Diaz v. May, A057672

• Decision Date: 13 May 1993
• Docket Number: No. A057672,A057672
• Citation: 15 Cal.App.4th 1268,19 Cal.Rptr.2d 409
• Court: California Court of Appeals Court of Appeals
• Parties: Teresa DIAZ, Plaintiff and Appellant, v. Ivan A. MAY, M.D., et al., Defendants and Respondents.

Page 409

19 Cal.Rptr.2d 409

15 Cal.App.4th 1268

Teresa DIAZ, Plaintiff and Appellant, v. Ivan A. MAY, M.D., et al., Defendants and Respondents.

No. A057672.

Court of Appeal, First District, Division 3, California.

May 13, 1993.

[15 Cal.App.4th 1269] Robert W. Brower, Hercules, for plaintiff and appellant.

D. Stuart Candland, Craddick, Candland & Conti, Danville, Richard G. Logan, Oakland, Thomas E. Pfalzer, R. Dewey Wheeler, McNamara, Houston, Dodge, McClure & Ney, Walnut Creek, for defendants and respondents.

WERDEGAR, Associate Justice.

Teresa Diaz brought suit for medical malpractice against Samuel Merritt Hospital (Hospital) and several physicians (Doctors). Diaz appeals from a judgment entered pursuant to the terms of a settlement. (Code Civ. Proc., § 664.6.) ¹ She contends section 664.6 was inapplicable because the written settlement on which the court based its judgment was signed only by Diaz's attorney (by his secretary), and not by Diaz personally. We conclude section 664.6 does not necessarily require the personal signature of the settling litigant and the court could properly find the written settlement was authorized by Diaz. We therefore affirm.

FACTS AND PROCEDURAL BACKGROUND

Diaz's complaint for medical malpractice was filed April 11, 1985. In November of 1987, defendants moved for enforcement of a written stipulation of settlement. Counsel for Hospital and Doctors declared their clients had authorized them to settle for $15,000 each. Counsel for Doctors made this $30,000 offer by telephone to Diaz's then-attorney, Richard Katz, on July 2, 1987. Later the same day, Katz telephoned Doctors' attorney and said Diaz had authorized him to accept the $30,000 offer. Defense counsel then received the following letter dated July 6 and signed by Katz's secretary: "Gentlemen: [p] This will confirm that the above case has been settled for $30,000.00 and we have so advised the Court. Please forward the settlement drafts and releases to us promptly. [p] I enjoyed working with your offices. Thank you." The releases were sent, but never returned; Katz informed defendants' lawyers that Diaz refused to go through with the settlement.

In opposition to the motion to enforce settlement, Diaz declared she did not authorize Katz to settle the case for $30,000 or any other amount. She first learned of the purported settlement when she received the releases from Katz's office. Katz later told her defendants were willing to make larger future payments instead of the immediate $30,000. Diaz rejected these offers and fired Katz.

Judge John Sutter heard the motion on January 12, 1988. Katz testified he received the $30,000 offer by telephone. He communicated the offer to Diaz, who authorized him to accept it. He telephoned the acceptance to Doctors' attorney, then directed and authorized his secretary to send a confirming letter. Diaz later told Katz she had learned, after agreeing to the settlement, that it would adversely affect her social security benefits that had just been approved. For that reason, she no longer wanted the settlement.

By minute order of January 22, 1988, and signed order filed April 20, 1988 (the latter signed, apparently through clerical error, by Judge Sutter's clerk, rather than the judge), Judge Sutter found the letter from Katz's office was a written stipulation for settlement within the meaning of section 664.6. He granted the motion to enforce settlement, but ordered several provisions not evidenced by the letter deleted from the releases. Judge Sutter did not enter judgment and did not explicitly order Diaz to dismiss her action.

More than a year later, on June 22, 1989, defendants moved to dismiss the action for delay in prosecution; in the alternative, they sought a contempt order against Diaz for her failure to consummate the settlement and dismiss the action. The court, by Judge Michael Ballachey, denied the motion "without prejudice to the rights of the defendants to bring a motion to enter a judgment consistent with the settlement, and to fund same." Judge Ballachey "suggest[ed]" defendants return to Judge Sutter from whom, assuming they were prepared to fund the settlement, they could obtain a final judgment of dismissal.

Defendants did not seek such a judgment from Judge Sutter. Instead, they again moved, on May 9, 1990, to dismiss the action for failure to prosecute. The court, by Judge Demetrios Agretelis, denied defendants' motion to dismiss. The court further ordered: (1) that Judge Sutter's 1988 order, signed only by his clerk, be vacated and a new order be prepared and submitted for his signature nunc pro tunc; and (2) that final judgment was entered pursuant to the settlement. Diaz appeals from this judgment.

DISCUSSION

Section 664.6 provides: "If parties to pending litigation stipulate, in writing 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." This statute, added in 1981, provides an expeditious alternative to amendment of the answer or a motion for summary judgment to enforce certain settlement agreements. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 993-994, 203 Cal.Rptr. 356; City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 762, 234 Cal.Rptr. 353.)

We are faced with a conflict in authority on the question whether "parties" in section 664.6 refers only to the individual litigants themselves or whether the oral or written stipulation may be by the parties' attorneys.

In Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230, 221 Cal.Rptr. 412 (hereafter Haldeman ), counsel for all parties reached, at a judicially supervised settlement conference, an oral on-the-record settlement stipulation. Haldeman was not personally present, but her attorney acted (the trial court later found) with her authority in agreeing to the settlement. (Id. at pp. 232-233, 221 Cal.Rptr. 412.) Haldeman contended the settlement could not be enforced under section 664.6 because she had not personally stipulated to it before the court. The Court of Appeal disagreed: "Common sense and common practice indicate that the term 'party' should include the individual litigant or his attorney of record acting on his behalf. For example, under the statutory language of section 437c, 'Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto' and 'Notice of the motion and supporting papers shall be served on all other parties to the action at least 28 days before the time appointed for hearing.' Countless other examples of use of the terms 'party' or 'parties' appear in our statutes, and it is understood universally that the terms are intended to include the party litigant personally or through his attorney of record. 'It is settled that " 'We are required to give effect to statutes "according to the usual, ordinary import of the language employed in framing them." [Citation.]' " ' [Citation.] In enacting section 664.6, had the Legislature intended 'parties' to have a meaning other than this commonly understood meaning, it could and would have provided so in the statute. [Citations.]" (Id. at pp. 233-234, 221 Cal.Rptr. 412.)

The court in Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193 (hereafter Gallo ) took the opposite position. The plaintiff's attorney had sent the defendant's insurer a letter confirming the terms of a settlement reached orally with the insurer. Although the plaintiff did not personally sign the letter, he subsequently endorsed a settlement draft from the insurer. (Id. at pp. 331-332, 252 Cal.Rptr. 193.) The appellate court ultimately held the signed draft was an adequate stipulation in writing to allow enforcement under section 664.6. (Id. at pp. 333-334, 252 Cal.Rptr. 193.) The court first stated, however, that the letter confirming the settlement did not meet the requirements of the section because it was "only signed by plaintiff's attorney," not by plaintiff himself. (Id. at p. 333, 252 Cal.Rptr. 193.) ²

The statement in Gallo, arguably dictum, was followed in a holding on similar facts in Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 285 Cal.Rptr. 441 (hereafter Nicholson ). The plaintiff's attorney sent opposing counsel a letter memorializing a settlement reached, but not put on the record, at a judicially supervised conference. (Id. at pp. 1679-1680, 285 Cal.Rptr. 441.) Citing Gallo, the Court of Appeal held the letter was not a written stipulation within the meaning of section 664.6 because it was "signed by plaintiff's attorney but not by plaintiff." (Id. 233 Cal.App.3d at p. 1681, 285 Cal.Rptr. 441.) The court went on to hold the statute of frauds barred enforcement of the settlement by other procedural means. (Id. at pp. 1681-1683, 285 Cal.Rptr. 441.)

We agree with the Haldeman court that "parties" was intended to have the same meaning in section 664.6 as it generally has in civil procedure, i.e., that it includes the parties acting through their duly authorized attorneys of record. Neither Gallo nor Nicholson offers any rationale for the opposite view, and neither cites compelling authority. The Nicholson court cited only Gallo, which, in turn, cited two decisions, neither of which, as will be shown, squarely supports a literal interpretation of "parties."

In City of Fresno v. Maroot, supra, 189 Cal.App.3d 755, 234 Cal.Rptr. 353, counsel memorialized an oral settlement by reciting the terms to a court reporter present for a deposition. Counsel for the city then sent counsel for Maroot a written stipulation setting out the terms. The opinion does not reveal whether counsel for the city signed the stipulation; it does state, however, that the stipulation was never executed by Maroot, but was retained by his attorney. (Id. at pp. 757-760, 762, 234 Cal.Rptr. 353.) The Court of Appeal held Maroot could not enforce the settlement under ...