Caldwell v. Masuda

Filed 2/23/07 Caldwell v. Masuda CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Marthea Caldwell (plaintiff) appeals from a judgment entered after the trial court granted the motion of Donald Masuda and the Law Office of Donald Masuda (collectively, defendant) to enforce a settlement agreement pursuant to section 664.6 of the Code of Civil Procedure, which states in pertinent 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. (Further section references are to the Code of Civil Procedure).

On appeal, plaintiff contends the court erred in entering judgment because there was no evidence of [a] settlement. As we will explain, plaintiff has failed to establish error. Thus, we shall affirm the judgment.

BACKGROUND

The parties agree that the underlying claim is for legal malpractice. What remains in dispute is whether they reached an agreement to settle plaintiffs claim.

On December 15, 2005, the parties participated in a voluntary settlement conference. Then, asserting that the parties reached an agreement that day, defendant moved to enforce the settlement agreement by the entry of a judgment pursuant to the terms of that agreement. ( 664.6.)

The trial court granted the motion, ruling: On the date of the settlement conference, defendant agreed in open court before Judge Virga to pay plaintiff $2,000 to settle the case. At the time of the settlement conference plaintiff declined to settle, however later that afternoon she wrote a letter to defendant specifically accepting the amount of the settlement offer made that morning. (See Ex[h]. 1 to motion) Plaintiff does not deny that at the time she wrote the letter she had agreed to settle the case for that amount. Rather, she contends that since both parties did not enter the settlement in the same manner, either in writing or orally before the court, it is unenforceable. However, as long as each party agrees in a manner that complies with CCP 664.6, the settlement is enforceable. See Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429 [settlement was valid even though some of the parties signed the written settlement agreement only and were not present for the oral settlement in court]. What is more important is that there was an offer (by Defendant at settlement conference) and an acceptance (by plaintiff later that day by writing).

The court then entered judgment in plaintiffs favor in the amount of $2,000. When plaintiff refused defendants tender of a settlement check, the court permitted defendant to deposit the settlement amount into the courts trust account.

DISCUSSION

Plaintiff contends the trial court erred in finding that she agreed with defendant to settle the legal malpractice claim. She argues that the letter she wrote to defendant on December 15, 2005, was inadequate to constitute her acceptance of his settlement offer because, in her view, the letters language does not indicate an unequivocal acceptance and because she never intended [it] to be submitted to the courts.

Plaintiff has elected to proceed on a clerks transcript only. (Cal. Rules of Court, rule 8.120.) Consequently, the appellate record does not contain a reporters transcript of the hearing on the contested motion to enforce the settlement agreement or of any other hearing. It also does not contain the letter that, the trial court concluded, constituted plaintiffs acceptance of defendants settlement offer. And while we have been presented with defendants notice of motion and defendants memoranda of points and authorities, the attorney declaration and exhibits supporting the motion are not in the appellate record.

On appeal, we must presume that the trial courts judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the burden of the party challenging a judgment to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; she must also support arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Even though she is representing herself on appeal, plaintiff is held to the same restrictive procedural rules as an attorney. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)

Because plaintiff has provided us with only a partial clerks transcript, we must treat this as an appeal on the judgment roll, to which the following rules apply: Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation]. (Ford v. State of California (1981) 116 Cal.App.3d 507, 514, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 177-179; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Cal. Rules of Court, rule 8.163.)

As we have noted, the appellate record does not contain the letter that, the trial court ruled, was plaintiffs acceptance of defendants settlement offer. Therefore, we must conclusively presume that the evidence is ample to sustain the [trial courts] findings (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154), i.e., that plaintiffs letter specifically accept[ed] the amount of the settlement offer[.]

Having found plaintiffs letter constituted an acceptance of defendants settlement offer, the trial court correctly made the legal conclusion that plaintiffs written acceptance of defendants oral settlement offer gave rise to an agreement enforceable under section 664.6. (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1428 [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, italics omitted].)

Because plaintiff has not provided us with an adequate record to overcome the presumptions in favor of the trial courts judgment, we must reject her claim of error.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

DAVIS , J.

RAYE , J.

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