Filed 5/24/18 Teuma v. Marvin Lumber & Cedar Co. CA1/2
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THERESA TEUMA,
Plaintiff and Appellant,
v.
MARVIN LUMBER & CEDAR CO., et al.,
Defendants and Appellants.

A149733

(Sonoma County Super.
Ct. No. SCV241055)


The trial court summarily enforced the terms of a settlement pursuant to Code of Civil Procedure section 664.6, over one party’s objection (among others) that the expedited enforcement procedure allowed by that statute could not be utilized, because none of the settling parties had agreed to the settlement either orally in court or in a signed writing, as the statute requires. The argument is reprised on appeal, and we agree. We therefore reverse.
 
BACKGROUND
Theresa Teuma sued a number of persons and entities for alleged defects in the construction of a building. During jury selection, counsel for Teuma reached an oral settlement with counsel for two of the opposing parties, Marvin Lumber and Cedar Co., and BMD, Inc (hereafter, collectively Marvin).
When Marvin moved for a judicial “determination of good faith settlement pursuant to CCP § 877,” the terms of the settlement were described in the declaration of its counsel as follows:
“a. Marvin shall provide plaintiff with new Marvin product to replace the existing Marvin product, with certain upgrades (simulated divided light bars installed within the insulated glass units and screens for the operable windows) and Marvin shall pay to plaintiff $25,000. The retail list price of the replacement product is $243,237.00. The replacement product will come with the standard written limited warranty that is included in the retail list price of the product.
“b. In exchange for the consideration identified above, plaintiff will provide a Section 1542 release of any and all past, present and future claims except for claim under the written limited warranty provided with the new products.”
Over the opposition of two other defendants, and after a brief hearing, the trial court ruled: “The settlement is found to be in good faith within the meaning of CCP sections 877 and 877.6 and the requirements of Tech-Bilt, Inc. vs. Woodward-Clyde & Associates. As such the proposed order including the dismissal of the respective cross-complaints is being signed at this time and the original will be filed with the clerk, served on all parties.” The formal order granting Marvin’s motion was entered on July 25, 2012. A three-week trial concluded the following month.
Four years later, after unsuccessful attempts to produce a more detailed written expression of the settlement, Teuma noticed a “Motion to Enforce the Parties Written Settlement Agreement Pursuant to Code of Civil Procedure Section 664.6.” (The “written settlement” was the description by Marvin’s counsel quoted above.) Due to the considerable passage of time, Teuma also sought “damages associated with the failure to perform, interest, and reasonable attorney’s fees and costs.”
Marvin responded that because “this case and all of its appeals were fully dismissed before Plaintiff’s motion to enforce,” there was “no ‘pending litigation’ as required by Code of Civil Procedure § 664.6,” and thus “this court lacks subject matter jurisdiction.” Marvin also argued that the summary procedures established by section 664.6 were not available, because there was neither a writing signed by the parties personally nor an oral stipulation by them before the court.
At the conclusion of a brief hearing, the trial court granted the motion and entered a written order (on August 22, 2016) directing Marvin to “provide plaintiff with new Marvin product,” the retail value of which “shall not exceed $243,237” plus the “$25,000.00 cash.” Both Teuma and Marvin filed timely notices of appeal from the order, which, in the absence of a formal judgment, is appealable. (See Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1250–1252 (Critzer).)
DISCUSSION
I.
The Trial Court’s Jurisdiction
The parties’ arguments break along familiar lines: Teuma that she was not awarded enough, Marvin that she should not have been awarded anything. Because Marvin’s argument touches upon jurisdiction, we address it first.
Quoting page 304 of the register of actions, Marvin states in its opening brief: “The case against Marvin was dismissed on March 27, 2014, when the trial court ordered that, with the exception of certain pending motions unrelated to Marvin, ‘the entire case is DISMISSED, without prejudice (this shall include the original complaint and all other remaining cross-complaints, deemed or otherwise.’ Moreover, the remainder of the Lawsuit was fully resolved, and the last appeal dismissed, in July 2015.”
Teuma argues the trial court still had jurisdiction “because Teuma’s Complaint against Marvin was not dismissed by a ‘written order signed by the court,’ as required by Code of Civil Procedure section 581d.” Marvin is relying on what appears to be a minute entry in the register of actions bearing an electronic signature of the court, stating that (with certain irrelevant exceptions) “the entire case is DISMISSED, without prejudice . . . includ[ing] the original complaint and all other remaining cross-complaints, deemed or otherwise.” Assuming the court’s electronic signature would suffice (see Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225, 1234), the record does not include an actual order, so it cannot be determined whether there is “a written order signed by the court” as required by Code of Civil Procedure section 581d. Thus, without a clear record of a proper judgment of dismissal, Marvin fails to establish that the trial court was divested of jurisdiction.
II.
The Trial Court Erred in Summarily Enforcing the Settlement Under Code of Civil Procedure Section 664.6.
We do not address any of the issues Teuma raises on appeal, because we agree with Marvin who reprises its argument, raised below, that the settlement agreement was unenforceable under section 664.6.
Section 664.6 provides “a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 585 (Levy).) A prerequisite to invoking a court’s power to summarily enforce a settlement agreement under section 664.6 is that the “parties” have agreed to a settlement, either by means of “a writing signed by the parties outside the presence of the court or orally before the court.” (§ 664.6; Critzer, supra, 187 Cal.App.4th at p. 1256.) The term “parties” means the litigants themselves, not their attorneys of record. (Levy, at p. 586.)
As we have previously explained, “ ‘Because of its summary nature, strict compliance with the requirements of [Code of Civil Procedure] section 664.6 is a prerequisite to invoking the power of the court to impose a settlement agreement.’ [Citation.] Settlement of a lawsuit implicates a substantial right of the litigants; therefore, the Supreme Court has concluded that ‘parties’ in Code of Civil Procedure section 664.6 means the litigants personally and does not include their attorneys of record (Levy[, supra, 10 Cal.4th at pp. 584, 586]), even if the parties expressly authorized the agent to enter into a settlement on their behalf [citation]. ‘The litigants’ direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.’ [Citation.] Thus, the statute ‘require[s] the signatures of the parties seeking to enforce the agreement under [Code of Civil Procedure] section 664.6 and against whom the agreement is sought to be enforced.’ ” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984–985; accord, Critzer, supra, 187 Cal.App.4th at p. 1262).)
These strict requirements were not met in this case. Here, at a minimum, there is nothing in the record indicating Teuma signed the written agreement she sought to enforce, nor agreed to it in open court. Nor did Marvin do so. So the motion should have been denied on that basis alone. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 306.)
Teuma does not dispute that these statutory prerequisites were not met, but urges us to disregard them because, in its view, the trial court’s good faith settlement order “satisfies the purposes and requirements” of section 664.5. This we cannot do. The statutory language of section 664.5 is clear and unambiguous. And we do not understand Teuma to contend otherwise. If there is to be an exception to these statutory prerequisites for good faith settlements approved under section 877.6, that is a policy choice for the Legislature to make. Not this court. (See § 1858 [in construing statutes, court may not “insert what has been omitted”]; Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 571.)
Teuma also contends Marvin is judicially estopped from now asserting it didn’t agree to a settlement. However, Marvin is not contending it didn’t agree to any settlement. The parties simply disagree about its precise terms. Judicial estoppel has no application here.
III.
The Scope of Marvin’s Cross-Appeal
Finally, a brief word about the appropriate disposition. Marvin asks us to reverse not only the trial court’s August 22, 2016 order but also a subsequent order entered on December 9, 2016, denying a motion filed by Teuma styled as one to “correct clerical mistakes” in the court’s August 22, 2016 ruling. Teuma objects that the later motion and ruling are not even properly part of the record on appeal. However, Marvin included those materials in an appendix that it designated in its own cross-appeal. Teuma cites no authority that this was improper, nor did Teuma move to have the appendix stricken.
We have jurisdiction over the later order too, despite the fact that Marvin’s notice of cross-appeal specifies only the August 22, 2016 ruling. Although Teuma styled her motion as one made under section 473, subdivision (d) to correct a clerical error, in substance the motion sought reconsideration of the court’s initial ruling on the section 664.6 motion. Teuma conceded as much when, in opposition to a motion filed by Marvin in this court (i.e., to augment the record in Teuma’s appeal), she argued that her own appeal of the August 22, 2016 ruling would have been mooted had the trial court granted her so-called “clerical mistake” motion. Accordingly, we agree with Marvin that the court’s denial of that motion was not separately appealable, and is properly reviewed on appeal from the initial ruling. (See § 1008, subds. (e), (g).) And, we also agree that it is erroneous for the same reasons.
DISPOSITION
The August 22, 2016 and December 9, 2016 orders are reversed. Marvin shall recover its costs of appeal.
 




STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.






















Teuma v. Marvin Lumber & Cedar Co., et al. (A149733)