Filed 1/29/16 Friends of Riverside’s Hills v. City of Riverside CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



FRIENDS OF RIVERSIDE’S HILLS,

         Plaintiff and Respondent,                                       E061821

v.                                                                       (Super.Ct.No. RIC446628)

CITY OF RIVERSIDE,                                                       OPINION

         Defendant;

ASHTON RANCH ESTATES, LLC,

         Real Party in Interest and Appellant.



         APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.

Reversed with directions.

         Lester & Cantrell, Mark S. Lester, David Cantrell, and Matthew J. Kraus for Real

Party in Interest and Appellant.

         Johnson & Sedlack, Raymond W. Johnson, Abigail A. Smith, Kimberly A. Foy,

and Kendall Holbrook for Plaintiff and Respondent.
       Plaintiff and respondent, Friends of Riverside’s Hills, brought a motion in the

superior court to enforce a written settlement agreement against real party in interest and

appellant, Ashton Ranch Estates, LLC. (Code Civ. Proc., § 664.6.)1 The settlement

agreement resolved disputes in two cases (Riverside County Superior Court case Nos.

446628 and 426544) respondent brought under the California Environmental Quality Act

(CEQA). (Pub. Resources Code, § 21000 et seq.) At the parties’ request, the superior

court in case No. 446628 entered an order retaining jurisdiction to enforce the terms of

the settlement agreement before entering a judgment of dismissal.

       Years later, the parties reached impasse on disputes over performance of the

settlement agreement and respondent filed a motion asking the superior court to construe

and enforce several specific provisions of the agreement. The superior court declined to

reach the issues respondent raised and instead entered a second judgment, which adopted

the terms of the settlement agreement. The judgment indicated the superior court would

“resolve issues of enforceability of particular terms of the Settlement Agreement post-

judgment, as such issues arise.” Instead, Ashton Ranch appealed the judgment.

       Ashton Ranch contends the superior court committed reversible error by entering

judgment based on settlement terms that: (1) obligate it to dedicate a public trail

easement on private property owned by third parties; (2) obligate it to obtain consent

from a third party to accept dedication of a trail head; (3) obligate the homeowner’s

association to work closely with a third party land conservancy to monitor open space


       1      Unlabeled statutory citations refer to the Code of Civil Procedure.
areas. Appellant also contends the superior court erred by entering judgment without first

determining whether the settlement terms were valid and enforceable.

       We decline to reach these issues because the superior court did not rule on them.

Instead, because the second judgment is a nullity, we reverse and remand for the superior

court to address those issues in the first instance.

                                               I

                               FACTUAL BACKGROUND

       The parties’ written settlement agreement, entered on June 15, 2006 between

respondent on one side and appellant and other real parties in interest2 on the other side,

settled two cases brought under CEQA challenging the adequacy of the environmental

review for two residential development projects in the City of Riverside, tract map 29628

and tract map 32270.

       As part of the settlement, the parties agreed to file the signed settlement agreement

with the superior court in case No. 446628 and “to submit themselves to the continuing

jurisdiction” of that court to enforce the provisions of the agreement. As permitted by

section 664.6, the parties filed a stipulation requesting that the superior court retain

jurisdiction to enforce the settlement agreement after dismissal of the two underlying

actions. The stipulation attached the signed settlement agreement as an exhibit. On June

23, 2006, the superior court entered an order agreeing to retain jurisdiction to enforce the


       2     The other real parties in interest named in the settlement agreement are
Hawarden Development Corporation, Executive Home Builders of Riverside, and A&T
Partners LLC.
settlement agreement. As required by the agreement, respondent then requested

dismissal with prejudice of case No. 446628. On August 16, 2006, the superior court

entered a judgment of dismissal in that case.3

       Seven and a half years later, on February 5, 2014, respondent returned to the

superior court and filed a motion to enforce the settlement agreement under section

664.6. Respondent contended the real parties in interest had failed, among other things,

to perform duties to: (1) dedicate a trail easement to the City of Riverside, (2) dedicate

an access point to the trail, and (3) work closely with the Riverside Land Conservancy to

maintain open space areas. Respondent asked the superior court to order the real parties

in interest to “substantially perform the duties required under the Settlement Agreement.”

Appellant contended in the superior court that the provisions of the settlement agreement

cannot be specifically enforced under section 3390 because the terms are indefinite or

performance is impossible or beyond their control.

       On March 7, 2014, the superior court held a hearing on the motion to enforce.

Near the outset of the hearing, the court announced, “I think that all you’re going to get is

a judgment. I’ll be happy to give you a judgment. But the court is not going to compel

specific performance.” The court explained, “We’ll argue over the form of the judgment

for several months. And once we finally get a judgment that I decide upon based upon


       3     At the time of the settlement, case No. 426544 was on appeal in this court
as case No. E040522. The parties agreed to seek dismissal of the appeal and the
underlying superior court action. The record does not establish that the parties achieved
those dismissals. We take judicial notice that we dismissed the appeal in case No.
E040522 on July 19, 2006. (Evid. Code, § 452, subd. (d).)
briefing and et cetera, we’ll have a judgment; and then [respondent] will attempt to

enforce that judgment, and then I will rule on it because I maintain jurisdiction.”

According to the superior court, respondent would “have to move for however they want

to enforce [the settlement agreement], and the court will rule once they have the

judgment. That’s how I see it playing out.” The superior court directed “plaintiff’s

counsel [to] prepare a judgment pursuant to CCP Section 664.6 in accordance with the

settlement agreement, . . . submit a copy to . . . defense counsel” and then “[s]ubmit it to

the court.” The superior court did not take evidence or hear argument concerning the

specific enforcement issues raised in respondent’s motion. Nor did the superior court

rule on those issues.

       On June 18, 2014, the superior court signed a judgment enforcing the settlement

agreement. The judgment provides: “Pursuant to the terms of Code of Civil Procedure

Section 664.6, the court hereby enters judgment pursuant to the terms of the Settlement

Agreement. The court retains jurisdiction over the parties to enforce the settlement

agreement.” The judgment reserved resolving “issues of enforceability of particular

terms of the Settlement Agreement post-judgment,” until “such issues arise.” On August

29, 2014, appellant filed a notice of appeal.

                                                II

                                       DISCUSSION

       Section 664.6 provides parties to a settlement agreement a summary procedure to

enforce the agreement. Before 1993, section 664.6 read 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.” In 1989, the Fourth District

Court of Appeal held this procedure could be invoked only while a case was still pending

in the trial court and that once the case had been dismissed, the trial court lacked subject

matter jurisdiction to enforce a settlement agreement unless the parties first moved to set

aside the dismissal under section 473. (Viejo Bancorp, Inc. v. Wood (1989) 217

Cal.App.3d 200, 207.)

       In response, the Legislature amended section 664.6 to, among other things, add the

following sentence: “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; see also Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439

(Wackeen) [discussing history and amendment of section 664.6].) “The effect of that

amendment is to provide courts with continuing jurisdiction over parties and their

litigation, for the purpose of enforcing their settlement agreement, despite a suit’s having

been dismissed after the execution of the agreement.” (Wackeen, supra, at p. 433.) To

obtain the superior court’s limited enforcement jurisdiction, “the request must be made

(1) during the pendency of the case, not after the case has been dismissed in its entirety,

(2) by the parties themselves, and (3) either in a writing signed by the parties or orally

before the court.” (Id. at p. 440.) We exercise de novo review in assessing the superior

court’s interpretation and application of section 664.6. (Wackeen, supra, at p. 437.)

       The parties in this case properly availed themselves of section 664.6 to ensure the

superior court retained jurisdiction. On June 15, 2006, the parties signed a settlement
agreement that specified “[t]he Parties agree to be bound by the terms of the Stipulated

Settlement Agreement and to submit themselves to the continuing jurisdiction of the

Court . . . to specifically enforce the provisions of this Settlement Agreement and the

order and judgment thereon.” On June 20, 2006, the parties submitted a stipulation to the

court, which provided: “The Parties agree that the Court shall reserve and retain full

jurisdiction, power, and authority to enable the Court upon noticed motion of Petitioners

or Real Parties in Interest, to make such further orders or directions to enforce, protect, or

preserve the rights of the Parties consistent with the terms of this Agreement. . . .

Petitioner and Real Parties in Interest agree to be bound by the terms of the Stipulated

Settlement and to submit themselves to the continuing jurisdiction of the Court in the

Action to specifically enforce the provisions of this Agreement.”4 The parties attached

the signed settlement agreement as an exhibit to the stipulation. On June 23, 2006, the

superior court entered an order stating it “shall retain jurisdiction over the settlement

agreement entered into between Petitioner Friends of Riverside’s Hills and Real Parties in



       4       Appellant argues for the first time in a supplemental letter brief that its
consent to continuing jurisdiction under section 664.6 was ineffective because counsel,
not the parties, signed the stipulation to continue jurisdiction. Appellant did not raise this
theory in its opening brief, and has therefore forfeited the contention. (Inyo Citizens for
Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 14, fn.2
[Fourth Dist., Div. Two].) In any event, the parties signed the settlement agreement,
which explicitly requests that the trial court retain jurisdiction, and submitted the
agreement with signatures as an exhibit to their stipulation to continue jurisdiction. That
submission is sufficient to satisfy the requirement that the parties themselves make the
request. (Wackeen, supra, 97 Cal.App.4th at p. 440.)
Interest Hawarden Development Corporation and Ashton Ranch Estates.” Only after the

superior court retained jurisdiction did the parties request and obtain dismissal of the

underlying lawsuit. As a result, the superior court had jurisdiction to enforce the

settlement agreement by resolving the disputes respondent raised in its motion filed on

February 5, 2014.

       As we noted in part I, however, the superior court did not address those disputes,

but instead entered a judgment purporting to adopt the terms of the settlement agreement.

We sought and obtained supplemental briefing from the parties on the issue whether the

judgment under review was a nullity because it constituted a second judgment. We have

considered the parties’ arguments and conclude the superior court did not have

jurisdiction to enter its judgment because it had already dismissed the case on August 16,

2006. That dismissal constituted entry of judgment. (See § 581d [“All dismissals

ordered by the court . . . shall constitute judgments and be effective for all purposes

. . .”].) By entering judgment, the superior court exhausted its jurisdiction over the

subject matter of the suit and the parties, except to the extent preserved by the order

retaining jurisdiction to enforce the settlement agreement. (See White v. White (1900)

130 Cal. 597, 599-600 [after entry of judgment “the jurisdiction of the court over the

subject matter of the suit and the parties was exhausted, unless preserved in the mode

authorized by statute”]; Barry v. Superior Court (1891) 91 Cal. 486, 488 [“The first

judgment was final, and the only authority of the court thereafter, in the matter concluded

thereby, was the power to enforce the judgment according to its terms”].) Accordingly,
we conclude the second judgment of the superior court was a nullity and therefore reverse

the judgment.

       Our conclusion does not imply the superior court lacked jurisdiction to decide

respondent’s motion to enforce the settlement agreement. On the contrary, section 664.6

explicitly allows the superior court to retain jurisdiction for the limited purpose of

enforcing the terms of the agreement until they have been satisfied. As we have

discussed, the parties properly invoked the superior court’s enforcement jurisdiction.

Thus, the superior court had the authority to resolve the disputes respondent raised by

motion. (See In re The Clergy Cases I (2010) 188 Cal.App.4th 1224, 1236.) However,

the judgment entered by the superior court did not address those disputes. On the

contrary, the superior court specifically reserved ruling on them. We conclude the issues

raised by respondent’s motion to enforce the settlement agreement are not ripe for

appellate review. (See Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th

308, 316 [Fourth Dist., Div. Two].) We therefore remand to the superior court for further

proceedings consistent with this opinion.

       On remand, the superior court shall hear and decide respondent’s motion to

enforce the settlement agreement, resolving the specific issues respondent raised in the

original motion concerning appellant’s performance of its obligations. The superior court

may hold a hearing to take evidence and entertain argument related to any such disputes.

(Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) It may also make factual findings

and legal rulings necessary to resolve them. (Ibid.) Though a postjudgment order

resolving those disputes will not take the form of a judgment, this court would
nevertheless have jurisdiction to hear any appeal that may arise from such an order.

(§ 904.1, subd. (a)(2); see also Osumi v. Sutton, supra, at p. 1360.)

                                             III

                                      DISPOSITION

       We reverse the judgment of the superior court and remand for further proceedings

consistent with this opinion.

       In the interests of justice, the parties will bear their respective costs on appeal.

(Cal. Rules of Court, rule 8.278(a)(5).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RAMIREZ
                                                                                       P. J.

We concur:


McKINSTER
                           J.


KING
                           J.
