Opinion
F080055
06-16-2020
REZA MOHAMMADI, Plaintiff and Appellant, v. CITY OF FRESNO, et al. Defendants and Respondents.
Jeremy M. Dobbins for Plaintiff and Appellant. Whitney Thompson & Jeffcoach and Mandy L. Jeffcoach for Defendants and Respondents City of Fresno and Steve Wallace. Sean T. O'Rourke for Defendant and Respondent Larry Matson.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the nonpublished opinion filed on June 16, 2020, be modified as follows:
On page 13, after the first full paragraph and before the Disposition, the following section is added:
D. Petitions for Rehearing
City and Matson filed petitions for rehearing contending a rehearing is mandatory under Government Code section 68081. City contends our reversal of the judgment is based "on a ground not raised in the trial court, and raised for the first time in Appellant's reply brief." Similarly, Matson contends "the decision is based upon an issue that was neither raised nor briefed by the parties." As explained below, we interpret Government Code section 68081 and the appellate record differently and conclude a rehearing is not required.
The petitions raise a question of statutory interpretation and, therefore, we set forth the entire text of Government Code section 68081:
"Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party." (Italics added.)
Our interpretation of this provision follows our Supreme Court's discussion of the italicized language: "Section 68081 does not require that a party actually have briefed an issue; it requires only that the party had the opportunity to do so. By requiring the parties to file opening and responding briefs, the California Rules of Court automatically give the parties the opportunity to brief every issue that is raised in the appeal." (People v. Alice (2007) 41 Cal.4th 668, 677.) Later, the high court expanded its explanation of the statute's meaning, stating: "The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081." (People v. Alice, supra, at p. 679.)
The foregoing interpretation guides our examination of the issues "proposed or briefed by any party" to this litigation. (Gov. Code, § 68081.) Based on our review of the record, we disagree with defendants' view of what was "proposed ... by any party." (Ibid.) Defendants claim the issue of the physical absence of Matson and his insurer from the settlement conference was not raised in the trial court. However, O'Rourke's declaration was part of Matson's moving papers and it raised the issue by asserting: "As expressed to the Court, I ... had authority to enter into the settlement pursuant to Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1354-1355." This statement asserts, in effect, that O'Rourke could appear in
place of Matson and the insurer's representative and his presence was enough to assure the enforceability under section 664.6 of any settlement entered. Because the pages of Fiege cited by O'Rourke discussed the dicta in Robertson about an attorney authorized to act on behalf of an insurer, O'Rourke's assertion raised (i.e., proposed or fairly included) the issue decided in this decision—namely, the enforceability of a settlement agreement where an attorney with authority to settle is physically present at the conference and his client and a representative of the client's insurer are not. (Cf. Save Laurel Way v. City of Redwood City (2017) 14 Cal.App.5th 1005, 1015, fn. 9 [issue of ripeness was fairly included within appellant's argument that planned development permit did not violate Subdivision Map Act].)
To summarize, we conclude the requirements of Government Code section 68081 were satisfied and defendants are not entitled to a rehearing. More bluntly, defendants' tactical choices in presenting their motion in the trial court and in drafting their respondents' brief do not entitle them to a greater expenditure of this court's resources. The order we issued prior to oral argument, which is described earlier in this opinion, implied the statutory interpretation expressed in this subpart and, in addition, provided counsel for the defendants an opportunity to present explicit arguments on the particular issue proposed but not addressed earlier.
Defendants' petitions do not discuss this Supreme Court decision or its progeny. (E.g., Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 487, fn. 6 [Gov. Code § 68081 did not require a rehearing]; Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1517 [Gov. Code § 68081 was satisfied because respondent knew of issue and had full opportunity to brief it].)
There is no change in the judgment.
Respondents' petitions for rehearing filed on June 30, 2020, are hereby denied.
FRANSON, Acting P.J. WE CONCUR: PEÑA, J. SMITH, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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. (Super. Ct. No. 16CECG01808)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Jeremy M. Dobbins for Plaintiff and Appellant. Whitney Thompson & Jeffcoach and Mandy L. Jeffcoach for Defendants and Respondents City of Fresno and Steve Wallace. Sean T. O'Rourke for Defendant and Respondent Larry Matson.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Plaintiff Reza Mohammadi appeals from an order granting defendants' motion to enforce settlement under Code of Civil Procedure section 664.6. Under the statute, a court may enter judgment pursuant to the terms of the settlement if the "parties to pending litigation stipulate ... orally before the court, for settlement of the case." (§ 664.6, italics added.) Here, the agreement reached at the settlement conference was not confirmed orally by all the parties because (1) defendant did not personally attend the settlement conference, (2) a representative from the missing defendant's insurance carrier did not personally attend the settlement conference, and (3) the insurance representative did not appear telephonically at the conference and orally approve the settlement terms. An attorney with full settlement authority and an insurance representative "immediately available by telephone" in accordance with Superior Court of Fresno County, Local Rules, rule 2.5.5(C) does not satisfy section 664.6's requirement that the "parties to the pending litigation" stipulate "orally before the court" to the settlement. Thus, the oral agreement was not enforceable under section 664.6.
All unlabeled statutory references are to the Code of Civil Procedure.
We therefore reverse the order enforcing settlement.
FACTS AND PROCEEDINGS
On August 8, 2015, plaintiff was driving his vehicle on Villa Avenue in Clovis and was hit by a vehicle driven by defendant Larry Matson. On November 9, 2015, plaintiff was rear-ended by a City of Fresno (City) bus driven by defendant Steve Wallace.
In June 2016, plaintiff filed a civil complaint in Fresno County Superior Court. In November 2017, plaintiff filed a third amended complaint naming Matson, Wallace and City as defendants.
On July 10, 2019, a mandatory settlement conference was held. The minute order does not list plaintiff or any defendant as an appearing party and does not refer to anyone appearing telephonically. It states plaintiff's counsel, Rod Haron, and defense counsel, Mandy Jeffcoach and Sean O'Rourke appeared. There was no court reporter and no tape recording was made of the proceedings. The minute order states: "Parties have reached a settlement as discussed. Parties agree to a [Civil Code section] 1542 waiver. Court retains jurisdiction pursuant to [Code of Civil Procedure section] 664. Case is considered settled. Attorney Haron will confirm with court by 07/12/2019, after reviewing note. If not satisfied, TRR shall be set for 08/09/2019."
Section 664.6 used to require unwritten settlement agreements to be made " 'orally on the record before the court.' " (Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1356, original italics (Fiege).) In 1994, the Legislature amended section 664.6 to remove "on the record" from the phrase "orally on the record before the court." (Stats. 1994, ch. 587, § 7.) As a result, the absence of a reporter's transcript does not automatically render an oral settlement agreement unenforceable.
The declaration of Jeffcoach identified the attendees of the settlement conference as plaintiff, plaintiff's wife, plaintiff's attorney, "the City, along with its client representative Cheri Kennedy and [Jeffcoach], and Matson by and through his attorney Sean O'Rourke, who had full settlement authority."
The declaration of O'Rourke stated he attended the settlement conference and does not assert Matson attended or gave his oral consent to the settlement. Instead, O'Rourke stated:
"My client, Larry Matson, was insured through a policy underwritten by Fireman's Fund Insurance Company. The insurance claim presented by [plaintiff] was handled by the Chubb Insurance Group (which is a separate entity from Federal [sic] Insurance Company, which is commonly referred to as 'Chubb'.) My claims representative is located in the State of Missouri, and her company's western claims office is in Arizona. Under the insurance policy, the insurance carrier controls the defense and there is no need for policy holder consent to a settlement. The settlement reached on July 10, 2019, would be entirely funded by the insurance carrier. As expressed to the Court, I have written authority for the $25,000.00 settlement payment, and had authority to enter into the settlement pursuant to Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1354-1355."
Except as stated above, the extent to which the claims representative for the insurance carrier "participated" in the settlement conference is not described in the attorney declarations. No declaration from the claims representative was filed.
We note O'Rourke's declaration did not include certain information. It did not attach a copy of the insurance policy to confirm the scope of the insurance carrier's right to settle the claim without Matson's consent. It did not address whether the defense provided to Matson by the insurance carrier was without reservation. It did not attach a copy of any written authorization to settle the claim and did not state whether the claims representative, located in Missouri, appeared by phone at any time during the mandatory settlement conference. It did not address whether the settlement terms—particularly, the release—impaired any substantial rights of Matson.
Jeffcoach's declaration stated that after six hours of negotiations the parties agreed to settlement terms providing (1) a payment of $50,000 to plaintiff, split equally among the defendants (i.e., $25,000 for each accident); (2) a Civil Code section 1542 waiver by all parties; and (3) the trial court retaining jurisdiction pursuant to section 664.6. Jeffcoach's declaration also stated the settlement was conditioned upon Haron receiving and reviewing a medical note that had been provided to the City.
Haron's declaration stated the settlement agreement was subject to a condition precedent, which required City to produce a copy of a July 9, 2015, medical note from plaintiff's primary care provider. In addition, Haron's declaration stated:
"Defendants alleged the medical note stated [plaintiff] came into his primary care providers office on July 9, 2015 claiming he had 8/10 pain and asking for back surgery. [Plaintiff] could not recall ever making such a request. But since the defense was adamant that the note did in fact represent that he did make such representations, [plaintiff] was willing to orally accept the settlement terms conditioned on the fact that he could see this note."
Haron's declaration stated that if the note reflected what defendants had alleged, only then would plaintiff finalize the settlement. On July 11, 2019, Jeffcoach e-mailed a medical note to Haron's office. That note did not refer to a pain level of 8/10. On July 12, 2019, an e-mail sent by Haron's office to Jeffcoach and O'Rourke stated Haron had met with plaintiff and, while plaintiff was not happy with the representation made regarding a report indicating a 8/10 pain level and a request for back surgery, plaintiff "accepts the settlement offer of $50,000.00, as discussed at the Mandatory Settlement Conference on July 10, 2019." Haron's declaration (1) described a July 12, 2019, conference call with plaintiff and his wife in which plaintiff was still confused about what the defense was saying the medical note contained and (2) stated plaintiff reluctantly agreed to the settlement terms but still wanted confirmation of what the note said.
On July 16, 2019, Jeffcoach sent a proposed settlement agreement to Haron and O'Rourke. When plaintiff came to Haron's office that day and saw the medical note, he became upset because it did not say anything about 8/10 pain or a request for back surgery. Plaintiff told Haron that he was not signing the settlement agreement and that Haron no longer had authority to act on his behalf. Haron then prepared a letter to the trial court, with a copy to defense counsel, stating he no longer represented plaintiff and no longer had authority to act in any way on plaintiff's behalf.
On July 19, 2019, the defendants filed a joint ex parte application for an order enforcing the settlement agreement. At the July 23, 2019 hearing, the trial court scheduled the matter for a hearing on September 17, 2019, before the judge who conducted the settlement conference. In August, plaintiff filed a substitution of attorney. After plaintiff filed an opposition and defendants filed replies, the motion was heard as scheduled. The court issued a minute order later that day adopting its tentative ruling to enforce the settlement agreement. Plaintiff filed a timely notice of appeal.
DISCUSSION
I. STANDARD OF REVIEW
When a trial court rules on a motion to enforce a settlement under section 664.6, it "acts as a trier of fact. It must determine whether the parties entered into a valid and binding settlement." (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533 (Kohn).) In making that determination, the court "should consider whether (1) the material terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties regarding their understanding of those terms, and (3) the parties expressly acknowledged their understanding of and agreement to be bound by those terms." (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911 (Assemi).) The court "may consider declarations of the parties and their counsel, any transcript of the stipulation orally presented and recorded by a certified reporter, and any additional oral testimony." (Ibid.) "If the same judge presides over both the settlement and the section 664.6 hearing, he may avail himself of the benefit of his own recollection." (Kohn, at p. 1533.) "The standard governing review of such determinations by a trial court is whether the court's ruling is supported by substantial evidence." (Assemi, at p. 911; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1253 [findings of fact on a motion to enforce a settlement are reviewed under the substantial evidence standard] (Critzer).) The trial court's resolution of questions of law, including the construction and application of the statute, is subject to independent review. (Ibid.) II. ENFORCEMENT OF THE SETTLEMENT AGREEMENT
A. Statutory Text and Purpose
Section 664.6 provides in full:
"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." (Italics added.)
The purpose of section 664.6 is to provide a summary procedure for specifically enforcing a settlement contract. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) This summary procedure takes less time and resources than the alternate procedure of filing a new lawsuit to obtain specific enforcement of the settlement contract. (Ibid.)
B. Consent of the Parties
The meaning of the term "parties" as used in section 664.6 resulted in a split of authority among the Courts of Appeal. In Levy v. Superior Court (1995) 10 Cal.4th 578 (Levy), our Supreme Court addressed this conflict and determined "whether the Legislature intended the term 'parties' as it appears in section 664.6 ... to mean only the litigants personally or to include the attorneys representing the litigants." (Id. at p. 582.) In analyzing the statute, the court initially determined the word " 'parties' " was ambiguous—that is, it was reasonably susceptible to more than one interpretation. (Ibid.) To aid its resolution of the ambiguity, the court examined the statutory context. (Id. at pp. 583-584.) In the court's view, substantial rights of the litigants themselves were implicated because the settlement of a lawsuit ends the litigation. (Id. at p. 584.) The court concluded: "Given this circumstance and section 664.6's focus on settlements, we conclude that in providing for an enforcement mechanism for settlements by 'parties,' the Legislature intended the term to literally mean the litigants personally." (Ibid.) Thus, the court concluded "parties" means "the litigants themselves, and does not include their attorneys of record." (Id. at p. 586.) Our Supreme Court's interpretation is consistent with the general principle 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.' " (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917; Critzer, supra, 187 Cal.App.4th at p. 1262.)
C. Need for Defendants' Consent
The first issue we address is whether defendants must demonstrate they gave their consent in court when defendants are the parties moving to enforce the settlement agreement. As a practical matter, the fact defendants are bringing the motion demonstrates they agree to the settlement terms. This issue was addressed and resolved by the court in Critzer.
In that case, the plaintiffs owned a townhouse in a development with a homeowners association (HOA). (Critzer, supra, 187 Cal.App.4th at p. 1246.) The plaintiffs sued their neighbor Jerry Enos, his successor-in-interest, and the HOA over Enos's modification of his townhouse. The lawsuit apparently settled, and the terms were recited on the record by the attorney representing the HOA. (Id. at p. 1257.) The successor-in-interest and both plaintiffs gave their personal consent in court. An attorney representing Enos stated he had authority for his client and Enos was " 'agreeable.' " (Ibid.) Subsequently, when the parties reached an impasse over the wording of the formal written agreement, the HOA brought a motion to enforce settlement pursuant to section 664.6. The trial court entered an order enforcing settlement and the plaintiffs appealed. (Critzer, supra, at p. 1246.) The Sixth District reversed, stating "the fact that the Critzers 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 ...." (Critzer, supra, 187 Cal.App.4th at pp. 1257-1258.)
Thus, Critzer involved (1) a defendant who had not personally given his oral consent to the settlement and (2) plaintiffs who had consented but subsequently opposed the enforcement of the settlement. The Sixth District concluded the fact the plaintiffs opposing enforcement personally consented to the oral settlement was not enough to satisfy the statute. The court stated section 664.6 required all the parties to give their personal consent to the settlement. (Critzer, supra, 187 Cal.App.4th at p. 1262.) The court supported this conclusion by referring to precedent stating that "the provisions of section 664.6 could be invoked to enforce a written settlement agreement only if it has been signed by all parties." (Critzer, supra, at p. 1256, italics added.) We agree with this conclusion and hold the moving party defendants must show all parties stipulated to the terms of the settlement "orally before the court." (§ 664.6.)
Next, we consider whether the oral settlement was unenforceable because Matson, like defendant Enos in Critzer, did not personally attend the settlement conference. In Critzer, the court stated:
"Plainly, there was no personal consent to the recited terms of the Settlement by two of the five parties, the HOA and Enos. Any claim that the Settlement was nonetheless effective because it was expressly consented to by Enos's agent [(i.e., his attorney)], and perhaps impliedly consented to by the HOA's agent (Attorney Mark Shem, who recited the terms of the Settlement), lacks merit. Under Levy, supra, 10 Cal.4th 578, in order for a settlement to be enforceable under section 664.6, the consent to settlement must have been given by the party, personally, and courts have rejected agency arguments posed to circumvent the party-consent requirement." (Critzer, supra, 187 Cal.App.4th at p. 1257.)
In the present appeal, Matson's role is comparable to defendant Enos's role in Critzer. Neither defendant personally gave their oral consent to the settlement before the court. Thus, the reasoning stated in Critzer, if applied to this case, would lead to the following conclusion: "[B]ecause there was neither an oral settlement all parties personally agreed upon, nor a written settlement agreement signed by all of the parties, the court lacked authority under the summary procedure of section 664.6 to enforce any settlement. Accordingly, we will reverse." (Critzer, supra, 187 Cal.App.4th at pp. 1246-1247.)
Prior to oral argument, we asked counsel to be prepared to address whether defendant Matson's role at the settlement conference was essentially the same as the role defendant Enos played in the oral settlement agreement considered in Critzer. In response, counsel for defendants argued the roles were not the same because Matson was insured and his insurance carrier was authorized under the terms of the insurance policy to settle claims without his consent. Counsel supports this distinction by citing Fiege, supra, 125 Cal.App.4th 1350 and Robertson v. Chen (1996) 44 Cal.App.4th 1290 (Robertson) for the principle that where an insurer fully covers the settlement under a policy that gives the insurer the right to settle without the insured's consent, the consent of the insured is not required so long as a representative of the insurer has consented to the agreement. (Fiege, at pp. 1354-1355.) The rationale for this principle is that the insurer's consent is more important than the insured's because the insurer is the entity paying the settlement amount and the policy's terms render the insured's consent superfluous.
In Fiege, a plaintiff injured in a traffic accident sued several defendants, including the driver of the car in which he was a passenger and two other individuals. (Fiege, supra, 125 Cal.App.4th at p. 1352.) The three individual defendants were insured under policies that gave the insurer the right to settle without their consent and to bind the defendants to the settlement. (Id. at p. 1353.) At a settlement conference personally attended by plaintiff and the insurers' representatives (but not the three individual defendants), the court put the terms of the settlement on the record—that is, the terms were taken down by a court reporter. (Id. at pp. 1353, 1355.) After stating the terms, the court asked " 'is there anybody that disagrees or has any addendums to the court's stated settlement?' " (Id. at pp. 1355-1356.) The insurers' representatives did not object, counsel orally agreed to the settlement, and plaintiff orally agreed. (Id. at pp. 1353, 1355-1356.) The appellate court upheld the trial court's determination that the insurers' representatives agreed to the settlement " 'orally before the court' " for purposes of section 664.6 because (1) the insurers' representatives were present when their counsel agreed to a combined payment by the insurers of $160,000 and (2) no representative responded when the court specifically asked on the record if anyone had any objections or addendums. (Id. at pp. 1355-1356.)
In the present case, the claims representative for Matson's insurer was located in Missouri and did not personally, or by phone, attend the mandatory settlement conference. California Rules of Court, rule 3.1380(b) addresses who must attend a mandatory settlement conference: "Trial counsel, parties, and persons with full authority to settle the case must personally attend the conference, unless excused by the court for good cause. If any consent to settle is required for any reason, the party with that consensual authority must be personally present at the conference." (Italics added.) Defendants contend the claims representative was not required to be personally present at the mandatory settlement conference because Superior Court of Fresno County, Local Rules, rule 2.5.5(C) explicitly states "the personal attendance of an employee of the [insurance] carrier is not required; provided, however, an employee of the insurance carrier with full authority to settle shall be immediately available by telephone until released by the court, regardless of the time zone." Defendants argue that (1) compliance with this local rule, (2) the personal presence of an attorney with authority to settle, and (3) the attorney's oral agreement before the court satisfies the requirement that the parties "stipulate ... orally before the court, for settlement of the case." (§ 664.6.) We disagree.
To be valid, a local rule "must be consistent with the federal and state Constitutions, statutes, rules of court, and applicable case law." (Jameson v. Desta (2018) 5 Cal.5th 594, 612.) Accordingly, a local rule cannot relax statutory requirements and we do not interpret this local rule as attempting to modify the requirements in section 664.6.
In this case, nothing in the minute order from the settlement conference, the declarations, the reporter's transcript of the hearing on the motion to enforce, or the trial court's enforcement order gives the name of the insurer's claims representative and states she attended the settlement conference telephonically. The presumption "that official duty has been regularly performed" (Evid. Code, § 664) cannot be used to establish the claims representative attended the settlement conference by telephone and orally consented to the settlement for two reasons. First, the claims representative was not performing an " 'official duty.' " (See Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, 422.) Second, compliance with the local rule requires only that the claims representative be "immediately available by telephone." It does not require actual participation by telephone. Thus, the presumption does not support the inference that the claims representative actually participated in the settlement conference, heard the settlement terms presented to the court, and "personally voiced h[er] acceptance of the settlement agreement to the court." (Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1706.) In addition, the principle that the judge presiding over both the settlement and the section 664.6 hearing "may avail himself of the benefit of his own recollection" (Kohn, 23 Cal.App.4th at p. 1533) does not justify concluding the trial court impliedly found the claims representative heard the terms of the settlement and personally voiced her acceptance of the settlement to the court. Implied findings must be supported by substantial evidence and there is no evidence in the record that the claims representative orally consented to the settlement over the telephone.
Defendants also contend section 664.6's requirement for consent was satisfied when O'Rourke, "authorized insurance defense counsel" (Robertson, supra, 44 Cal.App.4th at p. 1295), orally agreed to the settlement before the court. In Robertson, the court reversed a judgment based on the plaintiffs' acceptance of a settlement offer stated in a mandatory settlement conference statement. (Id. at pp. 1291-1292.) The court also discussed "a situation in which an insurance defense counsel or adjuster had consented to a settlement to be paid by the carrier on behalf of an insured" and suggested such consent would be sufficient. (Id. at p. 1294.) This suggestion was dicta because the facts presented did not involve the oral consent of insurance defense counsel or an adjuster and, in any event, the court concluded the settlement before it was unenforceable.
The court in Fiege quoted the dicta in Robertson about consent from insurance defense counsel or an adjuster. (Fiege, supra, 125 Cal.App.4th at pp. 1354-1355.) The statements about authorized insurance defense counsel also are dicta in Fiege because the insurers' representatives were physically present when the trial court read the settlement terms into the record. Thus, the court in Fiege did not hold consent from authorized insurance defense counsel, without the consent of the insurer's representative, was sufficient to satisfy the requirements of section 664.6. We are not persuaded by the dicta in Robertson and Fiege suggesting the consent of insurance defense counsel is a substitute for the consent of the insurer. Instead, we adhere to the Supreme Courts' interpretation that the term "parties" as used in section 664.6 "does not include their attorneys of record." (Levy, supra, 10 Cal.4th at p. 586.)
Based on the conclusion that neither Matson nor the insurer's claims representative orally consented to the settlement "before the court" (§ 664.6), it follows that the settlement agreement did not comply with the statute. Therefore, the settlement agreement is not enforceable. As a result, we need not address the other points raised by plaintiff, which points include whether the condition precedent was fulfilled, whether the settlement involved an illusory promise, whether the written agreement added new terms beyond the oral agreement, and whether the oral agreement lacked the certainty needed to form an enforceable contract.
DISPOSITION
The order granting the motion to enforce settlement is reversed. The matter is remanded with directions to vacate that order and issue a new order denying the motion.
Plaintiff shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)