Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M72763
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Appellants Virginia Robles (Virginia), Rose Robles Senko (Rose), John Robles, Jr. (John Jr.) and Lorraine Robles Delarosa (Lorraine) are four of the adult children of decedent John Robles, Sr. (John Sr.). In their wrongful death action, appellants assert that John Sr. died as the result of burns that he sustained when his wheelchair caught on fire due to defects in its manufacture and service by respondents GSMS, Inc. (GSMS) and Pride Mobility Products Corporation (Pride Mobility). Appellants also claim that John Sr.’s death was caused by the inadequate smoke detectors provided by respondents Louis A. Nunes and Michael D. Cling, partners in 1118 Parkside (collectively, Parkside), the owners of the apartment building where John Sr. died.
On the day that jury selection was to begin in the trial of this matter, January 8, 2007, the parties reached a confidential settlement of all claims after engaging in settlement negotiations presided over by the trial judge, the Honorable Kay T. Kingsley. Appellants subsequently refused to execute the settlement agreement and respondents brought a motion under Code of Civil Procedure section 664.6 to enforce the settlement. Judge Kingsley granted the motion and a judgment of dismissal was entered on April 4, 2008. Appellants then obtained new counsel and brought a motion to vacate the judgment on the grounds that Judge Kingsley had coerced appellants into agreeing to the settlement by threatening to sanction Rose and Lorraine due to their failure to appear at trial on January 8, 2007. The Honorable Timothy S. Buckley denied the motion, finding that appellants’ assent to the settlement was voluntary and independent of the potential sanctions for failure to appear.
All statutory references hereafter are to the Code of Civil Procedure.
Retired Associate Justice of the Court of Appeal, Fifth District, sitting by assignment.
On appeal from the judgment of dismissal, appellants’ chief argument is that the settlement agreement is unenforceable because Judge Kingsley coerced the settlement by threatening to sanction Rose and Lorraine. For the reasons stated below, we find that substantial evidence supports Judge Kingsley’s order granting the section 664.6 motion to enforce the settlement and Justice Buckley did not abuse his discretion in denying the motion to vacate the judgment. Therefore, we will affirm the judgment of dismissal. Having reached that conclusion, we will deny as moot respondents’ motion to dismiss the appeal on the ground that appellants accepted a benefit of the settlement when their former attorney’s lien was paid from the settlement proceeds.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
The record reflects that at the time of trial on January 8, 2007, the operative complaint was the third amended complaint filed on April 14, 2006 (the complaint). The plaintiffs included John Sr.’s widow, Frances De La Rosa Robles (Frances); his adult children, Virginia, Rose, Lorraine, John Jr., Albert Robles (Albert), and Jerry Robles (Jerry); and his minor children, Maria Luisa Robles (Maria Luisa) and Juan Enrique Robles. The defendants included GSMS, Pride Mobility, and Parkside.
The claim of Juan Enrique Robles was dismissed in exchange for a waiver of costs on July 28, 2006.
The allegations in the complaint included the claim that defendants GSMS, Inc. and Pride Mobility negligently manufactured and maintained the defective wheelchair that caused John Sr.’s death on or about April 1, 2004. As to defendant Parkside, plaintiffs claimed that the dangerous and defective condition of the smoke alarms on their property was a proximate cause of John Sr.’s death. The complaint also included a cause of action alleging that defendants were liable for the personal injuries and bystander emotional distress that plaintiff Virginia suffered during her attempt to rescue John Sr. from his burning wheelchair. On November 16, 2006, the trial court granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages.
B. The Settlement Agreement
On January 8, 2007, the day set for jury selection in the trial of this matter, the parties agreed that the trial judge, Judge Kingsley, could act as settlement judge “and discuss a settlement offer that’s been made.” Judge Kingsley presided over the ensuing settlement negotiations and, after a settlement was reached, made a record of the settlement agreement. Plaintiffs Rose and Lorraine, two of John Sr.’s adult children, were not present, although it was believed that each had received a notice to appear at trial, pursuant to section 1987, subdivision (b). For that reason the trial court spoke with Rose and Lorraine by telephone.
At oral argument, appellants’ counsel asserted that neither Rose nor Lorraine was served with a notice to appear. Counsel for respondents stated that although counsel for all parties believed, at the time of trial on January 8, 2007, that notices to appear had been served on Rose and Lorraine, they have been unable to find copies of the notices to appear.
The following record of the settlement agreement was made in camera on January 8, 2007, in the presence of the parties (including the telephonic appearances of Rose and Lorraine) and their counsel, but has since been largely disclosed in the parties’ appellate briefs. The first telephonic colloquy was between Rose and Judge Kingsley:
“THE COURT: Hi. This is Judge Kingsley.
“[ROSE]: Hi, Judge Kingsley. I guess the phone cut off on us earlier, and I didn’t get a chance to hear you out.
“THE COURT: I’m sorry too. And we tried to get back to you. [¶] What I wanted to state first is that we’re in my chambers right now on the record. We have a court reporter here making a record. All the defense counsel are here, and your attorney, Mr. Wills, is here. [¶] We, earlier, had discussions with your siblings and your mother, and I [did have] a partial conversation with you on the phone before we were cut off about the agreement for me to act as a settlement judge here and to discuss a settlement offer that’s been made. [¶] And it’s my understanding that, in subsequent phone calls that you’ve had with Mr. Wills and your other family members, that you are now in agreement to accepting the $1 million group offer on behalf of all the claims here, both, the wrongful death claims and the personal injury claims, that you are in agreement with that. Is that true?
“[ROSE]: Well, I mean, you’re looking for a yes-or-no answer; is that correct?
“THE COURT: Yes.
“[ROSE]: I could be dismissed from the case, my presence not being there, Judge?
“THE COURT: That’s another issue. Yes, you are in danger of having your claim dismissed for your failure to appear today.
“[ROSE]: Right. That’s because the majority have decided to settle, and I’m not there to agree or disagree. Is that the basis, Your Honor?
“THE COURT: It’s more than that. It’s not being here to agree or disagree. It’s that you’re required by code, since a notice to appear was sent to you. It’s the same as if it was a subpoena ordering you to appear in court, and your failure to do so subjects you to potential penalties.
“[ROSE]: I understand.
“THE COURT: Could be criminal contempt. It could be dismissal of your claim. It could be sanctions. Essentially, those are the sanctions that appear appropriate to me for somebody’s failure to come to their trial under these circumstances.
“[ROSE]: I understand. I just thought today was court proceedings, and we were starting to jury select. And I had a circumstance that didn’t allow me to be there this morning, and my intention was to be there. So I was just wondering if I was going to get thrown off the case. I was worried about that. [¶] And, as far as the agreement with my family, like I told my family, I agree--I disagree, but I agree to what they decide they want to do.
“THE COURT: So nobody in a settlement is ever 100-percent happy. That’s probably what a settlement is all about. [¶] You are agreeing to accept the settlement along with your siblings and your mother? You are agreeing to go along with the group’s decision to accept the settlement? [¶]... [¶]
“[ROSE]: You know, like I said, I’m agreeing to what they’re doing. I’m just not agreeing to it. I’m agreeing with my family.
“THE COURT: Because I want a clear record. I know you’re not happy with going along with this. But when somebody says I’m agreeing, but I’m not agreeing, later when somebody reads that on paper they say, what did the person mean? I think it means I’m not happy. I would want it to be a different amount of money or something else different, but I will go along and accept it. Is that what you’re saying?
“[ROSE]: That’s what I’m saying, Your Honor.
“THE COURT: Okay. Very good. Then, with that, I will accept that as a representation of acceptance, and, on that basis, not pursue further sanctions for your failure to appear. Okay?
“[ROSE]: Okay, Your Honor.
“THE COURT: What may be left is, if the plaintiffs can’t agree how to divide up the money, I may have to have a hearing to decide how it’s divided up. Do you understand that?
“[ROSE]: Yes.”
The second telephonic colloquy took place between Lorraine and Judge Kingsley:
“THE COURT: Is this Lorraine?
“[LORRAINE]: Yes.
“THE COURT: Hi Lorraine. This is Judge Kingsley again, and I have Mr. Wills and the defense counsel and a court reporter present so we’re making a record of the agreement. [¶] And we just have a conversation with you. I know you’re not completely happy with it. But you are willing to go along with the rest of the family and agree to settle the case for a million dollars; is that correct?
“[LORRAINE]: Yes.
“THE COURT: Okay. Very good, Lorraine.... [¶]... [¶] Okay. I will then not be pursuing any sanctions’ motions regarding your failure to appear today. I want to let you know that.
“[LORRAINE]: Okay.
“THE COURT: And this settlement is independent of that. [¶] Anything else?
“MR. WILLS: No. Just, Lorraine, we will have a hearing in front of Judge Kingsley probably within the next couple of weeks about how it would be divided up and allocated....”
After Rose and Lorraine had appeared telephonically and placed their agreement to the settlement on the record, the trial court addressed the four plaintiffs who were present during the in camera proceedings, including John Sr.’s widow, Frances, and three of his adult children, Albert, Virginia, and John Jr. Each of these plaintiffs expressly stated that they agreed to accept the settlement offers of defendants Pride Mobility and Parkside, and that they also agreed to all of the terms of the settlement agreement, including the confidentiality provision.
Additionally, plaintiffs’ counsel, Thomas Wills, represented to the court that the guardian ad litem for the minor plaintiff, John Sr.’s daughter Maria Luisa, had authorized him to enter into the settlement agreement on her behalf. Wills also represented that the other plaintiff who was not present, John Sr.’s adult son Jerry, had agreed to the settlement.
After the plaintiffs’ consent to the settlement agreement was placed on the record on January 8, 2007, defendants Pride Mobility and Parksideprovided a general release and confidentiality agreement to plaintiffs’ counsel for plaintiffs’ signatures. However, by February 2, 2007, only Maria Luisa (through her guardian ad litem) had signed the agreement, and Rose had indicated that she and Lorraine would refuse to sign it. In the meantime, on January 25, 2007, plaintiffs’ attorney Thomas Wills filed a motion for an order permitting him to withdraw as plaintiffs’ attorney of record and a notice of his attorney fees’ lien.
At the hearing on his motion to withdraw, held on February 22, 2007, attorney Wills stated that the circumstances that led to his motion to withdraw as plaintiffs’ attorney of record arose from the settlement negotiated on January 8, 2007: “As the court is aware, we arranged a settlement on the morning of trial. Two of the plaintiffs were not present physically, as they had been ordered to be. [¶] There were discussions by telephone with them by one point. One represented that she would be here by 1:00 p.m. that afternoon. And 1:00 p.m. arrived and plaintiff was not present. [¶] We were ready to proceed with trial. The morning of trial the court conducted settlement discussions, which is, of course, not unusual in a trial situation on the morning of trial. [¶] And settlement discussions were conducted, held, culminating in the record settlement before the court with four plaintiffs, who were present, who agreed to the settlement. Followed by discussions with each of the absent plaintiffs by telephone, following an initial conversation by me, in which it was represented that they would agree to the settlement. [¶] Thereafter, the settlement papers were forwarded to me. [I] contacted each of the plaintiffs about signing them. Some of the plaintiffs agreed to sign, ... one represented to me telephonically that he was going along with the settlement, but did not appear to sign the papers. [¶] Two other of the plaintiffs have signed the settlement agreement and so there was a position of actual conflict, ... some of the plaintiffs reneging on what they had agreed to on the record. But also in the actual disagreement among the plaintiffs who were going to go forward with the settlement and who did not want to go forward with the settlement.” Judge Kingsley granted attorney Wills’ motion to withdraw as plaintiffs’ attorney of record on February 22, 2007.
During the hearing on Wills’ motion to withdraw, Judge Kingsley inquired as to plaintiffs’ efforts to find another attorney to represent them in this matter. Rose stated that she had contacted five attorneys, but none would agree to take the case. Judge Kingsley advised plaintiffs that the matter remained set for a hearing on defendants’ motion to enforce the settlement on February 28, 2007.
C. The Section 664.6 Motion to Enforce the Settlement
Defendant Pride Mobility filed a motion to enforce the settlement under section 664.6 on February 2, 2007. Pride Mobility argued that the settlement was enforceable as to all plaintiffs because they had personally agreed to the settlement before the court during the judicially supervised proceeding held on January 8, 2007. The motion did not include a recitation of the terms of the confidential settlement agreement, which Pride Mobility stated were disclosed in documents filed with its motion to seal. Defendant Parkside filed a joinder in the motion to enforce settlement, as did plaintiffs Maria Luisa and Jerry through their guardians ad litem.
Section 664.6 provides in pertinent part, “If parties to pending litigation stipulate, ... 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 documents that Pride Mobility apparently sought to file under seal in conjunction with its motion to enforce settlement were included in the unsealed clerk’s transcript filed with the record on appeal in this court.
While counsel for GSMS appeared at the hearing on the motion to enforce the settlement, the record on appeal does not indicate that GSMS filed a joinder in the motion.
Jerry’s joinder in the motion to enforce settlement, filed by his guardian ad litem Susan Matcham, states that he was not present in court on January 8, 2007, because “he was incarcerated in Tulare County [and] is a diagnosed schizophrenic who has been appointed a conservator in the past.” The joinder further states that Susan Matcham “representing Jerry Robles signed” the settlement agreement and “now wishes to see the agreements and enforced and the settlement proceeds distributed.”
On the date originally set for the hearing on the motion, February 28, 2007, plaintiffs Lorraine, Rose, Albert and John Jr. requested a continuance to enable them to obtain new counsel. Judge Kingsley asked them what steps they had taken to obtain new counsel since the last hearing. Virginia stated that she had telephoned three attorneys whose names she could not recall. Frances admitted that she had done nothing. Lorraine had an appointment with an attorney in Fresno the day before the hearing, but the attorney had refused to take the case. Rose had called three to five attorneys, but was unable to get any appointments before the hearing. She did have an appointment with an attorney in Merced the following week. Albert had contacted a law firm in San Jose and was also seeking the assistance of “celebrity attorneys.”
Judge Kingsley noted that plaintiffs had previously hired an attorney, David Hollingsworth, to review the case and to give them his opinion. However, there was no indication that Hollingsworth intended to represent plaintiffs and the record reflects that at the hearing held the week before, on February 22, 2007, regarding attorney Wills’ motion to withdraw, Hollingsworth had met with plaintiffs during a break in the hearing and had recommended that they accept the settlement. Judge Kingsley acknowledged that plaintiffs would have difficulty finding new counsel due to the conflict between the plaintiffs regarding settlement, and granted a four-week continuance, to March 28, 2007, to allow plaintiffs more time to obtain an attorney.
The unrepresented plaintiffs who appeared at the March 28, 2007 hearing before Judge Kingsley on the motion to enforce settlement included Frances, Virginia, Rose, Lorraine, John, Jr. and Albert. Plaintiff Maria Luisa was represented by counsel through her guardian ad litem and plaintiff Jerry also appeared through his guardian ad litem. At the outset of the hearing, the trial court considered the request of the unrepresented plaintiffs for another continuance of the hearing on the motion to enforce settlement to allow them further time to obtain an attorney. Rose stated that they had contacted 20 attorneys, but none would take the case. The court denied the request for a continuance on the ground that the unrepresented plaintiffs had been given nearly three months to find another attorney, and there was no good cause for a further continuance.
Although the unrepresented plaintiffs had not filed written opposition to the motion to enforce settlement, the trial court allowed them to make oral arguments in opposition to the motion. Virginia stated that she did not “feel like I want to settle this matter at this point in time.” She also asserted that she did not have a “complete understanding of what was happening at the moment, you know, of the process.”
Frances advised the trial court that she was “just neutral.” Rose stated that she opposed the motion to enforce settlement because on “the day of January 8, 2007, ... I was not properly represented, and I did not have an opportunity to be involved into the settlement mediation process.” Rose further asserted that she did not know the “contents of the settlement agreement.”
Lorraine stated that during the telephone call of January 8, 2007, she was not told “any conditions of what was going to be sealed and what wasn’t... and [she] would like to know what was said in the conference room.” John Jr. explained that he opposed the settlement because he did not understand that a settlement was going to take place on January 8, 2007 and because defendants were not taking responsibility for “what happened to people like my dad.”
Albert had a different reason for opposing the motion to enforce settlement. He stated that his opposition was based on his belief that defendants should “pay for those forensics” and his objection to “releasing our forensics that we had purchased through our settlement fees.” When Judge Kingsley asked Albert if had felt badgered or intimidated by anything she had done during settlement negotiations, Albert said no.
None of the plaintiffs stated that they objected to the motion to enforce settlement on the ground that Judge Kingsley had coerced them into settling by threatening to sanction Rose and Lorraine or because they were unaware of the confidentiality provision.
Plaintiffs’ former attorney Thomas Wills provided the trial court with his recollection of the proceedings of January 8, 2007: “There were multiple phone calls and there were representations made to the Court that [Rose] was on her way over here that day. And no one said stay by your phone at home when there was a cell phone, and there, in fact, had been conversations on that cell phone. The settlement was put on the record. [T]he transcripts clearly reflect that the settlement was put on the record and the parties agreed to it. [¶] [T]he discussion that was made about forensics not being paid for was specifically put on the record and discussed with the Court in the jury room back there with the parties present. And as I said before and I will say it again, there is no right to the mechanical improvements that were involved. Those belong to the experts.... We had lengthy discussions that morning back in chambers with Your Honor. They were not all on the record. As a matter of fact, most of the preliminary discussions were not on the record. And the Court went over the terms of the settlement agreement with each of the plaintiffs; went over the terms of the settlement on the phone with the plaintiffs, and then it was placed on the record.”
After hearing argument, Judge Kingsley stated her own recollection of the proceedings of January 8, 2007: “[A]s I was getting ready to select a jury... the parties, in particular the plaintiffs, wanted to discuss settlement with me as the trial judge who had heard certain motions in limine.... But [there] was a desire to have a discussion, and there was an agreement. And I remember talking to each of you as to whether you agreed that I could be brought into this discussion. I do know that in our discussions I went over and we discussed many questions that you had, including your interest in getting more money on the settlement than what was offered... connected with the costs of litigation, the amount you’d spent on your attorney and for hiring experts, what you’re referring to as the forensics.... In any event, none of the information that I’m aware of that was developed through what you’re calling the forensics belonged to you in that way. If it belonged to anybody, it belongs to the experts who developed it.... I remember trying to explain some of those things to you.”
Judge Kingsley also stated that “[i]n terms of Rose and Lorraine not being present [on January 8, 2007], not knowing whether they had be to here or that we were having a settlement that day, certainly in terms of my understanding of the appropriate procedural documents that had been prepared and sent by opposing counsel, in terms of notices to appear as of the first day of trial, you were required to be here for the case. That had really nothing to do with being here for a settlement conference. So the idea that we were only going to be picking a jury, we were only going to be starting the case, I didn’t need to be here, was a little bit incorrect. You needed to be here, and you were required to be here. I remember explaining some of the implications of your not being here and the potential of proceeding in contempt that could be initiated for that failure. I don’t believe anything was said that you were in fact already found to be in contempt.”
Judge Kingsley continued, “In any event, the discussion that was had on January 8th [, 2007, ] was a settlement of all claims, [Virginia’s] separate PI, personal injury claim, as well as the claim that applies to each and every one of you on the wrongful death claim. [¶] [A]ppropriate procedures were followed, and under the law, I find that I have no alternative but to grant the motion under [section] 664.6 to enforce the settlement.”
After granting the motion, Judge Kingsley commented that her rulings on the motions in limine had not been an indication that plaintiffs were going to win at trial but were only a threshold determination of the evidence the jury was going to hear. She further stated that there were risks for the plaintiffs in going to trial, and “I think that’s one of the reasons that the people that advised you, including me, that this was a very good settlement for you to accept was that there were risks that you could lose the case outright.”
The order granting defendants’ motion to enforce settlement was filed on April 30, 2007. The order states, “1. The specific terms of the settlement between the parties remain confidential; and [¶] 2. The settlement funds are to be paid by the parties in the respective amounts agreed upon [and] are to be paid to the Clerk of the Superior Court, County of Monterey, and the Clerk of the Court is to deposit all such settlement funds in one or more interest-bearing, federally insured accounts to be distributed only upon further order of this Court; and [¶] 3. Upon completion of the hearing calendared on May 1, 2007, and order of this Court allocating the settlement funds among the plaintiffs and lien holders, the Clerk of the Court shall forthwith sign the General Release and Confidentiality Agreement on behalf of each plaintiff who has not theretofore signed said General Release and Confidentiality Agreement and forthwith enter a judgment of dismissal of the complaint with prejudice in favor of all defendants, each side to bear his/her/its own costs and attorneys fees.”
The minute order of May 1, 2007, indicates that the trial court approved the allocation of the settlement funds that the plaintiffs had agreed upon and that the court retained jurisdiction over the settlement. Also on May 1, 2007, the trial court entered an order directing payment of the lien of Thomas Wills, former plaintiffs’ attorney, for attorney fees and costs in the amount of $486,577.34.
On June 22, 2007, an order was filed regarding the allocation of settlement proceeds, which states the amount that each plaintiff is to receive. The record reflects that as of January 4, 2008, the clerk of the court had made the following disbursements of settlement proceeds: $486,577.34 to Thomas Wills’ law firm in satisfaction of his lien; $2,750 to the law firm of Rucka, O’Boyle, Lombardo and McKenna, which represented Maria Luisa; $3,350 to Susan Matcham, who represented the Jerry Robles Special Needs Trust; and $72,169.97 to Albert. The record is unclear as to whether the settlement funds allocated to the remaining plaintiffs had been disbursed to them as of January 4, 2008.
The record reflects that the June 22, 2007 order regarding the allocation of settlement proceeds was filed as a “confidential” document in the trial court. The order was included in the clerk’s transcript filed with the record on appeal in this court and was not filed under seal here.
The judgment of dismissal, which dismissed plaintiffs’ complaint and all causes of action with prejudice, was filed on April 4, 2008. A notice of entry of the judgment of dismissal was filed on June 16, 2008.
D. The Motion to Vacate the Judgment
On June 6, 2008, plaintiffs Rose, Virginia, Lorraine and John Jr., now represented by attorney Joseph W. Carcione, Jr., filed a motion to vacate judgment on the ground that plaintiffs’ “ ‘consent’ to said proposed settlement was obtained through duress, coercion, fraud and/or mistake.”
Plaintiffs specifically asserted that “the trial court itself exerted undue pressure upon the plaintiffs to accept an ‘offer’ that they had never authorized and did not want or accept. The trial court applied undue pressure through the implied threat of ‘sanctions, ’ and even ‘dismissal’ directed towards two of the plaintiffs because of their absence from a ‘settlement conference’ that morning. That pressure was particularly acute because that conference had been arranged that very morning by plaintiffs’ former attorney, and plaintiffs did not even know that it was going to be held.” Plaintiffs further asserted that prior to trial they had signed a letter from their attorney acknowledging the risks of rejecting a proposed settlement and “[h]ence, Rose and Lorraine, did not expect to be hastily summoned to respond to a telephone call from an ‘upset’ and ‘angry’ trial judge on the morning of the trial because they were unable to personally appear that morning to ‘accept’ the settlement or be subject to having their case ‘dismissed’ or suffer other ‘sanctions.’ The trial judge only relieved the plaintiffs of the pressure of a possible ‘dismissal’ or other ‘sanctions, ’ when the plaintiffs’ agreed to the settlement.”
Additionally, plaintiffs complained that Judge Kingsley had not allowed them sufficient time to obtain counsel to properly oppose the motion to enforce settlement. They also argued that the judgment of dismissal should be vacated on the ground that Judge Kingsley’s support of the candidacy for the office of superior court judge of plaintiffs’ former counsel, Thomas Wills, subjected her to disqualification in this matter.
Pride Mobility’s opposition to the motion to vacate the judgment included its argument that plaintiffs had failed to state any valid grounds for vacating the judgment of dismissal and, in any event, the motion constituted an untimely motion for reconsideration of the motion to enforce settlement. Pride Mobility also disputed plaintiffs’ assertion that Judge Kingsley had improperly coerced a settlement. According to Pride Mobility, “Judge Kingsley made it very clear during the course of settlement discussions that the sanctions were a separate issue from settlement. Furthermore, each of the provisions of the settlement was explained by the Court and Plaintiffs’ counsel prior to [plaintiffs] agreeing to settle the case.” Pride Mobility also pointed out that, even assuming that Judge Kingsley should have been disqualified under section 170.1, section 170.4, subdivision (a)(6) allows a disqualified judge to conduct a settlement conference.
GSMS filed a joinder in Pride Mobility’s opposition to the motion to vacate the judgment.
Defendant Parkside filed opposition to the motion to vacate the judgment arguing that the settlement was enforceable because the plaintiffs had agreed on the record to settle their claims for $1 million from Pride Mobility and $15,000 from Parkside. Parkside asserted that the “only pressure that was applied in this case was the pressure that plaintiffs put on themselves, i.e., [Rose and Lorraine], by their complete and willful failure to attend trial.” Parkside also rejected plaintiffs’ contentions that they had not been allowed sufficient time to obtain new counsel to oppose the motion to enforce settlement and that Judge Kingsley should have been disqualified, noting that Judge Kingsley’s public endorsement of Thomas Wills as a candidate for the office of superior court judge had occurred after this case was resolved.
In their reply, plaintiffs contended that the trial court had the inherent power to vacate a judgment entered upon an agreement that was obtained through duress. Alternatively, plaintiffs maintained that the judgment could be vacated under section 473, subdivision (b), on the ground that they were entitled to relief from the judgment of dismissal because it had been taken against them through duress, coercion, or mistake. Plaintiffs’ reply was supported by the declarations of Rose and Lorraine.
Lorraine’s declaration states in part, “[W]hen the Judge spoke to me on the telephone on January, 8, 2007, and because she seemed angry at me for not being there, I felt that she would dismiss my case, or sanction me if I did not agree to accept the same settlement offer. She also made it seem like this is what my family wanted, so I should go along with it. They told me that even Rose had agreed to the settlement. So, even though I never wanted to accept that settlement offer, I said I did on that morning because I was afraid if I did not accept the offer that my case would be dismissed or I would be sanctioned, like the Judge suggested.”
Rose’s declaration similarly states, “[W]hen the judge spoke to me on the telephone on January 8, 2007, and because she was angry at me for not being there, I felt that she would dismiss my case, or sanction me, just like Mr. Wills had told me, if I did not agree to accept that same settlement offer. The Judge also made it seem like this was what my family wanted, so I should go along with it. So, even though I never wanted to accept that settlement offer, I said I did on that morning because I was afraid if I did not accept the offer that my case would be dismissed or I would be sanctioned or I would be found in contempt of court and be sent to jail. The Judge, like Mr. Wills, made it clear to me that all of those things could happen to me.”
E. Order Denying the Motion to Vacate the Judgment
Plaintiffs’ motion to vacate the judgment was heard by Justice Buckley on July 24, 2008. At the beginning of the hearing, Justice Buckley inquired as to the timeliness of the motion. Plaintiffs’ counsel asserted that the motion was timely filed within six months of the entry of the judgment of dismissal on April 4, 2008, pursuant to section 473. Justice Buckley next determined that the court had the authority under section 473 to hear the motion to vacate the judgment on the ground of duress.
Section 473, subdivision (b) provides in pertinent 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 proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Regarding the merits, Justice Buckley noted that the only issue was whether the agreement of Rose and Lorraine to the settlement had been obtained through duress applied by Judge Kingsley, since no other plaintiff had asserted duress. Justice Buckley then made the following findings regarding Rose’s agreement to the settlement: “[I]t is somewhat unfortunate that the issue of sanctions was brought up in the discussion at all with the settlement conference. I will also agree that there could not have been any realistic shot of dismissing the case at that stage on the first non-appearance. It also appears to me, though, that after going through the transcript... and I do have to read it carefully as we all did, that the issue of dismissal was first actually brought up by Rose in the discussion.... [¶]... [¶] It’s clear to me in so far as Rose is concerned that Rose’s agreement to accept the settlement was made independent of any sanctions. I do not feel this was duress involved with the acceptance of the offer or settlement by defendant. I will say it’s somewhat of a close issue, but in my discretion, I don’t feel that [it] settled on the basis of threat of sanctions. Whether or not she was happy with the settlement, I think that’s very clear, she never was, but again, I don’t think that part is required in the acceptance of a settlement that both sides be happy.”
Regarding Lorraine, Justice Buckley found that Judge Kingsley’s comment, after Lorraine had stated her agreement to the settlement, that she would not be pursuing any sanction for Lorraine’s non-appearance was merely an indication that the sanctions issue “was no longer on the table” and did not show that Lorraine had agreed under duress.
Justice Buckley then denied the motion to vacate the judgment, stating, “I do not see a basis to vacate the judgment and dismissal in this case. I don’t feel it appropriate to set aside the settlement.” The order denying plaintiffs’ motion to vacate the judgment was filed on August 26, 2008. A notice of appeal from the April 4, 2008 judgment of dismissal was filed on August 11, 2008, by plaintiffs Virginia, Rose, Lorraine and John Jr.
We find that the notice of appeal was timely filed within 90 days after the motion to vacate the judgment was filed on June 6, 2008, pursuant to California Rules of Court, rule 8.108(c)(2).
III. DISCUSSION
The chief argument on appeal of plaintiffs Rose, Lorraine, Virginia and John Jr. (hereafter, appellants) is that the motion to vacate the judgment should have been granted on the grounds that the settlement agreement was coerced by Judge Kingsley, who erred in granting the motion to enforce settlement. We will first consider the claim of appellants Rose and Lorraine that their agreement to the settlement was coerced because Judge Kingsley threatened to impose sanctions on them for their failure to appear at trial if they did not agree to the settlement. As we will discuss, the other two appellants, Virginia and John Jr., have made no express claim that their agreement to the settlement was coerced by Judge Kingsley.
We note that this court’s opinion in the appeal from the related malpractice action, which was brought by Virginia and other Robles family members against their former attorneys, Thomas Wills and C. Denise Benoit, and their retained expert, Purush Chalilpoyil, states, “According to the [malpractice] complaint, instead of retaining a new expert, Wills decided to settle the Robles v. GSMS case, and he obtained the consent of some of the plaintiffs. Other plaintiffs, including respondents in this case, were reluctant; but Wills ‘coerced, forced, and/or wrongly pressured the plaintiffs herein to tell the court that they “agreed” to settle that entire case’ for $1 million. Respondents thereafter refused to accept any of the settlement proceeds.” (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 570-571.)
We observe that the coercion claim of Rose and Lorraine was raised only in the motion to vacate the judgment, and not in their oral opposition to the motion to enforce settlement. Since appellants’ notice of appeal and opening brief states only that their appeal is from the April 4, 2008 judgment of dismissal entered on the order granting the motion to enforce settlement, we must determine whether the coercion claim is cognizable on appeal.
A. The Motion to Vacate the Judgment
1. Appealability
In the proceedings below, appellants’ counsel clarified that the motion to vacate the judgment was made under section 473. It is well established that an order denying a section 473 motion to vacate the judgment is an appealable order. (Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 5; Burnete v. Las Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1265-1266.) It is also the general rule that an appellate court lacks jurisdiction to review a separately appealable postjudgment order where, as here, the notice of appeal omits any reference to that order. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-46; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [notice of appeal from a judgment alone does not encompass separately appealable orders].)
However, we will consider the coercion claim made by Rose and Lorraine because it is arguable that the motion to vacate the judgment was based on the nonstatutory grounds of coercion and duress, and therefore the order denying the motion to vacate the judgment is not separately appealable. (See, e.g., Carr v. Kamins (2007) 151 Cal.App.4th 929, 933; Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203.)
2. Standard of Review
The standard of review that applies to an order denying a motion to vacate a judgment is abuse of discretion: “[A] motion in the trial court to set aside a judgment is addressed to its sound discretion and will not be reversed without a clear showing of abuse of that discretion. [Citations.] [A]ny factual conflicts in the evidence, whether presented by live testimony or by affidavit, must be resolved in favor of the prevailing party below. [Citation.]” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1077 (Phillipine Export).)
3. Analysis
At the outset, we note that plaintiffs have cited no California authority for the proposition that a judgment entered upon an order enforcing a settlement may be vacated where the trial court coerced the settlement. However, the general rule in California is that “[a] bargain may be avoided on grounds of physical coercion, undue influence, or on the basis of an improper threat, such as a threat constituting blackmail. The Restatement of Contracts defines such threats very broadly under the heading of economic compulsion. Impermissible threats include bad faith threatened use of civil process; threats which are a breach of the duty of good faith and fair dealing under a contract with the recipient; threats which would harm the recipient without significantly benefitting the party making the threat; or threats where ‘what is threatened is otherwise a use of power for illegitimate ends.’ (Rest.2d Contracts, § 176, pp. 481-482.)” (Philippine Export, supra, 218 Cal.App.3d at p. 1077.)
It has also been stated in other contexts that a trial court has no power to compel a litigant to settle a case. (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 72 [appeal of sanctions order against attorneys for conduct at settlement conferences]; Mezzetti v. Superior Court (1979) 94 Cal.App.3d 987, 991-992 (Mezzetti)[disqualified judge not precluded from holding settlement conference]; Rosenfield v. Vosper (1941) 45 Cal.App.2d 365, 371 [appeal of judgment after court trial].) On the other hand, a judge may properly participate in settlement discussions, for several reasons. First, “ ‘judicial participation often creates a climate that expedites productive negotiations for settlement.’ ” (Mezzetti, supra, 94 Cal.App.3d at p. 992.) Second, “ ‘the judge contributes the views of an outsider who usually enjoys considerable prestige....’ ” (Ibid.) Third, the judge may “ ‘express tentatively his [or her] appraisal of the settlement value of the case....’ ” (Ibid.) Finally, “ ‘a settlement conference presided over by an impartial judge often constitutes a practical substitute for a trial, especially when the parties consider that a matter of principle is at stake and they insist on having their “day in court.” ’ ” (Ibid.)
In the present case, Justice Buckley rejected Rose’s claim that her agreement to the settlement was coerced because Judge Kingsley threatened to impose sanctions on her for her failure to appear at trial if she did not agree to the settlement. Justice Buckley found that it was Rose, not Judge Kingsley, who initiated the discussion of possible sanctions for failure to appear. Justice Buckley also found that the record of the settlement proceedings showed that Rose had agreed to the settlement “independent of any sanctions.” Justice Buckley therefore concluded, as to Rose, that there was no duress involved in her acceptance of defendants’ settlement offer.
We believe that the reporter’s transcript of Judge Kingsley’s January 8, 2007 telephone conversation with Rose supports Justice Buckley’s findings. It is clear from the transcript that Rose initiated the dialog regarding possible sanctions for her failure to appear at trial, as emphasized below:
“[ROSE]: Hi, Judge Kingsley. I guess the phone cut off on us earlier, and I didn’t get a chance to hear you out.
“THE COURT: I’m sorry too. And we tried to get back to you. [¶]... [¶] [W]e’re in my chambers right now on the record.... [¶]... [¶] And it’s my understanding that, in subsequent phone calls that you’ve had with Mr. Wills and your other family members, that you are now in agreement to accepting the $1 million group offer on behalf of all the claims here, both, the wrongful death claims and the personal injury claims, that you are in agreement with that. Is that true?
“[ROSE]: Well, I mean, you’re looking for a yes-or-no answer; is that correct?
“THE COURT: Yes.
“[ROSE]: I could be dismissed from the case, my presence not being there, Judge?
“THE COURT: That’s another issue. Yes, you are in danger of having your claim dismissed for your failure to appear today.”
We also find that the January 8, 2007 transcript, as excerpted below with added emphasis, supports Justice Buckley’s finding that while Rose may not have been completely happy with the settlement, she agreed on the record that she would “go along with the group’s decision to accept the settlement.”
“[ROSE]: I just thought today was court proceedings, and we were starting to jury select. And I had a circumstance that didn’t allow me to be there this morning, and my intention was to be there. So I was just wondering if I was going to get thrown off the case. I was worried about that. [¶] And, as far as the agreement with my family, like I told my family, I agree--I disagree, but I agree to what they decide they want to do.
“THE COURT: So nobody in a settlement is ever 100-percent happy. That’s probably what a settlement is all about. [¶] You are agreeing to accept the settlement along with your siblings and your mother? You are agreeing to go along with the group’s decision to accept the settlement? [¶]... [¶]
“[ROSE]: You know, like I said, I’m agreeing to what they’re doing. I’m just not agreeing to it. I’m agreeing with my family.
“THE COURT: Because I want a clear record. I know you’re not happy with going along with this. But when somebody says I’m agreeing, but I’m not agreeing, later when somebody reads that on paper they say, what did the person mean? I think it means I’m not happy. I would want it to be a different amount of money or something else different, but I will go along and accept it. Is that what you’re saying?
“[ROSE]: That’s what I’m saying, Your Honor.”
Justice Buckley also rejected Lorraine’s identical claim that her agreement to the settlement was coerced because Judge Kingsley threatened to impose sanctions on her for her failure to appear at trial if she did not agree to the settlement. Justice Buckley found it significant that Judge Kingsley’s comment to Lorraine regarding sanctions--that the court would not be pursuing any sanctions for Lorraine’s nonappearance--was made after Lorraine had agreed to the settlement on the record. Accordingly, Justice Buckley determined that Judge Kingsley was merely indicating that the sanctions issue “was no longer on the table” and Judge Kingsley’s comment did not show that Lorraine’s agreement to the settlement was made under duress.
The January 8, 2007 transcript supports Justice Buckley’s findings regarding Lorraine’s agreement to the settlement, as shown in the excerpt quoted below:
“THE COURT: Hi Lorraine. This is Judge Kingsley again, and I have Mr. Wills and the defense counsel and a court reporter present so we’re making a record of the agreement. [¶] And we just have a conversation with you. I know you’re not completely happy with it. But you are willing to go along with the rest of the family and agree to settle the case for a million dollars; is that correct?
“[LORRAINE]: Yes.
“THE COURT: Okay. Very good, Lorraine.... [¶]... [¶] Okay. I will then not be pursuing any sanctions’ motions regarding your failure to appear today. I want to let you know that.
“[LORRAINE]: Okay.
“THE COURT: And this settlement is independent of that.”
Therefore, based on our reading of the pertinent portions of the transcript of January 8, 2007, we determine that the evidence supports Justice Buckley’s findings that Judge Kingsley did not coerce Rose and Lorraine to agree to the settlement by threatening sanctions and consequently their agreement was not made under duress.
Moreover, to the extent that different inferences may be drawn from Judge Kingsley’s mention of possible sanctions during the January 8, 2007 telephone conversations with Rose and Lorraine regarding settlement, we are required by the applicable standard of review to draw all reasonable inferences in favor of the order denying the motion to vacate the judgment. “When two or more inferences can reasonably be deduced from the evidence, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] ‘In this connection we employ the equivalent of the substantial evidence test by accepting the trial court’s resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences.’ [Citation.] ‘Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict.’ ” (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1078.)
Applying this standard of review, we defer to Justice Buckley’s reasonable inference, after his review of the record of the proceedings of January 8, 2007, that Judge Kingsley did not coerce the settlement by threatening to sanction Lorraine and Rose if they did not agree. We also defer to Justice Buckley’s finding that their agreement to the settlement was not made under duress. We therefore conclude that Justice Buckley did not abuse his discretion in denying the motion to vacate the judgment as to Rose and Lorraine.
Finally, because appellants have not argued that the agreement of Virginia and John Jr. to the settlement was coerced by Judge Kingsley or made under duress, we find that they have abandoned the issue. “Issues not raised in an appellant’s brief are deemed waived or abandoned. [Citation.]” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
B. The Motion to Enforce Settlement
Having concluded that Justice Buckley did not abuse his discretion in denying appellants’ motion to vacate the judgment, we turn to their alternative argument that the settlement agreement is unenforceable and therefore Judge Kingsley should have denied defendant’s motion to enforce the settlement.
1. The Parties’ Contentions
Appellants reiterate their argument that the settlement agreement in this case is unenforceable because Judge Kingsley coerced them to agree by threatening that unless they agreed, she would impose sanctions due to the failure of Rose and Lorraine to appear at trial. According to appellants, Judge Kingsley’s alleged coercion violated their constitutional rights “to define the objectives of their lawsuit, ” to have “their day in court, ” and to have an “ ‘adversarial’ proceeding.” Alternatively, plaintiffs argue in their reply brief that the settlement is unenforceable because Rose and Lorraine did not expressly consent to the confidentiality provision in the settlement agreement.
Respondents Pride Mobility, Parkside and GSMS maintain that Judge Kingsley properly granted their motion to enforce the settlement because her findings that appellants understood and agreed to the settlement are supported by substantial evidence. They assert that the context of Judge Kingsley’s remarks regarding the possibility of sanctions shows that the judge’s remarks were prompted by Rose’s question regarding the consequences for her failure to appear, and did not indicate that Judge Kingsley intended to coerce settlement or threaten the plaintiffs. Respondents also emphasize that at the time of the hearing on the motion to enforce settlement, none of the appellants stated that Judge Kingsley’s remarks to Rose regarding sanctions had motivated them to agree to the settlement.
Alternatively, Pride Mobility filed a motion to dismiss the appeal, in which Parkside joined, on the ground the court-ordered payment of attorney Thomas Wills’ attorney fees lien from the settlement proceeds constitutes their acceptance of the benefits of the settlement and precludes the appeal. Respondents also argue that because there can only be one judgment in a wrongful death action, further litigation of the wrongful death action is barred under section 377.60, and, in any event, recovery of the settlement funds already distributed is not possible.
Our analysis begins with a review of section 664.6, the statute authorizing a motion to enforce settlement.
California has a strong policy favoring settlement of litigation. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 910 (Assemi).) Consistent with that policy, the Legislature created section 664.6 as “a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 585 (Levy).)
Section 664.6 provides, “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.” Thus, section 664.6 empowers the trial court to “ultimately determine whether the parties reached a binding mutual accord as to the material terms.” (Assemi, supra, 7 Cal.4th at p. 905.)
The California Supreme Court has established a three-part test for determining whether a settlement agreement is enforceable under section 664.6: “[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.” (Assemi, supra, 7 Cal.4th at p. 911.)
“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. [Citations.]” (Assemi, supra, 7 Cal.4th at p. 911.) Additionally, where the judge who presided over the settlement also hears the section 664.6 motion to enforce the settlement, the judge may consider his or her own recollection of the settlement proceedings. (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.) Thus, the trial court acts as the trier of fact. (Ibid.)
3. Standard of Review
The standard governing our review of a judgment entered upon the trial court’s order granting a motion under section 664.6 to enforce a settlement is whether the court’s ruling is supported by substantial evidence. (Assemi, supra, 7 Cal.4th at p. 911.) We emphasize that the substantial evidence standard of review is deferential. “In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]” (In re Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) Further, “ ‘[a]n appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated.... So far as it has passed on the weight of the evidence or the credibility of witnesses, its implied findings are conclusive.” (Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 507-508.)
Having carefully reviewed the record on appeal in its entirety, for several reasons we are convinced that substantial evidence supports the trial court’s finding that the settlement agreement is enforceable as to all four appellants.
4. Appellants Virginia and John Jr.
We first address appellants Virginia and John Jr., who expressly stated their agreement to the settlement terms at the time of the January 8, 2007 proceedings on the record as follows:
“THE COURT: Now what we’re doing is just formally putting on the record your agreement and the defense agreement to settle for the amount and the conditions. [¶] It’s my understanding that [Pride Mobility] will be giving $1 million.
“MR. WILLS [plaintiffs’ attorney]: Yes.
“THE COURT: And the landlord [Parkside] will be giving $15,000.
“MR. WILLS: Yes, Your Honor.
“THE COURT: And conditions of that settlement are that there be no admission of liability.
“MR. WILLS: Yes.
“THE COURT: There will be confidentiality maintained in the terms and conditions and the amount of the settlement, and that the manufacturer of Pride have access to all the expert data that you’ve developed.
“MR. WILLS: Yes.
“THE COURT: So they may use that in reviewing the issue and researching it and taking care of any problems if they exist.
“MR. WILLS: That’s right. [¶]... [¶]
“THE COURT: All right. Virginia, would you state your full name.
“[VIRGINIA]: Virginia Robles, and I am in agreement.
“THE COURT: Okay. With, not only the amount, but all the terms and the conditions?
“[VIRGINIA]: All the terms and the conditions?
“MR. WILLS: Yes.
“THE COURT: The confidentiality, sharing of the expert data, and that they’re not admitting liability. You can’t go around and say they admitted liability.
“MR. WILLS: Yes?
“[VIRGINIA]: Correct.
“THE COURT: What did you say?
“[VIRGINIA]: Correct.
“THE COURT: Correct.” [¶]... [¶]
“THE COURT: And John, would you state your full name, please.
“[JOHN, JR.]: My name is Johnny Albert Robles, Junior.
“THE COURT: Okay.
“[JOHN JR.]: And I do agree.
“THE COURT: All right. To, both, the amount and the terms?
“[JOHN JR.]: The amount and the terms.”
The above excerpt from the reporter’s transcript of January 8, 2007, shows that it cannot be disputed that Judge Kingsley (1) explicitly defined the material terms of the settlement; (2) questioned Virginia and John Jr. regarding their understanding of those terms, and (3) Virginia and John Jr. acknowledged their understanding of and agreement to be bound by those terms. (Assemi, supra, 7 Cal.4th at p. 911.) Accordingly, we determine that substantial evidence supports the trial court’s ruling that the settlement agreement is enforceable as to Virginia and John Jr.
5. Appellants Rose and Lorraine
As discussed in part A, above, we find no merit in the argument that Judge Kingsley coerced Rose and Lorraine to agree to the settlement by threatening that unless they agreed, she would impose sanctions due to their failure to appear at trial.
Appellants’ alternative contention--that the settlement agreement is void as to Rose and Lorraine because they did not expressly agree on the record to the confidentiality provision--is also unavailing. Since Rose and Lorraine failed to raise the issue in their oral opposition to the motion to enforce settlement, they have forfeited the issue. As a general rule, issues not properly raised in the trial court will not be considered on appeal. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 15.)
The issue regarding whether Rose and Lorraine agreed to the confidentiality agreement was also not raised in appellants’ motion to vacate the judgment.
Even assuming that Rose and Lorraine did not forfeit the issue, we would find it to lack merit. It is not required under section 664.6 that all of the terms of a settlement agreement be recited on the record for the settlement agreement to be enforceable. The California Supreme Court has instructed that section 664.6 “requires the ‘parties’ to stipulate in writing or orally before the court that they have settled the case.” (Levy, supra, 10 Cal.4th at p. 585.) Therefore, it is sufficient under section 664.6 that Rose and Lorraine stated before the court, during the proceedings of January 8, 2007, that they agreed to the settlement, without expressly agreeing on the record to the confidentiality provision.
We nevertheless urge counsel or the trial court to state the material terms of the settlement agreement on the record. It is important to state the material terms on the record in order to “decrease the likelihood of misunderstandings” regarding the settlement. (Levy, supra, 10 Cal.4th at p. 585.)
The Levy court noted that “In 1993, the Legislature amended section 664.6 by providing, among other things, that the written stipulation be ‘signed by the parties outside the presence of the court’ and that the oral stipulation before the court be made ‘on the record.’ (Stats. 1993, ch. 768, § 1.) An amendment to this provision in 1994 deleted the phrase ‘on the record.’ (Stats. 1994, ch. 587, § 7.)” (Levy, supra, 10 Cal.4th at p.580, fn.1.)
Additionally, substantial evidence shows that the three-part Assemi test was satisfied because the details of the settlement agreement were discussed with Judge Kingsley in chambers. First, as required by Assemi, the material terms of the settlement were explicitly defined, since the record indicates that Judge Kingsley reviewed the details of the settlement with plaintiffs during their discussions with her in chambers on January 8, 2007. (Assemi, supra, 7 Cal.4th at p. 911.) Judge Kingsley properly consulted her own recollection of the parties’ settlement agreement, since she presided over both the settlement conference held on January 8, 2007, and the hearing on the motion to enforce the settlement. (Kohn v. Jaymar-Ruby, supra, 23 Cal.App.4th at p. 1533; Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97.)
Second, the record shows that Judge Kingsley answered many questions from plaintiffs during their settlement discussions in chambers on January 8, 2007, as she stated during the proceedings of March 28, 2007. (Assemi, supra, 7 Cal.4th at p. 911.) Third, as we have discussed, appellants expressly agreed to the settlement on the record. (Ibid.)
We recognize that Rose and Lorraine were not physically present in chambers during the settlement discussions with Judge Kingsley on January 8, 2007. However, plaintiffs’ former attorney Thomas Wills stated, at the time of the March 28, 2007 hearing on the motion to enforce settlement, that “the Court went over the terms of the settlement agreement with each of the plaintiffs; went over the terms of the settlement on the phone with the plaintiffs, and then it was placed on the record.”
We therefore find that the record shows that substantial evidence supports the trial court’s implicit findings in this case that Rose and Lorraine agreed to all material terms in the settlement agreement, including the confidentiality provision. Consequently, Judge Kingsley did not err in granting the section 664.6 motion to enforce settlement with respect to Rose and Lorraine.
Having determined that (1) substantial evidence supports Judge Kingsley’s order granting the section 664.6 motion to enforce the settlement; and (2) Justice Buckley did not abuse his discretion in denying the motion to vacate the judgment, we conclude that the judgment of dismissal should be affirmed. We need not reach respondents’ contentions that further litigation of the wrongful death action is barred under section 377.60, because there can be only one judgment in a wrongful death action, and that recovery of the settlement funds already distributed is not possible.
Since we have decided the appeal on the merits, we will deny as moot the motion of Pride Mobility to dismiss the appeal on the ground that appellants accepted a benefit of the settlement when their former attorney’s lien was paid from the settlement proceeds. We will also deny as moot appellants’ motion to strike Parkside’s joinder in the motion to dismiss.
IV. DISPOSITION
The judgment of dismissal is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: MIHARA, J., MCADAMS, J.