Filed 9/18/15 Howard v. Spruce Holdings CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

CHARLES V. HOWARD, Individually and as
Personal Representative, etc.,                                                             F069073

         Plaintiff and Appellant,                                            (Super. Ct. No. VCU 249871)

                   v.
                                                                                         OPINION
SPRUCE HOLDINGS, LLC,

         Defendant and Respondent.



         APPEAL from orders of the Superior Court of Tulare County. Paul A. Vortmann
and Harry N. Papadakis,* Judges.
         Meghan E. Howard for Plaintiff and Appellant.
         Wilson Getty, William C. Wilson, D. Scott Barber; Williams Iagmin and Jon R.
Williams for Defendant and Respondent.
                                                        -ooOoo-



*       Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
       Plaintiff appeals from the order denying plaintiff’s motion for reconsideration of
the order granting defendant’s motion to enforce the settlement agreement entered into by
the parties after mediation. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The complaint in this action names the Estate of Karen L. Howard as plaintiff and
alleges a cause of action for wrongful death and a negligence cause of action for medical
expenses incurred by decedent prior to her death. It alleges decedent’s husband, Charles
V. Howard, is entitled to bring the action as decedent’s husband and as the duly
appointed personal representative of her estate. On October 21, 2013, the parties
mediated the claims asserted in the complaint before a retired judge. Charles1 attended
the mediation, along with his daughter, Nicole Howard, and his attorneys. Charles’s
other daughter, Meghan Howard, was unable to attend. A representative of defendant,
Spruce Holdings, LLC, doing business as Redwood Springs Healthcare Center, and
defendant’s attorney also attended. At the end of the day, those present reached an
agreement and signed the stipulation for settlement. Subsequently, counsel for plaintiff
advised counsel for defendant that the Howards were having second thoughts about the
settlement agreement. The Howards discharged their attorneys and substituted Meghan,
an attorney, in their place.
       Defendant filed a motion to enforce the settlement agreement, pursuant to Code of
Civil Procedure section 664.6. The estate, through Meghan as its attorney, filed
opposition, asserting that Charles, Nicole, and Meghan were the plaintiffs in the action,
and the signatures of all three were required in order to settle the litigation. Because
Meghan had not signed, they contended there was no enforceable settlement agreement


1       We refer to the Howards by their first names for clarity and convenience because they
share a last name. No disrespect is intended.


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and defendant’s motion should be denied. In its reply, defendant contended Meghan was
not a party to the action, so her signature on the settlement agreement was not necessary
in order to have an enforceable agreement. Defendant contended Charles was the
personal representative of the estate, the only plaintiff, and his signature on its behalf
resulted in a binding written agreement.
       The trial court granted defendant’s motion to enforce the settlement and ordered
plaintiff to comply with it, concluding Charles’s signature as personal representative of
the estate and the signature of defendant’s representative resulted in a binding agreement.
Plaintiff filed a motion for reconsideration. The trial court denied it, both because the
motion was not timely served on defendant and because plaintiff did not identify any new
or different facts, circumstances or law warranting reconsideration, as required by Code
of Civil Procedure section 1008. Plaintiff appeals from the order denying the motion for
reconsideration.
                                       DISCUSSION
I.     Appealability
       “‘A reviewing court has jurisdiction over a direct appeal only when there is (1) an
appealable order or (2) an appealable judgment. [Citations.]’ [Citation.] Regardless of
whether an appealability challenge is raised, ‘[t]he existence of an appealable judgment is
a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its
own initiative whenever a doubt exists as to whether the trial court has entered a final
judgment or other order or judgment made appealable by Code of Civil Procedure section
904.1.’” (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1250 (Critzer).)
       The notice of appeal indicates the appeal is from the March 4, 2014, order, which
was the order denying plaintiff’s motion for reconsideration of the order enforcing the
settlement agreement. Generally, a motion for reconsideration is not separately
appealable, but “if the order that was the subject of a motion for reconsideration is
appealable, the denial of the motion for reconsideration is reviewable as part of an appeal

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from that order.” (Code Civ. Proc., § 1008, subd. (g).)2 Here, the notice of appeal did
not indicate plaintiff was appealing from the underlying order granting defendant’s
motion to enforce the settlement agreement.
       In Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35
Cal.4th 15 (Walker), plaintiff’s notice of appeal indicated she was appealing from the
order denying her motion for new trial. (Id. at p. 18.) Such an order is not separately
appealable, but may be reviewed on appeal from the underlying judgment. (Ibid.) The
court noted that notices of appeal are to be liberally construed (citing Cal. Rules of Court,
former rule 1(a)(2), now rule 8.100(a)(2)), and concluded “a reviewing court should
construe a notice of appeal from an order denying a new trial to be an appeal from the
underlying judgment when it is reasonably clear the appellant intended to appeal from the
judgment and the respondent would not be misled or prejudiced.” (Walker, supra, 35
Cal.4th at pp. 20–21, 22, fn. omitted.) We may apply this principle here, and consider the
appeal to be from the underlying order granting defendant’s motion to enforce the
settlement agreement. It is reasonably apparent plaintiff intended to challenge the
validity of the settlement agreement and the order enforcing it. Defendant would not be
prejudiced because its respondent’s brief indicates it interpreted plaintiff’s appeal as
challenging the order granting the motion to enforce the settlement, and it addressed the
propriety of that order on the merits.
       Whether the order granting defendant’s motion to enforce the settlement
agreement is a final, appealable order or judgment depends on whether it finally disposed
of the action. The court considered this question in Critzer:

       “It is true that the court, in its order granting the HOA’s motion to enforce
       settlement, did not formally use the word ‘judgment’ as provided under the
       statute. [Citation.] ‘“A judgment is final ‘when it terminates the litigation


2       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.


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       between the parties on the merits of the case and leaves nothing to be done
       but to enforce by execution what has been determined.’” [Citations.]’
       [Citation.] As the high court has further explained: ‘“It is not the form of
       the decree but the substance and effect of the adjudication which is
       determinative. As a general test, which must be adapted to the particular
       circumstances of the individual case, it may be said that where no issue is
       left for future consideration except the fact of compliance or
       noncompliance with the terms of the first decree, that decree is final, but
       where anything further in the nature of judicial action on the part of the
       court is essential to a final determination of the rights of the parties, the
       decree is interlocutory.”’” (Critzer, supra, 187 Cal.App.4th at pp. 1251–
       1252.)
       Here, the record indicates the trial court adopted its tentative ruling as its final
order. The ruling did not purport to be a judgment, nor did it order entry of judgment. It
granted the motion to enforce the stipulation for settlement and ordered plaintiff to
comply with that agreement. The stipulation requires plaintiff to execute a dismissal with
prejudice once payment is made. Thus, the order contemplated dismissal of the action.
       The order granting the motion to enforce the settlement left no issue for future
consideration by the court except the fact of compliance or noncompliance with the terms
of the order. No further judicial action on the part of the court was contemplated, other
than enforcement of the order; no further judicial action was essential to a final
determination of the rights of the parties. Accordingly, we will amend the order to
include an appealable judgment incorporating the terms of the written settlement
agreement so as to expedite appellate review. (See Hines v. Lukes (2008) 167
Cal.App.4th 1174, 1183.)
II.    Enforcement of Stipulation for Settlement
       In reviewing the grant of a motion to enforce a settlement agreement pursuant to
section 664.6, the trial court’s factual findings regarding whether the parties entered into
a binding settlement agreement are subject to substantial evidence review.
(Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 544.) Questions of law,




                                              5.
including construction and application of statutes, are subject to independent review.
(Ibid.)
          A.     Parties to the action
          The first question raised by plaintiff’s challenge to the order enforcing the
settlement agreement is: who is the plaintiff?
          “An ‘estate’ is not a legal entity and is neither a natural nor artificial person. It is
merely a name to indicate the sum total of the assets and liabilities of a decedent .…
[Citation.] An ‘estate’ can neither sue nor be sued.” (Estate of Bright v. Western Air
Lines (1951) 104 Cal.App.2d 827, 828–829.) Any litigation on behalf of the estate must
be maintained by the executor or administrator of the estate. (Galdjie v. Darwish (2003)
113 Cal.App.4th 1331, 1344.) The executor or administrator of the estate is also referred
to as the personal representative. (Prob. Code, § 58.)
          “A wrongful death cause of action is a statutory claim providing compensation for
specified heirs of the decedent for the loss they suffered as a result of the decedent’s
death. [Citations.] The right to recover under a wrongful death theory is entirely
statutory, and the wrongful death statutes create a new cause of action that did not exist in
the common law.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76 (Adams).)
The wrongful death statute provides that “[a] cause of action for the death of a person
caused by the wrongful act or neglect of another may be asserted by any of the following
persons or by the decedent’s personal representative on their behalf.” (§ 377.60.) The
list of persons other than the decedent’s personal representative who may bring the action
includes: “decedent’s surviving spouse, domestic partner, children, and issue of deceased
children.” (§ 377.60, subd. (a).)
          The decedent’s personal representative may maintain the wrongful death action on
behalf of the heirs, as “‘a statutory trustee to recover damages for the benefit of the heirs.’
[Citations.] Either the decedent’s personal representative on behalf of the heirs or the
specified heirs (either as plaintiffs or joined defendants) may assert the wrongful death

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claim—but not both.” (Adams, supra, 196 Cal.App.4th at p. 77.) If the action is brought
by the heirs, all the heirs should join or be joined in the action. (Ruttenberg v. Ruttenberg
(1997) 53 Cal.App.4th 801, 807.) If the wrongful death plaintiffs fail to join all the heirs,
the superior court has jurisdiction to try the action, but the plaintiffs “proceed at their
peril.” (Id. at p. 809.) Any omitted heirs may have a cause of action against the plaintiffs
for damages for failing to join them in the wrongful death action. (Id. at pp. 807–810.)
       The complaint alleged Charles was entitled to bring this wrongful death action,
both as decedent’s spouse and as her personal representative. He did not join as plaintiffs
(or as nominal defendants who declined to join as plaintiffs) decedent’s daughters, who
were also entitled to bring the wrongful death cause of action as heirs. (§ 377.60, subd.
(a).) No one other than Charles was identified in the complaint as a party prosecuting the
action. Accordingly, we construe the complaint as naming Charles as the only plaintiff in
the action, whether in his capacity as personal representative or in his capacity as heir.
       A cause of action of the decedent that survives his or her death may be brought by
his or her personal representative or successor in interest. (§§ 377.20, 377.30.) The
second cause of action of the complaint alleged such a cause of action. There was no
allegation in the complaint regarding a successor in interest. Consequently, Charles as
personal representative was the only proper plaintiff alleged in this cause of action.
       B.     Motion to enforce settlement agreement
       “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.”
(§ 664.6.) Because Charles is the plaintiff in this action, substantial evidence supports
the trial court’s finding that his signature was the only signature, other than defendant’s,



                                               7.
required in order to make the stipulation for settlement a binding, enforceable agreement
between the parties.3
         Charles did not dispute that he signed the stipulation for settlement. He did
suggest he signed because he felt pressured to do so. The mediation took place in San
Francisco and no agreement had been reached at 5:00 p.m. Charles asserted his attorney,
Reginald McKamie, “stressed that he needed to leave in order to catch his flight and
traffic [was] already bad because of the Bart strike.” Plaintiff’s counsel and defense
counsel “stressed that an agreement needed to be made at that time because they would
not come back to continue mediation,” and Charles “felt pressured to sign whatever they
said.”
         In Chan v. Lund (2010) 188 Cal.App.4th 1159 (Chan), the plaintiff, Chan,
engaged in mediation with the defendants on the eve of trial; the parties reached a
settlement and Chan signed the written agreement. Subsequently, Chan discharged his
attorney, hired a new attorney, and resisted enforcement of the agreement, claiming his
consent to the settlement was obtained through the economic duress, undue influence,
and fraud of his former attorney. Chan declared that, prior to the mediation, he indicated
to his attorney that he did not want to attend the mediation; his attorney replied that, if
Chan would not attend the mediation, the attorney would not represent him at trial. (Id.
at p. 1167.) Chan attended the mediation, but when he indicated he would only agree to
the settlement proposed on his behalf earlier in the litigation, his attorney said Chan was
not negotiating, and the attorney would not represent him at trial. (Ibid.) Later in the
mediation session, Chan’s attorney told him he would discount his fee by $10,000 if
Chan would agree to the terms set out in the written settlement agreement. Chan signed,



3      There was also substantial evidence that neither plaintiff’s attorney nor the Howards
advised defendant’s attorney or the judge who presided at the mediation that the settlement was
conditioned on Meghan approving it or signing the written agreement.


                                               8.
assertedly because he feared his attorney would carry out the threat not to represent him
at trial the next day. (Ibid.)
       The appellate court upheld the trial court’s order enforcing the settlement
agreement. The court concluded Chan could rescind the agreement on the ground of
economic duress only as to the contracting party who exercised the duress, or a
contracting party jointly interested with him. (Chan, supra, 188 Cal.App.4th at p. 1174.)
Since Chan’s attorney was not a contracting party or jointly interested with a contracting
party, Chan was not entitled to rescind. Further, there was no evidence the defendants
(the contracting parties) connived with Chan’s attorney or were aware of his threats when
Chan executed the agreement. (Ibid.) Consequently, Chan was not entitled to rescind on
the ground of economic duress. (Id. at p. 1175.)
       Here, Charles seeks to avoid the settlement agreement by claiming he was
pressured into signing it by his attorneys and defendant’s attorney. The only pressure
alleged was that one of his attorneys had to leave to catch a flight, and his attorneys and
opposing counsel all represented that they would not come back and continue the
mediation later. No other consequence of a failure to agree was threatened. The only
result of not signing the agreement would have been that the matter would not have
settled and would have proceeded to trial. At worst, Charles claims he was rushed into a
decision. There was no threat that plaintiff’s attorney would not represent him at trial if
he failed to sign the agreement; there was no threat by defendant of any other adverse
consequences to Charles or his case if he declined to sign the agreement.
       “A party to a contract may rescind the contract … [i]f the consent of the party
rescinding … was given by mistake, or obtained through duress, menace, fraud, or undue
influence, exercised by or with the connivance of the party as to whom he rescinds, or of
any other party to the contract jointly interested with such party.” (Civ. Code, § 1689,
subd. (b)(1).) Charles does not point to any evidence of duress, menace, fraud, or undue



                                             9.
influence by defendant or anyone jointly interested in the action with defendant,
sufficient to warrant rescission of the settlement agreement.
       The evidence indicates the parties attended mediation, negotiated a settlement
agreement, and put it in writing. Charles, Nicole, defendant’s representative, counsel for
both parties, and the retired judge presiding at the mediation all signed the writing.
Substantial evidence supports the trial court’s determination that the parties entered into
an enforceable settlement agreement.
       Relying on Rael v. Davis (2008) 166 Cal.App.4th 1608 (Rael), plaintiff argues the
signatures of all of the Howards were required for an enforceable settlement agreement.
Rael, however, is distinguishable. In Rael, Mark Rael, the son of Tony Rael, Jr., initiated
a legal proceeding for conservatorship of Tony’s estate and person. (Id. at p. 1613.) The
court ordered Tony and Mark to mediation. Others, including Tony’s wife, Cruz, and his
daughters from a previous marriage, participated in the mediation, along with the
attorneys for Tony, Mark, and Cruz. At the fourth mediation session, those present
reached an agreement, put it in writing, and signed it. Mark, however, was not present
and did not sign the agreement. (Id. at p. 1613.) The conservatorship matter proceeded
to trial. After Tony died, Cruz filed suit, attempting to enforce the settlement agreement
prepared at the fourth mediation session against the executor of Tony’s estate. (Id. at
p. 1615.) She contended a severable, enforceable contract between Tony and Cruz was
formed regardless of Mark’s failure to sign the writing. (Id. at pp. 1616, 1617.)
       The court affirmed the judgment against Cruz. From the evidence presented, the
trial court had concluded those present at the mediation intended the agreement to
become operative only if Mark also signed it. (Rael, supra, 166 Cal.App.4th at p. 1616.)
The evidence included Cruz’s deposition testimony that everyone’s signature was
required. (Id. at p. 1616, fn. 8.) Because there was no binding agreement, the clause in
the proposed agreement waiving mediation confidentiality did not take effect, and the
writing was not admissible to prove a severable contract between Tony and Cruz. (Id. at

                                             10.
p. 1616.) The agreement expressly set forth the persons who had to sign the agreement to
bind themselves to its provisions; they included not only Tony and Cruz, but Tony’s three
children. (Id. at p. 1620.) Because Mark had not signed it, the term of the agreement
waiving mediation confidentiality never took effect and the agreement was inadmissible.
Because it was inadmissible, no part of the agreement was enforceable.
       In Rael, Mark, the nonsigning individual, was a party to the litigation in the course
of which the mediation took place. He was also expressly included in the agreement as a
person required to sign. There was evidence everyone who signed the agreement
intended it to be inoperative until Mark signed.
       Here, the mediation was between the parties to the wrongful death action.
Meghan, the nonsigning individual, was not a party to the litigation. The agreement did
not expressly provide for Meghan’s signature. There was evidence Charles and Nicole
did not intend the agreement to be binding until Meghan signed it. There was also
evidence defendant had no such intent. The trial court implicitly resolved the issue in
favor of defendant. Substantial evidence supports the trial court’s implied finding, and
we cannot substitute a contrary finding for that of the trial court. (Critzer, supra, 187
Cal.App.4th at p. 1253.) We find no error in the trial court’s order granting the motion to
enforce the settlement agreement.
       C.     Motion for reconsideration
       After the motion to enforce the settlement agreement was granted, plaintiff filed a
motion for reconsideration. The motion for reconsideration was denied both on
procedural grounds (because it was not timely served on defendant) and on the merits
(because it did not present any new facts, circumstances, or law as grounds for
reconsideration).
       If hand served, the motion and all supporting papers were required to be served at
least 16 court days before the hearing date. (§ 1005, subd. (b).) The motion was set for
March 4, 2014; thus, it was required to be hand served on defendant by February 7, 2014.

                                             11.
Although the motion was timely filed on February 5, 2014, the evidence presented to the
trial court indicated it was hand served on defense counsel on February 13, 2014, with no
exhibits attached. Substantial evidence supports the trial court’s denial of the motion for
reconsideration on the ground all moving and supporting papers were not timely served
on defendant. (§ 1005, subd. (b).)
       Reconsideration is governed by section 1008:

       “When an application for an order has been made to a judge, or to a court,
       and refused in whole or in part, or granted, or granted conditionally, or on
       terms, any party affected by the order may, within 10 days after service
       upon the party of written notice of entry of the order and based upon new or
       different facts, circumstances, or law, make application to the same judge
       or court that made the order, to reconsider the matter and modify, amend, or
       revoke the prior order. The party making the application shall state by
       affidavit what application was made before, when and to what judge, what
       order or decisions were made, and what new or different facts,
       circumstances, or law are claimed to be shown.” (§ 1008, subd. (a).)
       In addition, “‘[a] party seeking reconsideration … must provide a satisfactory
explanation for the failure to produce the evidence at an earlier time.’” (Jones v. P.S.
Development Co., Inc. (2008) 166 Cal.App.4th 707, 723–724 (Jones), disapproved on
another ground in Reid v. Google (2010) 50 Cal.4th 512, 532, fn. 7.)
       The declarations submitted in support of plaintiff’s motion for reconsideration did
not explain what application was made before, when, or to what judge. They did not set
out the claimed new or different facts, circumstances, or law on which plaintiff relied in
bringing the motion for reconsideration. They did not explain why any purportedly new
facts, circumstances, or law were not presented in plaintiff’s opposition to the motion to
enforce the settlement agreement. The motion for reconsideration, like plaintiff’s
opposition to the motion to enforce the settlement agreement, was based on the claim that
the Howards were all plaintiffs in the action; it again asserted their belief the settlement
agreement required the approval of all three of them before it would become binding.




                                             12.
The declarations again asserted the understanding among the three of them that Meghan
had the authority to make final decisions about the lawsuit.
       “The trial court’s ruling on a motion for reconsideration under section 1008 is
reviewed for an abuse of discretion.” (Jones, supra, 166 Cal.App.4th at p. 724.) Plaintiff
did not identify any new or different facts as the basis for the motion, or explain why any
such facts were not presented in opposition to the motion to enforce the settlement
agreement. The motion generally repeated the same arguments and facts presented in
opposition to the motion to enforce the settlement agreement. We conclude the trial court
did not abuse its discretion in denying the motion for reconsideration on both procedural
and substantive grounds.
                                      DISPOSITION
       The February 4, 2014, order granting defendant’s motion to enforce the settlement
pursuant to Code of Civil Procedure section 664.6 is modified to include a final
appealable judgment incorporating the terms of the written settlement agreement. The
judgment and the order denying plaintiff’s motion for reconsideration of that order are
affirmed. Defendant is entitled to its costs on appeal.




                                                                _____________________
                                                                             HILL, P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
SMITH, J.



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