JTS Development v. Cooper and Colletti

Filed 9/26/06 JTS Development v. Cooper and Colletti CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, James Bascue, Judge. Judgment amended and, as so amended, affirmed.

Stephan, Oringher, Richman & Theodora and Steven Brower for Defendants, Cross-Complainants and Appellants.

Sean E. Judge; and Everett L. Skillman for Plaintiff, Cross-Defendant and Appellant JTS Development, Inc.

Bremer Whyte, Brown & O’Meara and John V. O’Meara for Cross-Defendant and Respondent William G. Flieder.

______________________________________________

In these cross appeals, the defendants and cross-complainants, M. Scott Cooper and Debra Ann Colletti, individually and as trustees of the Cooper-Colletti Trust, (Cooper, Colletti and, together with their trust, are referred to collectively as the defendants), appeal from a judgment entered against them after the plaintiff’s motion to vacate a dismissal of the case was granted and a judgment entered to enforce one of two written settlement agreements.[1] That relief was granted to the plaintiff pursuant to a motion brought under Code of Civil Procedure sections 473 and 664.6.[2] Plaintiff is JTS Development, Inc., a licensed contractor (plaintiff).

Defendants contend plaintiff’s section 473 motion to vacate was not timely brought and plaintiff’s section 664.6 motion lacked an enforceable settlement agreement because (1) no agreement was ever finalized and (2) Colletti’s signature on it was signed by Cooper. We find there is no merit to any of those contentions.

Plaintiff has cross-appealed and challenges the trial court’s denial of attorney’s fees and costs associated with its motion. The settlement agreement has a provision for an award of fees and costs to the prevailing party in a section 664.6 motion brought to enforce its terms. We find the trial court erred in denying fees and costs to plaintiff. We will amend the judgment to provide for fees and costs, affirm the judgment as amended, and remand the case for a determination of a reasonable amount of trial and appellate court fees and costs.

BACKGROUND OF THE CASE[3]

1. The Complaint and Cross-Complaint

Plaintiff filed this suit on April 21, 2003. The complaint alleges plaintiff agreed to construct a single family house in Los Angeles for defendants and defendants failed to make progress payments to plaintiff. Defendants cross-complained against plaintiff, Judithe Siegel, William Flieder, and others, alleging the construction of their home was untimely and substandard.[4]

2. Settlement of the Case

The suit was mediated in 2004 (apparently in April or May), and the parties agreed on terms to settle their claims. Thereafter, the parties negotiated for several months to finalize the language of the settlement and ensure the settlement was funded by plaintiff’s insurance carriers. Under the mediated resolution, defendants would receive $450,000 from plaintiff’s insurers to resolve their cross-complaint. As noted below, this settlement agreement is sometimes referred to by the parties as the “global agreement.” Although the global agreement contains a provision stating it “contains the entire agreement among the parties and supersedes all prior and contemporaneous negotiations, understandings and representations” (italics added), it does not expressly preclude further negotiations and agreements.

Plaintiff, William Flieder, and the estate of Jeffrey Siegler also negotiated a separate agreement with defendants. According to plaintiff’s section 664.6 motion, those negotiations produced an agreement for defendants to pay $50,000 to plaintiff, Flieder and the estate of Siegel, which would be put in an account managed by plaintiff’s attorney and defendants, and the money would be first used to pay the subcontractors and materialmen who had not been paid for their work/materials associated with the construction of defendants’ house. However, the motion goes on to state that later defendant Cooper contacted plaintiff’s attorney, Sean Judge, in late August 2004, and based on their conversation, plaintiff agreed to reduce the money paid by defendants to $35,000 and the requirement that defendants and plaintiff’s attorney manage the money for the benefit of subcontractors and materialmen was deleted.[5]

On October 20, 2004, defendant Cooper sent to plaintiff’s attorney, Sean Judge, an e-mail (with a copy to defendants’ attorney) stating: “The agreement you faxed two days ago is fine with us. What is the status with everyone else, please?” The agreement to which Cooper’s e-mail refers is this second agreement whereby defendants would pay the $35,000. We will refer to it herein as the “collateral agreement.” It recites that the parties to that agreement are plaintiff, the estate of Jeffrey Siegel, and Flieder, as well as the defendants. It further mentions the existence of the other settlement agreement, the global agreement. The collateral agreement states that the global agreement provides for the payment of the $450,000 to defendants, and further states “[t]he parties now desire to settle, compromise and resolve all claims arising from and/or relating to [plaintiff’s, Flieder’s, and the estate of Jeffrey Siegel’s] claims against [defendants], and this Agreement shall reflect the intention of The Parties to that effect.” (Italics added.) By the collateral agreement, defendants agreed to segregate $35,000 from the $450,000 paid to them pursuant to the global agreement.

The collateral agreement specifically states that it would be executed by defendants, plaintiff, Flieder and the estate of Jeffrey Siegel.

Under the heading “Release,” the collateral agreement states the signing parties further agreed that in consideration “for these payments,” they would release each other from all claims arising out of this suit, and dismissals with prejudice would be filed as to all parties, including the subcontractors and suppliers, and plaintiff would release its mechanic’s lien against defendants’ residence and all claims arising from the recordation of the mechanic’s lien would be fully resolved. The payments to which the release refers are the $450,000 and the $35,000. Thus, the releases and the filing of the dismissal with prejudice were dependent on the making of “these payments.”

In a separate paragraph, still under the heading Release, the collateral agreement further recites that “[a]s between [defendants] and the other parties to this Agreement, this release of claims will take effect when [defendants] pay[] the sum of $35,000 to [the other parties to that agreement].” (Italics added.)

The collateral agreement also recites that its provisions are enforceable pursuant to section 664.6, and the prevailing party to such an enforcement “shall be entitled to attorney’s fees and costs arising from or related to such enforcement proceedings.” (Italics added.)

The collateral agreement was signed by plaintiff and Flieder on October 18 and by defendants on October 26, 2004. Apparently before Judithe Siegel had a chance to sign it on behalf of the estate of Jeffrey Siegel, three amendments to the collateral agreement, relating to the releases, were made.

A November 5 e-mail from defendant Cooper to plaintiff’s attorney, Sean Judge, with a copy to defendants’ attorney, Steven Brower, states: “This is conditionally delivered with the understanding that it will be effective only when we receive fully executed and delivered signatures from all parties and counsel on this and the global agreement. Thanks.” Plaintiff’s attorney e-mailed back the same day with a one-word answer: “Agreed.” The e-mail has reference to the amended collateral agreement, which was signed by defendants on November 5. Plaintiff and Flieder also signed it that same day, and it was signed by Judithe Siegel on behalf of Jeffery Siegel’s estate on an unknown date. Although there are signature spaces for plaintiff’s, defendants,’ the estate’s, and Flieder’s attorneys, apparently only plaintiff’s attorney has signed the amended collateral agreement. The amended collateral agreement contains the same provisions as the original collateral agreement, together with the three additional provisions in the “release” portion of the agreement, which are not relevant to this appeal.

By cover letter dated November 8, 2004, plaintiff’s attorney sent a court form entitled “request for dismissal“ to defendants’ attorney. The form requests dismissal of the complaint, cross-complaint and mechanics lien. The cover letter states: “At this point, you should have everyone’s original signature on the master settlement agreement. I am enclosing all of the signature pages that I have received from Judithe [Siegel] Gantz, [from defendants,] and from Bill Flieder, individually, and on behalf of [plaintiff]. I am also enclosing my approval as to form and content, and request that you do the same.” The letter goes on to state that “[t]he dismissal of the complaint may be filed after the $35,000 check, made payable to “JTS Development, Inc., Estate of Jeffrey Siegler, by its administrator, Judithe Gantz and William Flieder” is sent to my attention. At that point, we will also record the lien release on the [defendants’] property.”[6]

Ten days later on November 18, Cooper e-mailed plaintiff’s attorney, with a copy to defendants’ attorney, saying that he was ready to send “your money” to him, on the condition that the insurance company checks (apparently for the global settlement of defendants’ claims) have cleared. The letter goes on to say: “All I ask is a fully signed copy of the collateral agreement.” The next day plaintiff’s attorney e-mailed back to plaintiff’s attorney saying: “As I recall, we have the Siegels, Bill Fliender, myself on the collateral agreement. Are you only missing [Fliender’s attorney], or is there more?”

Cooper’s response was to e-mail plaintiff’s attorney, Sean Judge, on November 23 stating his (Cooper’s) position that because two weeks had passed since Cooper’s November 5 e-mail was sent stating that all parties and attorneys would have to sign the collateral agreement, and because that condition had not occurred, Cooper was taking the position that “we do not now wish to enter into the collateral agreement. . . . Subsequent satisfaction of the conditions, if it ever were to occur, will not result in formation of a contract. Stated differently but to the same effect, my email to you contained an offer to enter into a contract in the form of the collateral agreement, complete with signatures ready to bind us only if the specified conditions were satisfied.” (Italics added.)

The record shows that a day earlier, November 22, 2004, the form request for dismissal with prejudice, that had been prepared by plaintiff’s attorney and sent to defendants’ attorney on November 8, was filed by defendants’ attorney with the court. Dismissal was entered on that same day.

3. Plaintiff’s Motion to Set Aside the November 22, 2004 Dismissal and Enforce the Amended Collateral Agreement

On April 11, 2005, plaintiff filed a motion to set aside the November 22, 2004 dismissal, for the purpose of enforcing the amended collateral agreement under section 664.6, and having a judgment, in the amount of $35,000 plus interest from November 22, 2004 to date of hearing on the motion, entered against defendants and in favor of plaintiff, Siegel’s estate and William Flieder. Plaintiff asserted that the amended collateral agreement was breached by plaintiffs. The motion also sought imposition of $2,136.30 in attorney’s fees and costs associated with pursuing the motion. The motion asserted that dismissal of plaintiff’s complaint was obtained by fraud perpetrated by defendant Scott Cooper and his attorney, Steven Brower, or was the result of mistake, inadvertence or excusable neglect. Plaintiff cited section 473 as authority for the requested relief. Plaintiff also noted for the court that the amended collateral agreement specifically provided for its enforcement by means of section 664.6, and for attorney’s fees to the prevailing party in a section 664.6 motion.

Plaintiff’s attorney, Sean Judge, stated in a declaration filed in support of the motion that plaintiff had to be reinstated as a corporation, which he said occurred on March 8, 2005, and immediately thereafter, he reserved a hearing date for plaintiff’s motion to vacate the dismissal and enforce the amended settlement agreement. He also stated that if the trial court were to consider that the facts giving rise to that motion were “anything other than a calculated plan to ‘pay [plaintiff] nothing’ as [defendant] Cooper has stated to me repeatedly, then pursuant to CCP section 473, it was my mistake, and mine alone, to have sent the request for dismissal, with prejudice, with specific instructions to Mr. Brower to file it only after the $35,000.00 check had been sent to my office, whereupon, [plaintiff’s] mechanics’ lien would then be released from the property. Had I known that the request for dismissal of the complaint would be filed without the payment of the $35,000.00 that Cooper agreed to pay my client and the other signatories to the Amended [collateral agreement], I would not have sent it to Mr. Brower. The transmission of the request had nothing to do with any party’s actions, and was done by my offices in normal anticipation of completion of the settlement.”

In a declaration from Flieder’s attorney, John V. O’Meara, which was also filed in support of plaintiff’s motion to vacate the dismissal and enforce the amended collateral agreement, O’Meara stated he was present at the mediation of this case and had several conversations with defendant Scott Cooper, both in the presence of the mediator and outside of his presence, and “[i]t was made crystal clear to Mr. Cooper by me and by the mediator that the settlement of his claims vis-Ã -vis [plaintiff] was contingent on Mr. Cooper paying [plaintiff] $50,000. There is absolutely no question at the time the deal was struck that the two deals were intertwined, and Mr. Cooper audibly acknowledged such at the mediation.”

On May 17, 2005, the trial court heard and granted the motion to set aside the dismissal and to enforce the amended collateral agreement, citing section 473, subdivision (b) and section 664.6. The court found the dismissal was fraudulently or improperly filed, and further found plaintiff’s motion “was timely filed both because it was filed within six months and because the suspension of [plaintiff] until mid-March made it impossible to file this motion at an earlier time.” The court also stated the fact that not all of the attorneys signed the amended collateral agreement was immaterial because section 664.6 only requires that all the parties sign the agreement, not the attorneys. The court denied plaintiff’s request for interest and attorney’s fees. The minute order recites that then, off the record, the court dismissed the case and did not enter a judgment, even though section 664.6 provides for enforcement of settlement agreements by entry of a judgment.

4. Plaintiff’s Motion for Reconsideration

Because the trial court re-dismissed the case after it granted plaintiff’s motion rather than enter a judgment as contemplated by the provisions of section 664.6, plaintiff moved for reconsideration of the trial court’s order, asking that the dismissal be vacated and a judgment on the amended collateral agreement be entered in plaintiff’s favor.

In support of their opposition to this motion for reconsideration, defendants submitted two declarations. However, the declarations address matters that should have been raised by defendants in their opposition to plaintiff’s motion to vacate the dismissal entered by the court when defendants’ attorney’s filed the request for dismissal form. In his declaration, Scott Cooper stated he has been married to the other defendant, Debra Colletti, for over 25 years and “[w]e have specifically agreed that, in certain circumstances, I am authorized to affix her signature to documents. Pursuant to that understanding, the signature which appears on the [amended collateral agreement] for Debra Colletti, was actually signed by me. It was not signed by Debra Colletti.” Cooper further stated that when he signed his wife’s name, he was not aware that under section 664.6 his wife had to sign the amended collateral agreement herself. No declaration was submitted by Debra Colletti.

The other declaration was from one Kevin Lutz who stated he works as an office manager for an attorney service in Sacramento, and one of the services offered by the company is filings to the state’s Franchise Tax Board, including requests for certificates of reviver for corporations whose powers are suspended for nonpayment of taxes. Lutz states that “[i]n our experience,” those certificates generally can be obtained from the tax board in three to five days when the tax return is filed, a cashier’s check is included for the unpaid taxes, and the tax board is informed that the reviver is necessary for the corporation to be able to pursue litigation.”

The motion for reconsideration was heard on August 18, 2005, and citing section 473, the court granted the motion, finding that it was clear there was a settlement, and the dismissal of the case on May 17 was improper. The court stated it had “inadvertently dismissed the case prior to the judgment being filed” and judgment should be entered pursuant to the terms of the amended collateral agreement. A judgment in favor of plaintiff, William Flieder, and the estate of Jeffrey Siegel, in the amount of $35,000 was signed and filed that same day.

DISCUSSION

1. Application of Section 473

As noted above, although the terms of the amended collateral agreement were not fulfilled because the $35,000 for plaintiff, Flieder and Siegel’s estate was not turned over to them, Steven Brower, defendants’ attorney, nevertheless filed the dismissal with prejudice that plaintiff’s attorney had prepared for use after the terms of both the global agreement and the amended collateral agreement were accomplished. This prompted plaintiff to file its motion to vacate that dismissal, citing section 473’s broad terms for relief. While the trial court did not specifically state whether it was granting the motion pursuant to the discretionary or the mandatory provisions for relief in section 473, at oral argument the trial court addressed the issue of its discretion vis-Ã -vis the timeliness of that motion, which indicates it was acting under the first portion of section 473, subdivision (b), which requires that motions be brought “within a reasonable time, in no case exceeding six months after the . . . dismissal . . . was taken.” As noted above, the court found the motion was timely “both because it was filed within six months and because the suspension of [the plaintiff corporation] until mid March made it impossible to file this motion at an earlier time.”

A trial court’s ruling under the discretionary provisions of section 473, subdivision (b) is reviewed for abuse of that discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) On appeal, defendants contend the trial court abused its discretion when it granted the motion to vacate the dismissal entered on November 22, 2004. The record shows that plaintiff’s attorney was aware of the dismissal by November 24. From that date to at least December 30, 2004, plaintiff’s and defendants’ attorneys exchanged e-mails and letters regarding their respective positions on whether the request for dismissal should have been filed and what can and should be done about it. Plaintiff’s motion to vacate was filed April 11, 2005, some four and one-half months after the dismissal was entered, and three and one-half months after that exchange between the two attorneys occurred. Plaintiff’s attorney explained in his reply papers that before the motion could be filed, plaintiff had to be reinstated as a corporation. Although he included an exhibit of the documents reinstating plaintiff, defendants did not include those documents in their appellants’ appendix. Therefore, we do not know the grounds on which reinstatement occurred (although presumably the trial court had the exhibit to review). In that respect, the declaration from Kevin Lutz (regarding reviving corporate powers upon payment of taxes) was not only not filed in time for the hearing on the section 473 motion to vacate the dismissal, it is not even clear to this court if that declaration is relevant.

In any event, we are asked by defendants to hold that the three and one-half months between (1) the apparent end of negotiations between the attorneys over the issue whether the request for dismissal was validly filed by defendants’ attorney and (2) the filing of the section 473 motion to vacate the dismissal, a period of time that was punctuated by plaintiff’s legal inability to litigate this case and its efforts to restore its corporate powers so that it could litigate, was an unreasonable amount of time to let pass before the section 473 motion was filed. The trial court did not find it unreasonably lengthy and we cannot say it abused its discretion in making that finding and granting the motion to vacate. Further, because the order granting the motion can be sustained on that ground, there is no need to address the question whether it could be sustained under the mandatory provisions of section 473, subdivision (b).

2. The “Conditional Delivery” Issue

In reviewing an order on a section 664.6 motion, we apply the sufficiency of the evidence test to the trial court’s implied or express factual findings, and we review de novo the trial court’s construction and application of that statute. (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.) Those standards of review are applied in conjunction with the general rule that judgments and orders are presumed to be correct and persons challenging them must affirmatively show reversible error. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.)

Defendants contend the amended collateral agreement never became an enforceable contract because (1) it was delivered by defendant Cooper to plaintiff’s attorney with the condition that all parties and their attorneys must sign it, (2) plaintiff’s attorney agreed to that condition, and (3) the necessary attorney signatures were not obtained. Thus, defendants argue, granting the section 664.6 motion was error. We reject their conclusion.

The agreement regarding attorney signatures could have no effect on the enforceability of the amended collateral agreement since it directly contradicted a provision in that agreement. The amended collateral agreement provided that it would be executed by defendants, plaintiff, Flieder and the estate of Jeffrey Siegel. Period. It did not require execution, or approval as to form and content, by any of the attorneys. The record does not show that any of the parties other than Cooper insisted, or agreed, that the amended collateral agreement had to be signed by the attorneys; that is, none of the other parties agreed to the modification of the amended collateral agreement proposed by Cooper. Indeed, there is no evidence they even knew about it. Cooper’s undisclosed intentions cannot modify the terms of the amended collateral agreement. Defendants cannot force Cooper’s proposed modification on the other parties. The amended collateral agreement became a contract between the parties when the last of them signed it. “ ‘California law is clear that there is [a] contract [when] there has been a meeting of the minds on all material points.’ “ (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1430.) “Compromise settlements are governed by the legal principles applicable to contracts generally. . . . Absent a fundamental defect in the agreement itself the terms are binding on the parties.” (Gorman v. Holte (l985) 164 Cal.App.3d 984, 988.)

As an alternative reason for enforcing the amended collateral agreement, we observe that defendants had already agreed to the material provisions in it by signing the “earlier/original” collateral agreement on October 26. The record shows that by e-mail dated October 20, Cooper wrote to plaintiff’s attorney stating that the earlier collateral agreement “is fine with us.” Six days later, the defendants signed it. (It had already been signed by Flieder on his own behalf and as president of plaintiff on October 18.) The only changes made to that earlier collateral agreement have no bearing on its enforceability as requested in plaintiff’s section 664.6 motion, where the only issue was the payment of the $35,000. Essentially, the collateral agreement was signed by the parties in parts: by defendants on October 26 in its original state, and on November 5 in its amended state; by Flieder in his two capacities (individually and on behalf of plaintiff as its president) on October 18 (original collateral agreement) and November 5 (amended collateral agreement); and by Judithe Siegel (amended collateral agreement) on an unknown date. Thus, by the time Cooper sent his e-mail stating the amended collateral agreement had to be signed by parties and attorneys, he had already agreed to the terms, in writing, that plaintiff sought to enforce by the section 664.6 motion. The Elyaoudayan court observed that a “ ‘mix and match’ approach to the manner of agreement [is permitted] so long as all parties agree to the same material terms.” (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at pp. 1431-1432.) Defendants indicated their assent to the material terms in the earlier collateral agreement, and those same material terms were present in the amended collateral agreement, the one they insist is not binding on them even though they signed it.

3. The Requirement That All Parties Sign the Amended Collateral Agreement

In Williams v. Saunders, supra, 55 Cal.App.4th at pp. 1162-1164, the trial court specifically found that one of the litigants authorized her attorney and her husband to act on her behalf. Nevertheless, the Williams court held that because the litigant had not signed a settlement agreement herself, the agreement was not enforceable against her. In Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, the court held that a plaintiff could not enforce a settlement agreement because she did not sign the agreement. The court held section 664.6 requires that the settlement agreement sought to be enforced must have been signed by the parties seeking to enforce it and by the parties against whom enforcement is sought.

Here, defendants did not assert that requirement in their papers opposing plaintiff’s first motion, which is when it should have been raised. Rather, Cooper, in support of defendants’ opposition to the motion for reconsideration, submitted a declaration saying he signed the amended collateral agreement on behalf of his wife because she authorized him to do so, and defendants argued this was not sufficient for enforcement of the agreement. The declaration and argument were without importance because the trial court had already granted plaintiff’s section 664.6 motion on May 18, and plaintiff’s motion for reconsideration sought only to vacate the dismissal entered on that date and have a judgment entered, as section 664.6 contemplates would be entered. Thus, the motion for reconsideration was simply a “housekeeping” motion and did not require the trial court to re-decide whether enforcement under section 664.6 should be granted on the basis of Cooper’s declaration. If defendants wanted to properly press the point, they could have brought their own motion for reconsideration.

Nevertheless, assuming arguendo that failure to raise the signature issue in their opposition papers to plaintiff’s first motion did not constitute a waiver of the point, we will not presume that the trial court (1) believed Cooper’s representation that he signed his wife’s name to the agreement, but then (2) proceeded to err by entering a judgment on the amended collateral agreement. The trial court could have found a credibility issue based on the tardiness of Cooper’s representation, as well as the fact that Cooper’s wife did not submit her own declaration.[7] [8]

4. Plaintiff Is Entitled to Attorney’s Fees

The clause in the amended collateral agreement regarding enforcement of that agreement by a section 664.6 motion provides that the prevailing party in such a motion “shall” be entitled to attorney’s fees and costs connected with that enforcement proceeding. When the trial court was asked at oral argument on plaintiff’s sections 473/664.6 motion whether it was awarding attorney’s fees, the court’s response was only that fees were denied.[9] It did not deny costs to plaintiff.

There was no extrinsic evidence relating to the meaning of the attorney’s fees provision in that clause, and so we decide de novo the question whether the trial court should have awarded fees to plaintiff as the prevailing party in the section 664.6 motion. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 527.) Under Civil Code section 1717, plaintiff was entitled to “reasonable attorney’s fees in addition to other costs.” Because plaintiff obtained a “ ‘simple, unqualified win’ “ on the single contract claim presented by its motion--recovery of the $35,000--a denial of attorney’s fees could not be premised on equitable considerations unrelated to plaintiff’s litigation success, if that was what prompted the trial court to deny attorney’s fees. (Hsu v. Abbara (1995) 9 Cal.4th 863, 877.)

While it is true that the request for fees was not made pursuant to a Civil Code section 1717 motion, the right to enforce the settlement by means of a section 664.6 motion and the right to attorney’s fees are both part of the same contract clause, and section 664.6 was designed to be a summary procedure. (Elyaoudayan v. Hoffman, supra, 104 Cal.App.4th at p. 1428.) Thus, requiring plaintiff to bring a section 1717 motion in addition to the section 664.6 motion would unnecessarily increase the amount of fees, costs, and court time spent on this case by the parties, and the amount of time the trial court would have to devote to the case.

Further, the declaration filed by plaintiff’s attorney states the attorney’s hourly rate for plaintiff is $175, and he expected to spend a total of 16 hours on preparation of plaintiff’s moving papers, review of defendants’ opposition papers, preparation of plaintiff’s reply, and time spent on the May 17 hearing (court and travel time). That was sufficient information for the trial court. A court applies its own expertise in reviewing the legal services provided by an attorney when it decides a reasonable amount to award as fees. Here, the trial court should decide a proper amount of attorney’s fees to award plaintiff for both the motion heard on May 17 and the motion for reconsideration. Likewise, reasonable attorney’s fees are properly awarded to plaintiff for its attorney’s work on this appeal. (Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263.)

We find no merit in defendants’ contention that under subdivision (b)(2) of section 1717, attorney’s fees are not properly awarded to plaintiff. Subdivision (b)(2) states that “[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” Obviously, the “dismissal pursuant to settlement” means only that attorney’s fees incurred prior to the dismissal are not awardable under section 1717.

Under Civil Code section 3287, subdivision (a), plaintiff would ordinarily be entitled to prejudgment interest on the settlement contract debt, $35,000, from the day defendants repudiated the settlement agreement, November 23, 2004. However, because plaintiff limited its notice of appeal to challenging the trial court’s ruling on the issue of attorney’s fees, we will remand the case for a determination only of fees and costs, and the trial court’s determination of those amounts can then be added to an amended judgment.

DISPOSITION

The judgment from which defendants appeal and plaintiff cross-appeals is amended to provide for an award of fees and costs to plaintiff and, as so amended, is affirmed. The case is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

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Analysis and review provided by El Cajon Property line Lawyers.

[1] Defendant Scott Cooper is an attorney. Defendant Debra Colletti is his wife.

[2] Unless otherwise indicated, all statutory references herein are to the Code of Civil Procedure.

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.” Section 664.6 provides a summary means of enforcing a settlement and thus dispenses with the need for filing a new lawsuit to achieve enforcement. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428.)

In Wackeen v. Malis (2002) 97 Cal.App.4th, 429, 433 (Wackeen), we addressed the provision in section 664.6 for retention of jurisdiction. We held the provision provides a court with continuing jurisdiction to enforce a settlement agreement even when the case was dismissed after the agreement was executed, so long as the request to retain jurisdiction was made before the dismissal, was made orally in the presence of the court, or was made in a writing signed by the parties themselves.

In the instant case, no such request for retention of jurisdiction was made, but the record shows the dismissal of the case was made prematurely because of steps taken unilaterally by the defendants, which prompted the plaintiff to file its section 473 motion to vacate the dismissal, and prompted the trial court to grant the motion. That improperly taken dismissal distinguishes this case from the facts in Wackeen, where the various requests for dismissal filed in that case were voluntarily filed and not challenged. There, we observed that the jurisdiction of a court continues until a final judgment is entered if the court has jurisdiction over a party and the subject matter of the suit, and when there is a voluntary dismissal of the entire suit, jurisdiction over the parties and subject matter ceases, and a dismissal by some but not all of the plaintiffs means the court’s subject matter jurisdiction continues. (Wackeen, supra, 97 Cal.App.4th at p. 437.)

[3] We properly limit our description of the background of this case to the evidence and procedural events set out in the appellate record.

[4] Jeffrey T. Siegel was plaintiff’s president. The cross-complaint alleges he died shortly before it was filed. Judithe G. Siegel was appointed as his personal representative by a probate court. After Siegel died, William Flieder became plaintiff’s president.

[5] In a declaration filed in support of defendants’ opposition to the motion to set aside the dismissal and enforce this second agreement, defendant Scott Cooper stated the case was mediated on April 27, 2004, and one of the terms of the collateral agreement was that to the extent Scott Cooper had paid any of the remaining third party claims or obtained their release, then he (Cooper) would be reimbursed from the $50,000, and he estimated that he had paid approximately $15,000 of those claims and thus he was entitled to that amount of money from the $50,000.

Cooper also stated that for the second agreement to be effective, certain settlement criteria for the global agreement would have to be accomplished, one of which is that the global agreement would have to be executed by July 1, 2004, and that did not occur. Although Cooper included with his declaration a written “agreement” that specifies those things stated in Cooper’s declaration, that agreement bears no signatures of the persons who would be executing it. We also note that despite the fact that the global agreement was not accomplished by July 1, Cooper signed the second agreement after July 1.

[6] It is not clear whether the term “master settlement agreement refers to the global agreement or the amended collateral agreement, but it is not relevant for our purposes here.

[7] We observe that by agreeing in the amended collateral agreement to a time line for when the dismissals would be entered, defendants agreed to an amendment of the global settlement if the time for filing dismissals was different in the global settlement. Thus, attorney Brower’s filing of the request for dismissal was premature since the amended collateral agreement states its signatories agreed that in consideration “for these payments,” they would release each other from all claims arising out of this suit, and dismissals with prejudice would be filed as to all parties, and plaintiff would release its mechanic’s lien against defendants’ residence. As noted above, the payments to which the release refers are the $450,000 and the $35,000.

[8] Papers submitted to the trial court in opposition to plaintiff’s motion for section 664.6 relief (1) describe plaintiff’s construction business as a criminal enterprise that Siegel and Flieder operated by means of threats of violence, extortion and theft, and (2) state these tactics were perpetrated against defendants and others. While this makes for interesting reading, none of the accusations were supported by actual evidence (other than Cooper’s declaration stating he developed these “facts and opinions” from “documents received in litigation,” interviews he conducted, and “public sources”). Moreover, whether all, some, or none of Cooper’s accusations are true is not relevant here. If defendants believed the amended collateral agreement was a form of extortion by plaintiff, their reasonable recourse was to seek relief from the trial court. From the record, it is not unreasonable to infer that instead, they chose the self-help tactic of facially agreeing to the amended collateral agreement while in actuality signing it without the intention of performing. That conclusion is certainly supported by the record. After defendants received the $450,000, they filed the request for dismissal with prejudice prior to the time the amended collateral agreement stated it should be filed, and informed plaintiff’s attorney that they had no intention of living up to the promises they made in that agreement. The trial court did not reward that conduct and neither will we.

[9] Defendants contend that because plaintiff did not specify in its original notice of cross-appeal (filed before the judgment was signed and filed), that it was challenging the denial of an award of attorney’s fees, plaintiff is precluded from raising that issue now. We observe two things about that contention.

First, plaintiff filed a second (amended) notice of cross-appeal after the judgment was signed and filed. Although that amended notice actually specifies that it was a cross-appeal from the May 17 order, we will construe it as being taken from the later-filed judgment. Second, an appeal (or cross-appeal) from a judgment will include a review of orders preceding the judgment unless the notice of appeal specifically states that the appellant is only challenging a specific ruling of the court. Here, plaintiff limited its second notice of cross-appeal to challenging the denial of attorney’s fees. (See generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 459 et seq., p. 506 et seq.)