Opinion
H029982
4-25-2007
LAURA R. BEAUCHESNE et al., Plaintiffs, Cross-Defendants, and Appellants, v. TIMOTHY R. CHODERA et al., Defendants, Cross-Complainants and Respondents.
NOT TO BE PUBLISHED
I. INTRODUCTION
Plaintiffs and cross-defendants Richard B. Beauchesne and Laura R. Beauchesne (the Beauchesnes) appeal from a judgment enforcing a settlement agreement pursuant to Code of Civil Procedure section 664.6. The Beauchesnes have no quarrel with the material terms of the settlement agreement; they seek to void the agreement on a variety of procedural grounds. We find no reversible error and affirm the judgment.
Hereafter, all unspecified code references are to the Code of Civil Procedure.
II. FACTS
On or about August 28, 2000, Timothy R. Chodera and Sandra M. Chodera (the Choderas) sold their condominium to the Beauchesnes. Some minor disputes arose out of the sale and, on January 7, 2002, the Choderas filed a petition to compel arbitration of those disputes. That petition became Santa Clara County Superior Court case No. DC-02-416639 (the limited jurisdiction case).
On February 28, 2002, the Beauchesnes filed this case against the Choderas and others. This case concerns some of the same issues encompassed by the limited jurisdiction matter. The Choderas filed an answer and cross-complaint against the Beauchesnes. The Beauchesnes responded with a first amended complaint, adding the Choderass attorney, David Lively, as a defendant. The two causes of action asserted against Lively were the 18th and 19th causes of action, alleging abuse of process and breach of warranty of authority, respectively. Initially, both matters were before the Honorable William J. Elfving.
The Beauchesnes also sued Realty World Team Advantage, Shea Homes Limited Partnership, J.F. Shea Co., Inc., and State Industries, Inc. These parties were not parties to the settlement agreement and are not parties to this appeal.
Lively filed a demurrer and Judge Elfving sustained the demurrer to the 18th and 19th causes of action without leave to amend. Thereafter, the Beauchesnes sought to disqualify Judge Elfving for cause pursuant to section 170.3, subdivision (c)(1). Their request was denied. The Beauchesnes then filed a peremptory challenge to Judge Elfving, which the court found to be timely, and the case was assigned to the Honorable Jamie Jacobs-May. The limited jurisdiction case remained before Judge Elfving.
A. The Settlement Before the Court
On March 2, 2005, the parties entered into an oral settlement before Judge Jacobs-May. Judge Jacobs-May recited the terms of the agreement as follows:
"In full settlement of all claims known or unknown arising out of this action, the plaintiff will pay to the defendants — actually, both plaintiffs will pay to the defendants the sum of $100,000.
"In addition to that sum, theres a certain amount interpleaded that was originally approximately $8,404. Whatever that sum is, whether its a little more or a little less, whatever that sum is, that sum will be released to the defendants as well.
"In addition, there is a judgment in the amount of $17,500 entered in favor of defendants against plaintiff. That is in a different case [the limited jurisdiction case]. It was pending before Judge Elfving.
"I have phoned Judge Elfving. The parties in this case stipulate that that judgment can be vacated. I have phoned Judge Elfving, and Judge Elfving has given his permission for me to vacate that judgment consistent with the terms of this settlement, as part of this settlement.
"Each side will dismiss any complaints and cross-complaints that they have in this matter. Each side will bear their own attorneys fees and costs. What this means is nobody can sue anybody ever again, not attorneys, not parties over any claims arising out of this action, whether its a complaint or cross-complaint.
"So, next month, next week, next year if somebody discovers some new defect, some new anything, you cant sue each other for this. If the Choderas discover some new credit, they cant sue for it. It resolves all claims known or unknown. This is the agreement as I understand it."
Mr. Beauchesne and Ms. Chodera were both physically present when the court explained the settlement and both expressed their agreement to the terms as stated. Mr. Chodera was present on the telephone and he also agreed. Immediately after Mr. Chodera hung up, the court telephoned Ms. Beauchesne and reiterated the terms of the agreement. She, too, stated her agreement.
The court ordered the Beauchesnes to pay the $100,000 by April 4, 2005. The money was to be deposited in Livelys trust account and was not to be distributed to the Choderas until "all the other pieces are resolved." The court set a dismissal date of April 14, 2005. Lively, as the Choderass attorney, was to prepare the settlement agreement.
B. Subsequent Proceedings
Lively prepared several proposed written agreements, making numerous changes at the request of the Beauchesnes. The Beauchesnes refused to sign any of them and did not send the money as ordered. Accordingly, on May 10, 2005 the Choderas filed a motion pursuant to section 664.6 to enforce the agreement made before Judge Jacobs-May.
During the time the parties had been trying to finalize a written agreement, the Beauchesnes raised several issues they believed were impediments to completing the settlement agreement. One issue involved the judgment in the limited jurisdiction case. The Beauchesnes had appealed the $17,500 judgment entered in favor of the Choderas in that case and the Beauchesnes were unwilling to dismiss their appeal. They had not mentioned this problem when the trial court had recited the settlement on the record on March 2, which included the agreement that the Choderas would dismiss that case. On June 16, 2005, Judge Jacobs-May ordered the Beauchesnes to draft a stipulation requesting the appellate division to dismiss their appeal of the judgment in the limited jurisdiction case. At the same time, the judge ordered Mr. Beauchesne to deliver the $100,000 to Lively by 5:00 p.m. that evening. Mr. Beauchesne asked for permission to make the payment the following day (June 17, 2005) by 5:00 p.m., and the court granted his request. Four days later, having not yet delivered the check to Lively, Mr. Beauchesne wrote to the court explaining that he was unwilling to give the money to Lively because he did not trust him.
At a hearing on June 23, 2005, the court came up with the idea of having the Beauchesnes deposit the money with the court. Both sides agreed to the plan and the court ordered the Beauchesnes to deposit the money by the following Monday (June 27, 2005). When he attempted to deposit the money on June 27, Mr. Beauchesne was told that he needed an order of the court to do so. The judge issued the order and Mr. Beauchesne deposited the money.
In October 2005, the appellate division of the superior court dismissed the Beauchesnes appeal in the limited jurisdiction case and directed the trial court to vacate the $17,500 judgment, which it did on November 2, 2005.
A hearing on the Choderas motion to enforce the settlement was finally held on December 7, 2005. At the hearing, the court rejected the Beauchesnes objections that the court had had no authority to order them to deposit the money with the court, that Lively should have been made a party to the settlement, that the court should enter a separate judgment of dismissal against Lively, and that the Choderas had repudiated the settlement agreement.
C. The Judgment and Amended Judgment
The trial court entered judgment on December 29, 2005, as follows:
"1. Richard B. and Laura R. Beauchesne (`Beauchesnes) will pay to Timothy R. Chodera and Sandra M. Chodera (`Choderas) the sum of $100,000.00 upon submission to the Court of proof that the Abstracts of Judgment have been released pursuant to C.C.P. § 697.370. Said payment shall be made to the Choderas in care of their counsel, OLIMPIA, WHELAN, LIVELY & RYAN. Said funds have been previously deposited with the Controller of Santa Clara County. Said funds shall be paid to the Choderas by the Controller, along with any interest accrued thereon from June 27, 2005 upon submission of a certified copy of this Judgement [sic] to the Controller.
"2. The amount of $6,950.72, which is interpleaded with this Court and was deposited by Fidelity National Title Company in action no. C0305127 RS, shall be paid by the Controller of the County of Santa Clara to Timothy R. Chodera and Sandra M. Chodera, along with any interest that has accrued thereon from November 21, 2002 (the original date of deposit with the Court) upon submission of a certified copy of this Judgment to the Controller.
"3. The Judgment in the amount of $17,500.00 entered in favor of the Choderas and against the Beauchesnes in Case No. 7-02-CVG-416639 is vacated by this Court. This condition of the settlement was satisfied when the Superior Court, Appellate Department, issued its Order on October 14, 2005, and the Judgment was subsequently vacated pursuant thereto.
"4. The Beauchesnes Complaints and any Claims or Causes of Action that they have against the Choderas or any of their attorneys relating to claims arising from this action, known or unknown, are hereby ordered released and dismissed with prejudice.
"5. The Choderas Causes of Action and any claims that they have, known or unknown, against the Beauchesnes or their counsel relating to or arising from this action are ordered released and dismissed with prejudice.
"6. Any and all Cross-complaints and Causes of Action filed by the Choderas in this action against the Beauchesnes are dismissed with prejudice upon release of the funds specified in Paragraphs 1 and 2 of this Order.
"7. No party shall pursue any litigation against any other party or attorney over any claims arising from this action, known or unknown, including any Complaint or Cross-Complaint.
"8. David W. Lively and Olimpia, Whelan, Lively & Ryan, release any Claims or Causes of Action they may have, known or unknown, against the Beauchesnes arising out of this action.
"9. Enforcement of this Judgment is ordered stayed through and including January 4, 2006, to allow the Beauchesnes to post an additional $30,000.00 undertaking and the timely filing of a Notice of Appeal."
On February 27, 2006, the Choderas filed a notice of motion for attorneys fees they incurred in trying to enforce the settlement. The Beauchesnes opposed the motion, arguing that the agreement was that each side would bear its own costs and fees. The trial court agreed with the Beauchesnes and amended the judgment on March 10, 2006, adding a tenth paragraph:
"10. Each side will bear their own attorneys fees and costs."
III. CONTENTIONS AND STANDARD OF REVIEW
The Beauchesnes argue that the settlement agreement entered into on the record before the court in March 2005 is unenforceable because two of the parties were not personally present in the courtroom and because attorney Lively, who the Beauchesnes had named as a party defendant, did not personally agree to the terms on his own behalf. They further contend that the judgment itself is unenforceable due to uncertainty or ambiguity of the language. The Beauchesnes other arguments are that the Choderas and Lively breached the agreement by seeking their attorneys fees incurred in enforcing the agreement, that Judge Jacobs-May should be disqualified for having spoken to Judge Elfving about vacating the judgment in the limited jurisdiction case, that the court had no authority to order them to deposit the settlement funds with the court, and that the court should have entered a judgment of dismissal in favor of Lively based upon the demurrer that was sustained.
The factual bases for the Beauchesnes arguments are undisputed. The issues presented are purely legal. Accordingly, we apply the de novo standard of review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)
IV. DISCUSSION
A. Enforceability of the Settlement Agreement
The Beauchesnes first argue that the settlement agreement placed on the record in March 2005 is unenforceable because Mr. Chodera and Ms. Beauchesne voiced their agreement by way of a telephonic appearance and were not present in court. The Beauchesnes do not argue that the telephonic appearance caused Ms. Beauchesne to be misled. Indeed, the Beauchesnes appear to concede that they both personally agreed to the terms as recited by the trial court. They merely seek to void the agreement on procedural grounds.
Section 664.6 provides in pertinent part: "If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement." As our Supreme Court has held, the section contemplates that the parties, and not their attorneys, will demonstrate their acceptance of the agreement. "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 v. Superior Court (1995) 10 Cal.4th 578, 585, fn. omitted.)
There is nothing in section 664.6, however, that requires the parties to be personally present in the court room. In this case, both Ms. Beauchesne and Mr. Chodera were telephonically "before the court." The court recited the terms of the agreement and asked them if they agreed to the terms as recited. Both responded affirmatively. The court then asked if they wanted the agreement to be made an order of the court. Again, both responded affirmatively. The courts colloquy with both parties appears in the transcript of the proceedings, leaving no doubt that both orally expressed their agreement to the terms of the settlement "before the court." (Levy v. Superior Court, supra, 10 Cal.4th at p. 585.) Their having expressed their agreement by telephone does not alter the crucial concern, i.e., that their agreement be the product of their "mature reflection and deliberate assent." (See Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1708, fn. 5, suggesting, in dictum, that the parties could presumably meet the requirements of section 664.6 "by informing the supervising judge of their agreement via a conference call or other telephonic communication.") We conclude that the oral agreement is not unenforceable because two of the parties expressed their agreement by telephone.
The Beauchesnes also contend that the agreement is not enforceable because Lively was not asked for his consent as a party during the in-court settlement discussions. Although the trial court had sustained Livelys demurrer to the only two causes of action applicable to him, no judgment of dismissal had been entered. Given his successful demurrer, Lively presumed that he was not a party to the lawsuit at the time of settlement and, therefore, functioned only as the Choderas attorney. But whether or not Lively should have been deemed a party is not necessary to decide.
During the negotiations pertaining to the language of the written agreement, the Beauchesnes raised the concern that Lively had not been made a party to the agreement. Lively accommodated that concern by agreeing, in writing, to be bound as a party. "Nothing in the statutory language suggests that, in a multiparty action, all parties must agree to the settlement 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." (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428.) It follows that, since Lively agreed to the settlement in writing, the settlement agreement is not unenforceable because Lively did not also orally agree before the court.
B. Certainty of the Judgment Language
The Beauchesnes next complain that the judgment is uncertain or ambiguous in several respects.
The Beauchesnes complain that paragraph 7, which provides that "No party shall pursue any litigation against any other party or attorney over any claims arising from this action, known or unknown, including any Complaint or Cross-Complaint," is uncertain because it does not identify the parties or the attorneys. That is not necessary. The judgment pertains to the lawsuit that was ended by the judgment. The parties are the parties to that lawsuit — the Beauchesnes and the Choderas and, arguably, Lively. They may not pursue any claims against each other or against any attorney on claims arising from that action. Even if the paragraph is uncertain as to whether Lively should be considered a party, he was certainly an "attorney" and would be included among the people the parties cannot sue over claims arising from this action, and Lively is constrained by paragraph 8 from suing the Beauchesnes on any claim arising out of this action. There is nothing ambiguous or unclear about paragraphs 7 and 8.
The Beauchesnes argue that paragraph 8 cannot clarify paragraph 7 since paragraph 8 was not part of the settlement put on the record before the court. The argument is disingenuous since it was the Beauchesnes who insisted that Lively be made a party to the settlement agreement. In any event, paragraph 8 is enforceable only against Lively and his law firm and is entirely favorable to the Beauchesnes. The Beauchesnes, therefore, have no basis to attack it on appeal. (§ 902; Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754.)
The Beauchesnes argue that paragraph 1 is ambiguous because it states that the Beauchesnes shall pay the Choderas but also that the funds have previously been deposited with the controller. Again, our independent review detects no ambiguity. The paragraph states that the Beauchesnes are to pay the money to the Choderas and then goes on to specify how that payment is to be made, i.e., by way of the funds that have already been deposited with the controller.
Finally, the Beauchesnes argue that the judgment is uncertain because the provisions in paragraphs 1 and 2 referring to accrued interest do not specify whether interest at the "judgment rate" should accumulate upon the accrued interest. This is not an issue that the judgment needed to address. Interest accumulates on an unpaid judgment as a matter of law. (§ 685.010.)
C. Repudiation by the Choderas and Lively
The Beauchesnes next argue that the Choderas and Lively repudiated the settlement agreement by submitting a proposed judgment that did not contain the provision that "Each side will bear their own costs and attorneys fees" and by seeking fees for their efforts in attempting to enforce the settlement agreement.
The Choderas did not seek fees incurred prior to settlement, acknowledging that the settlement itself contemplated that each side would bear its own fees and costs. However, relying upon the underlying purchase agreement that contained an attorney fees clause, the Choderas filed a motion for fees they incurred after the date of the agreement. The trial court denied the motion, finding that the settlement contemplated that the parties would bear all their own fees. The court also amended the judgment to add the attorneys fees provision of paragraph 10.
Neither the Choderas proposed judgment nor their fee motion was a repudiation or anticipatory breach of the settlement agreement. "Anticipatory breach occurs when one of the parties to a bilateral contract repudiates the contract. The repudiation may be express or implied. An express repudiation is a clear, positive, unequivocal refusal to perform." (Taylor v. Johnston (1975) 15 Cal.3d 130, 137.) The proposed judgment was not a refusal to perform. It was an attempt to enforce the settlement. The fee motion was an effort to recoup the expenses the Choderas had incurred post-settlement based upon a not unreasonable interpretation of the settlement provisions. The court denied the motion. Consequently, the Choderas are liable for their own attorneys fees. There was no refusal to perform.
D. Judge Jacobs-Mays Contact with Judge Elfving
The Beauchesnes next argue that they were denied a fair and impartial hearing because Judge Jacobs-May spoke with Judge Elfving about this case after Judge Elfving had been disqualified. The conversation to which the Beauchesnes refer is Judge Jacobs-Mays telephone call to Judge Elfving to obtain his permission to vacate the judgment in the limited jurisdiction case.
When a party seeks to disqualify a judge for cause under section 170.3, the application "shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (§ 170.3, subd. (c)(1).) Here, Mr. Beauchesne learned about the contact between Judge Jacobs-May and Judge Elfving when Judge Jacobs-May mentioned it on March 2, 2005. Yet, the Beauchesnes never expressed any concern that the judge may have been acting inappropriately and did not ask the judge to recuse herself. Indeed, the Beauchesnes willingness to allow the entire matter to proceed to judgment without mentioning Judge Jacobs-Mays contact with Judge Elfving "not only forfeits [their claim] on appeal but also strongly suggests [it is] without merit." (People v. Guerra (2006) 37 Cal.4th 1067, 1112.)
E. The Courts Order to Deposit the $100,000 with the Controller
Section 572 provides: "When it is admitted by the pleadings, or shown upon the examination of a party to the action, that he or she has in his or her possession, or under his or her control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him or her as trustee for another party, or which belongs or which is due to another party, . . . the court may order the same, upon motion, to be deposited in court or delivered to such party, upon those conditions that may be just, subject to the further direction of the court." The Beauchesnes contend that the court had no jurisdiction under this section to order them to deposit the $100,000 with the court and, therefore, that the order is void.
Citing In re Marriage of Fithian (1977) 74 Cal.App.3d 397, the Beauchesnes contend that section 572 is not designed to enforce judgments but is intended as a provisional remedy only. What the Beauchesnes neglect to mention is that, although Fithian found that the court had no power under section 572 to order the deposit of funds in that case, the court had the inherent power to do so. " `Every court has power to compel obedience to its judgments and orders [citations], and a court of equity retains inherent jurisdiction to oversee and enforce execution of its decrees. " (In re Marriage of Fithian, supra, 74 Cal.App.3d at p. 402, quoting Brown v. Brown (1971) 22 Cal.App.3d 82, 84; see also § 128.) That the court had the power to order the Beauchesnes to tender the funds as required by the settlement agreement is not in dispute. Since the Beauchesnes refused to give the funds to Lively, the court accommodated that resistance by ordering the money be deposited with the court instead. The court had the inherent power to make that order.
F. Judgment of Dismissal as to Lively
The Beauchesnes finally contend that the trial court erred in refusing to enter a separate judgment of dismissal following Livelys successful demurrer to the eighteenth and nineteenth causes of action in the complaint. A separate judgment would be necessary in order for the Beauchesnes to be able to challenge the sustaining of the demurrer. But as the Beauchesnes concede, their agreement to dismiss their lawsuit, with prejudice, makes this issue moot.
V. DISPOSITION
The judgment is affirmed.
We concur:
Rushing, P.J.
Elia, J.