the
mediation, and because Kenilvort and Vanos signed sworn declarations stating
that they had expressly authorized their attorney to enter into the Stipulation
for Settlement on their behalf. In
response, Hampton-Mitchell’s counsel argued that section 664.6 required that
each settling party sign the settlement agreement before judgment could be
entered pursuant to the statute and that a signed declaration authorizing an
attorney to sign on a client’s behalf was not sufficient. He further contended that Kenilvort and Vanos
could no longer sign the Stipulation for Settlement because the offer had been
withdrawn by his client. On the other
hand, Hampton-Mitchell’s counsel conceded at the hearing that the Stipulation
for Settlement could be separately enforced by Coldwell Banker and Olmos
because they both signed the agreement before the offer had been withdrawn. Hampton-Mitchell’s counsel stipulated to the
entry of judgment in favor of Coldwell Banker and Olmos, but continued to
contest the enforceability of the Stipulation for Settlement as to Kenilvort
and Vanos.
In written orders issued on October 26, 2010, the trial court granted the
motion to enforce the Stipulation for Settlement as to all Respondents. The court specifically ordered Coldwell
Banker and Olmos to pay Hampton-Mitchell the sum of $25,000, and Kenilvort and
Vanos to pay Hampton-Mitchell the sum of $250,000, in exchange for a mutual
release of claims by each settling party.
The court also ordered Hampton-Mitchell to deposit into an escrow
account the sum of $12,653.75, of which $3,653.75 represented the monthly payments
owed on the property under the Stipulation for Settlement. Additionally, the court ordered Kenilvort to
deed the property to Hampton-Mitchell “for the sole purpose of
[Hampton-Mitchell] obtaining financing to repurchase the Property from
Kenilvort and to pay off Vanos upon notice of financing, during which period
[Hampton-Mitchell] may not transfer or cause any other liens to be placed on
the Property.†The court further ordered
Hampton-Mitchell to provide Kenilvort’s counsel with an executed grant deed
transferring the property back to Kenilvort, along with an executed stipulation
for judgment for possession in favor of Kenilvort. The stipulation for judgment would be held by
Kenilvort’s counsel but not filed unless Hampton-Mitchell failed to sell or
refinance the property within a nine-month period commencing on January 15,
2010. Following the trial court’s
orders, Hampton-Mitchell filed a timely appeal.
On appeal, Hampton-Mitchell
challenges the trial court’s orders.
Because it is undisputed that neither Kenilvort nor Vanos ever signed
the agreement as expressly required by section 664.6, we reverse the order as
to them. However, because
Hampton-Mitchell’s counsel stipulated before the trial court that the agreement
was separately enforceable by Coldwell Banker and Olmos, we affirm the order as
to Coldwell Banker and Olmos.
I.
Standard of Review
In a statutory settlement
proceeding under section 664.6, “[i]t is for the trial court to determine in
the first instance whether the parties have entered into an enforceable settlement.†(Osumi
v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) “The 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.’ [Citation.]†(Ibid.) “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. [Citation.]â€
(Murphy v. Padilla (1996) 42
Cal.App.4th 707, 711; see also Critzer v.
Enos (2010) 187 Cal.App.4th 1242, 1253 [where “claim of error ‘raises
a question of law concerning the construction and application of
section 664.6[, . . .] it requires independent review’â€].)
II.
Statutory Requirements of Section 664.6
Section 664.6 provides, in relevant
part: “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.†“‘Section 664.6 was enacted
to provide a summary procedure for specifically enforcing a settlement contract
without the need for a new lawsuit.’
[Citation.] The statute
recognizes that a settlement may be summarily enforced in either of two
situations: where the settlement was made orally before the trial court or
where it was made in writing outside the presence of the court.†(Elyaoudayan
v. Hoffman (2003) 104 Cal.App.4th 1421, 1428 (Elyaoudayan).)
In Levy v. Superior Court (1995) 10 Cal.4th 578 (Levy), the California Supreme Court considered whether a trial
court may enter judgment on a settlement pursuant to section 664.6 when the
written stipulation to settle is signed by a litigant’s attorney, but not by
the litigant personally. The Court
concluded that “the term ‘parties’ as used in section 664.6 . . . means the
litigants themselves, and does not include their attorneys of record.†(Id.
at p. 586, fn. omitted.). The Court
reasoned that, unlike other steps that an attorney takes in managing a lawsuit
on behalf of a client, settlement ends the lawsuit and “obviously implicates a
substantial right of the litigants themselves.â€
(Id. at p. 584.) “Accordingly, settlement is such a serious
step that it requires the client’s knowledge and express consent. [Citation.]â€
(Id. at p. 583.)
As the Supreme Court in
section 664.6, the Legislature “created a summary, expedited procedure to
enforce settlement agreements when certain requirements that decrease the
likelihood of misunderstandings are met. . . .
The litigants’ direct participation tends to ensure that the settlement
is the result of their mature reflection and deliberate assent. This protects the parties against hasty and
improvident settlement agreements by impressing upon them the seriousness and
finality of the decision to settle, and minimizes the possibility of
conflicting interpretations of the settlement.
[Citations.] It also protects
parties from impairment of their substantial rights without their knowledge and
consent.†(Levy, supra, 10 Cal.4th
at p. 585, fn. omitted.) Because the
settlement agreement in Levy was
signed by the litigants’ attorneys but not by one of the litigants personally,
the Court held that it could not be enforced under the summary procedure of
section 664.6. (Id. at p. 586.)
In Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700 (
the holding in Levy to a motion to
enforce an oral settlement agreement under section 664.6. The attorneys for the parties had orally
stipulated to a settlement before the trial court, but the plaintiff never
personally acknowledged to the court his acceptance of the terms of the
agreement. The Johnson court held that “[a]bsent this personal involvement, the
agreement is not enforceable under section 664.6.†(Id.
at p. 1708.) In so holding, the court
rejected the argument that the plaintiff’s involvement in the settlement
negotiations was sufficient to permit enforcement under the statute based on
his attorney’s oral acceptance of the agreement. (Id.
at p. 1709.) Instead, the court
concluded that “[c]onsultation between plaintiff and his attorney during the
course of negotiations does not constitute the type of direct participation
contemplated by Levy. As Levy
makes clear, the litigant must personally acknowledge the settlement to the
court†to satisfy the strict requirements of section 664.6. (Ibid.)
III.
Enforceability of Stipulation for Settlement as
to Kenilvort and Vanos
Based on Levy, we conclude that
the trial court erred in granting the motion to enforce the Stipulation for
Settlement as to Kenilvort and Vanos.
seeking to enforce a settlement under section 664.6 must strictly comply with
the requirements of the statute. One of
section 664.6’s requirements is that the parties to a settlement must either
personally sign the writing constituting the settlement agreement or orally
assent to the terms of the settlement agreement before the court. Here, it is undisputed that neither Kenilvort
nor Vanos ever signed the Stipulation for Settlement, or orally agreed to the
terms of the Stipulation for Settlement in a proceeding before the trial
court. Under these circumstances,
Kenilvort and Vanos cannot enforce the Stipulation for Settlement utilizing the
summary enforcement procedures of section 664.6.
Kenilvort and Vanos contend that Levy
is not controlling because the settlement agreement in this case was not only
signed by counsel for each of the settling parties, but also was signed by
Hampton-Mitchell, the party against whom enforcement was sought. This claim, however, is contrary to settled
law. Since Levy, several cases have addressed whether the statutory
requirements of section 664.6 are met so long as the party against whom the
settlement is being enforced personally assented to its terms. Indeed, in Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299 (
that, based on the plain language of the statute, section 664.6’s “requirement
of a ‘writing signed by the parties’ must be read to apply to all parties
bringing the section 664.6 motion and against whom the motion is
directed.†(Id. at p. 306.) We observed
that such interpretation was also consistent with the purpose of the statute
since “‘[a] procedure in which a settlement is evidenced by one writing
and legitimizes the summary nature of the section 664.6 procedure.’†(Id.
at p. 305.) Because the party seeking to
enforce a written settlement agreement in Harris never signed it, we concluded that the statutory prerequisites
of section 664.6 were not satisfied. (
Our colleagues in Division Six reached a similar conclusion in
Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30 (
held that “[a] written settlement agreement is not enforceable under section
664.6 unless it is signed by all of the parties to the agreement, not merely
the parties against whom the agreement is sought to be enforced.†(Id.
at p. 37.) While acknowledging the
strong public policy in favor of settlement, the Court nevertheless affirmed
that “a party who wishes to invoke the summary procedure of section 664.6 to
enforce a written settlement must strictly comply with the signature
requirement of that section.†(
[plaintiffs] gave their personal consent to the terms of the oral Settlement –
as the parties against whom the Settlement is being enforced – does not obviate
the necessity of the personal consent of the remaining parties†for compliance
with section 664.6].)
Kenilvort and Vanos also argue that they satisfied the statutory
requirements of section 664.6 because they expressly authorized their attorney
to enter into the settlement on their behalf.
In support, they point to the uncontroverted evidence that, while not
physically present at the mediation, they regularly communicated with their
attorney during the course of the mediation and then granted him the express
authority to sign the resulting Stipulation for Settlement and to bind them to
it. This argument is unavailing. As explained in Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110 (
the rule that litigants themselves must sign a settlement for it to be
enforceable under section 664.6.†(Id.
at p. 1119.) In Gauss, for instance, the defendant expressly authorized a third
party entity to act as its exclusive agent in the defense and settlement of
asbestos-related claims alleged against it.
The Court of Appeal held that a settlement agreement signed by the
designated agent on the defendant’s behalf could not be enforced under section
664.6 because it had not been signed by the defendant personally. (Id.
at p. 1113.) The Court concluded that
“[s]ection 664.6, as construed by the Supreme Court in Levy, simply does not permit the use of its summary, expedited
procedures to enforce a settlement agreement signed only by a party’s
agent.†(Id. at p. 1121.) “Indeed,
a duly authorized attorney, who acts
as an agent of the client [citation] does not suffice to permit enforcement of
a settlement under section 664.6.†(
party’s attorney was not enforceable under section 664.6 because
principles to satisfy the requirements of the statute].)
Contrary to Respondents’ contention, the sworn declarations signed by
Kenilvort and Vanos purporting to consent to the terms of the Stipulation for
Settlement are likewise insufficient to satisfy the requirements of section
664.6. The declarations were signed
almost eight months after a settlement was reached at the January 15, 2010
mediation and were submitted as part of a section 664.6 motion brought by
Respondents to enforce the Stipulation for Settlement. The declarations further reflect that, at the
time of signing, Kenilvort and Vanos were aware that Hampton-Mitchell was
disputing the terms of the Stipulation for Settlement by refusing to sign a
detailed settlement agreement in accordance with the stipulation. Additionally,
although both Kenilvort and Vanos stated in their declarations that they were
willing and ready to abide by the Stipulation for Settlement, they made their
assent to the agreement expressly contingent upon Hampton-Mitchell’s concession
to a term that was then in dispute, namely whether the property could be
encumbered by other liens while title was in Hampton-Mitchell’s name. Under these circumstances, the after-the-fact
declarations submitted by Kenilvort and Vanos in support of their section 664.6
motion are simply not equivalent to the timely signing of a written
settlement agreement or oral consent to a settlement agreement in open
court.
For these reasons, Kenilvort’s and Vanos’s reliance on
is misplaced. In Elyaoudayan, an oral settlement agreement was recited on the record
and was personally consented to by some, but not all, of the parties. The parties who were not present to consent
later signed a stipulation attaching a transcript of the court proceeding at
which the settlement was recited. (
parties agreed to the settlement in one form or the other or both,†it was
enforceable under section 664.6 notwithstanding the “‘mix and match’ approach
to the manner of agreement.†(Id.
at p. 1432.) As the Court observed,
“[n]othing in the statutory language suggests that, in a multiparty action,
in the same manner. And 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.)
In this case, however, it is
undisputed that Kenilvort and Vanos never signed the Stipulation for Settlement
or orally agreed to be bound by the Stipulation for Settlement before the trial
court. Instead, they authorized their
attorney to sign the settlement agreement for them and then waited some eight
months to acknowledge their personal assent to the agreement, the terms of
which were then in dispute. As
discussed, neither the attorney’s authorized signature on the Stipulation for
Settlement nor the declarations that Kenilvort and Vanos submitted in support
of their motion to enforce the settlement are sufficient to establish an
enforceable agreement under section 664.6. (See, e.g., Sully-Miller, supra, 103
Cal.App.4th at p. 37 [party’s belated signing of settlement agreement to comply
with section 664.6 did not render it enforceable under the statute because “[a]
party’s signature fails to convey . . . knowledge and consent unless it is
contained in a document that was clearly intended by that party to be a binding
settlement agreementâ€]; Critzer v. Enos,
supra, 187 Cal.App.4th at pp.
1258-1259 [party’s signing of settlement agreement three and one-half months
after other parties orally consented to settlement in open court did not permit
enforcement of agreement under section 664.6].)
Respondents suggest that it would undermine the strong public policy
encouraging settlement to preclude Kenilvort and Vanos from enforcing the
Stipulation for Settlement through section 664.6. In support of this claim, they note that the
settlement was reached after nearly four years of litigation and over the course
of multiple intensive mediation sessions.
Respondents also assert that Hampton-Mitchell should be equitably
estopped from repudiating the Stipulation for Settlement because she benefited
from the settlement by continuing to reside in the property for eight months
after signing the agreement. However,
the law is clear that “[b]ecause 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.â€
(Sully-Miller,
enforcing settlement agreements under section 664.6 is not exclusive. It
is merely an expeditious, valid alternative statutorily created. [Citation.]
Settlement agreements may also be enforced by motion for summary
judgment, by a separate suit in equity or by amendment of the pleadings to
raise the settlement as an affirmative
defense.’ [Citations.]†(Gauss,
supra, 103 Cal.App.4th at
p. 1122.) We express no opinion as
to the merits of these alternative enforcement mechanisms in this case. Rather, we hold that the failure of Kenilvort
and Vanos to sign the Stipulation for Settlement, or to orally agree to
the terms of the Stipulation for Settlement before the trial court, precludes
them from utilizing the expedited summary procedure of section 664.6. The trial court’s order granting the motion
to enforce the Stipulation for Settlement as to Kenilvort and Vanos must
therefore be reversed.
IV.
Enforceability of Stipulation for Settlement as
to Coldwell Banker and Olmos
We reach a different conclusion
with respect to Coldwell Banker and Olmos.
It is undisputed that both Olmos and an authorized officer of Coldwell
Banker signed the Stipulation for Settlement within one week following the
January 15, 2010 mediation. It is also
undisputed that counsel for Coldwell Banker and Olmos circulated a copy of the
Stipulation for Settlement signed by his clients to counsel for the other
settling parties, including Hampton-Mitchell, on or about January 22,
2010. At the time Coldwell Banker and
Olmos signed the Stipulation for Settlement, Hampton-Mitchell had not revoked
her offer to settle or otherwise repudiated the terms of the agreement. Thus, unlike Kenilvort and Vanos, Coldwell
Banker and Olmos complied with the statutory requirements of section 664.6 by
personally signing the written settlement agreement.
Hampton-Mitchell argues that the
Stipulation for Settlement cannot be enforced by Coldwell Banker or Olmos
pursuant to section 664.6 because the agreement was not signed by all of the
settling parties at the same time. She
also asserts that there is no evidence to support an inference that the parties
intended the Stipulation for Settlement to be severable if any portion of the
agreement was held to be unenforceable.
We need not address the merits of these arguments, however, because
Hampton-Mitchell’s counsel expressly conceded before the trial court that the
Stipulation for Settlement was separately enforceable by Coldwell Banker and
Olmos based on their timely signatures.
Specifically, at the hearing on
Respondents’ section 664.6 motion, Hampton-Mitchell’s counsel stated on the
record as follows: “Ms.
[Hampton-]Mitchell made an offer to Mr. Kenilvort. Mr. Kenilvort didn’t sign it. She’s withdrawing the offer. If Mr. Kenilvort had signed that
document at any time prior to my client saying she repudiates the agreement, I
would have a problem. And that’s why I’m
willing to concede to Coldwell Banker, because they did that. They did exactly that. Even though they didn’t sign it on the date,
they signed it before my client filed a declaration withdrawing this
offer. Mr. Kenilvort has never signed
that document and can’t sign it now that she’s withdrawn the offer. [¶] So
I’d stipulate that [as to] Coldwell Banker and Connie Olmos, the court should
enter the judgment in favor of them, but [as to] Mr. Kenilvort should
not.†Given the express stipulation of
her counsel, Hampton-Mitchell has abandoned any claim on appeal that the trial
court erred in granting the motion to enforce the Stipulation for Settlement as
to Coldwell Banker and Olmos. (See
183 Cal.App.3d 1108, 1127 [“‘issues raised and then abandoned in the trial
court . . . cannot be considered on appeal’â€]; Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 969 [“one cannot
raise on appeal material issues which he abandons at the trial level as a
matter of strategy and purely for his own advantageâ€].)
Hampton-Mitchell contends that,
under section 664.6, her counsel was precluded from stipulating to the
enforceability of the settlement as to Coldwell Banker and Olmos because
Hampton-Mitchell did not personally stipulate that the agreement with them was
enforceable. She reasons that if an
attorney cannot agree to a settlement on behalf of a client for purposes of
section 664.6, then the attorney likewise cannot agree on the client’s behalf
to the enforceability of a settlement agreement not signed by all of the
settling parties. This argument does not
withstand scrutiny. In stipulating that
judgment should be entered in favor of Coldwell Banker and Olmos on the section
664.6 motion, Hampton-Mitchell’s counsel was not purporting to enter into a
binding settlement agreement on his client’s behalf. Hampton-Mitchell already had entered into the
settlement agreement on her own behalf by signing the Stipulation for
Settlement at the mediation. Instead,
Hampton-Mitchell’s counsel was conceding the legal merits of the motion to
enforce the Stipulation for Settlement as to Coldwell Banker and Olmos on
the ground that they both signed the agreement before it was repudiated by
his client. Nothing in the language of
section 664.6 precludes a party’s counsel from stipulating to the
enforceability of a settlement personally agreed to by his or her client in
response to a statutory motion to enforce that settlement agreement.
Because her counsel expressly
stipulated to the entry of judgment in favor of Coldwell Banker and Olmos,
Hampton-Mitchell cannot challenge the order enforcing Stipulation for
Settlement as to those two parties on appeal.
We accordingly affirm the trial court’s order granting the motion to
enforce the Stipulation for Settlement as to Coldwell Banker and Olmos.
DISPOSITION
The order granting the motion to
enforce the Stipulation for Settlement as to Coldwell Banker and Olmos is
affirmed. The order granting the motion
to enforce the Stipulation for Settlement as to Kenilvort and Vanos is
reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
Coldwell Banker and Olmos shall recover their
ZELON, J.
We concur:
PERLUSS, P.
J.
JACKSON, J.
name="_ftn1" title="">[1] All
further statutory references are to the Code of Civil Procedure.
name="_ftn2" title="">[2] On
November 17, 2009, Vanos filed a cross-complaint against Hampton-Mitchell and
Mitchell for imposition of an equitable lien.
On January 21, 2010, a default was entered on the cross-complaint
against Mitchell only.
