Filed 7/17/14 Cross v. Meza CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


JUAN CROSS et al.,                                                   H038960
                                                                    (Monterey County
         Plaintiffs and Respondents,                                 Super. Ct. No. M109800)

             v.

DOMINGO MEZA,

         Defendant and Appellant.



         Appellant is Domingo Meza, the defendant in the underlying action for personal
injuries related to a car accident. He appeals a judgment entered pursuant to Code of
Civil Procedure section 664.61 on the grounds that his attorney made a mistake at the
settlement conference. (§ 473, subd. (b) ).
                                           STATEMENT OF THE CASE
         The instant case arises from the settlement of a personal injury action that was
filed in December 2010. On November 4, 2011, the Monterey County Superior Court
held a mandatory settlement conference. During the settlement conference, both
plaintiffs Juan and Angelita Cross and their counsel were personally present in court.
Counsel of record for defendant Domingo Meza’s insurance carrier, Edward Cullen, was
not personally present, because he was recovering from knee surgery. In his place,


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             All further unspecified statutory references are to the Code of Civil Procedure.
attorney Susan Grey made a special appearance. A representative for the insurance
carrier was not present, but was available to Ms. Grey by telephone standby.2
       At the conference, a settlement was reached that provided that defendant’s
insurance carrier would pay $19,900 to Juan Cross, and $17,400 to Angelina Cross. The
specific terms were placed on the record in court. In addition, Ms. Grey stated that she
was “thoroughly briefed on the case [and] was aware that additional settlement talks
between the carrier and Mr. Cullen were to occur the morning of the settlement
conference.” Ms. Grey also represented to the court that she had “personally verified the
settlement authority on both the Plaintiffs by phone outside the courtroom this
afternoon.”
       On February 7, 2012, plaintiff filed a motion to enter judgment after settlement
conference pursuant to section 664.6. Defendant opposed the motion on the ground that
Ms. Grey was mistaken about the amount to which she was authorized to settle.
Specifically, defendant argued the settlement authority was actually for payment of
$22,578 to plaintiffs, rather than the $37,100 to which Ms. Grey agreed at the settlement
conference.
       At the opposition to defendant’s section 664.6 motion, defendant brought
Ms.\ Grey to court to communicate with the judge about her mistake in settlement. At the
hearing, Ms. Grey was not sworn as a witness, nor did she provide a sworn declaration of
her mistake. She did, however, tell the court, “I was thoroughly briefed on the case; was


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         Monterey County Local Rules of Court state, “at any mandatory Settlement
Conference, all parties and/or principals with full legal and monetary authority to settle
the case shall be in personal attendance. Insurance representatives shall have full
authority to settle the case and shall be fully knowledgeable about the case.
[¶] C. Requests for telephone standby shall be approved only by the Judge. If telephone
standby is approved, the requesting person shall be available at the agreed location until
excuse by the Court regardless of the time in that location. . . .” (Monterey County Local
Rules of Court, rule 6.13.)
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aware that additional settlement talks between the carrier and Mr. Cullen were to occur
the morning of the settlement conference. . . . [¶] I had a reasonable belief that there may
be increased authority on the file because of these earlier negotiations between Mr.
Cullen and carrier. I came to court, and I can verify that I went out and I called the
carrier twice. I spoke to someone personally. I was referring to the same document as
they were referring to. . . . [¶] I spoke to that person in person. It was a live voice. I
made notations in Plaintiff’s brief confirming what my understanding was from talking
with them. . . . [¶] I asked them to verify the amount in Plaintiff’s settlement conference
demand. . . . I can only assume that they understood it meant our offer, not demand.
[¶] And I verified a number and made notations on the sheet for the wrong amount. Then
I came into court and I said on the record that I had personally spoken to the carrier and
that I had verified authority.”
       After hearing Ms. Grey’s statements at the opposition to the motion, the court
opined that with the information it had, it did not consider the conduct in settling the case
to be Ms. Grey’s fault; “rather it seems to be a more systemic problem where the carrier
simply was not—was not complying with its obligation [to attend the settlement
conference].” In addition, defendant did not provide any declaration from the carrier
attesting to the mistake in settlement authority. Based on what the court had before it
when considering whether to enter judgment, the court determined that Ms. Grey had not
made a mistake for which defendant were entitled to relief.
       The court granted plaintiff’s motion, and entered judgment pursuant to
section 664.6 according to the terms placed on the record at the mandatory settlement
conference. Defendant filed a notice of appeal.




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                                         DISCUSSION
       Defendant asserts the trial court erred in granting plaintiff’s motion to enter
judgment pursuant to section 664.6, because defendant’s counsel made a mistake at the
settlement conference regarding the amount of money for which she could settle the case.
       Section 664.6 provides a statutory procedure for the enforcement of a settlement
agreement in pending litigation: “If the 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.”
       The California Supreme Court has established the following standard for the trial
court’s ruling upon a section 664.6 motion: “[I]n ruling upon a section 664.6 motion for
entry of judgment enforcing a settlement agreement, and in determining whether the
parties entered into a binding settlement of all or part of the case, a trial 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 making the foregoing determination, the trial court may
consider the 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.”
(In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) The standard governing the
appellate court’s review of the trial court’s factual determinations on a section 664.6
motion to enforce a settlement is whether the trial court’s ruling is supported by
substantial evidence. (Ibid.)
       Here, the statutory conditions of section 664.6 were met, because the parties

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entered into a stipulation to settle the litigation on the record. Specifically, plaintiff’s
counsel stated on the record, “Defendant will in full settlement of all claims, will pay to
Plaintiff Juan Cross the amount of $19,900, and to Plaintiff Angelina Cross, the amount
of $17,400. In exchange, a release and dismissal of all claims will be filed and offered to
defendant.” Following the statement by plaintiff’s counsel, the court inquired of defense
counsel whether she had “authority on behalf of the Defendants to place this on the
record so that it is enforceable under [section] 664.6?” To which defense counsel
responded, “I just verified—personally verified the settlement authority on both the
Plaintiffs by phone outside the courtroom this afternoon.” The court confirmed that
counsel had authority to settle the case, asking her, “So you do have such authority?” To
which she responded, “Yes, I do.”
       Defendant argues on appeal that the court should have denied plaintiff’s motion to
enter judgment, because of Ms. Grey’s mistake in settling the case for $37,300 rather
than $22,578 that was authorized by the carrier. He bases his argument on the provisions
of section 473, subdivision (b) which provides, in relevant part: “The court may, upon
any terms as may be just, relieve a party or his or her legal representative from a
judgment, dismissal, order, or other legal proceeding taken against him or her through his
or her mistake, inadvertence, surprise, or excusable neglect.” The section requires the
application for relief be accompanied by an attorney’s sworn affidavit attesting to his or
her mistake, inadvertence, surprise, or neglect. The trial court’s ruling on a discretionary
motion for relief pursuant to section 473, subdivision (b) is reviewed for an abuse of
discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
       Defendants have not established that the court abused its discretion in refusing to
grant relief pursuant to section 473, subdivision (b). Ms. Grey’s statement to the court
does not show that she made a mistake. In fact, her statement demonstrates she knew the
circumstances of the case and the ongoing settlement negotiations, acted diligently in

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communicating with the carrier to the point of speaking with a live person on the phone
while she was in court, and confirmed with the carrier that she had authority to settle the
case. Ms. Grey’s statement shows that any error that may have occurred was committed
by the representative for the carrier who spoke to Ms. Grey and verified Ms. Grey’s
authority to settle the case.
       We find the court’s granting of defendant’s section 664.6 motion was supported
by substantial evidence. As stated above, the material terms of the settlement were
clearly stated on the record. The court specifically questioned both plaintiffs Juan and
Angelina Cross whether they understood the terms of the settlement, whether they had
any questions, and whether they agreed to the terms. Both plaintiffs clearly and
unequivocally agreed to the terms on the record.
       Moreover, there was substantial evidence to support the court’s finding that
Ms. Grey had the authority to settle the matter on behalf of the carrier, and that the carrier
agreed to the terms of the settlement as stated. Ms. Grey repeatedly told the court she had
the authority, both directly and when questioned by the court. In addition, when
presented with Ms. Grey’s statement at the opposition to the section 664.6 motion, the
court concluded that Ms. Grey did not make a mistake at the settlement conference;
rather, if there was any fault to assign, it was to the insurance carrier representative.
       The court’s entry of judgment pursuant to section 664.6 was proper and was
supported by substantial evidence. (In re Marriage of Assemi, supra, 7 Cal.4th 911.)




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                                 DISPOSITION
     The judgment is affirmed.




                                   ______________________________________
                                              RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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