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Court of Appeal:
Filing Notice of Conditional Settlement Did Not Bar Dismissal
Majority Says Parties’ Accord Was Merely ‘Anticipated,’ Rendering Inapplicable Rule That Court, Apprised of Agreement, Must Vacate Hearing Dates; Dissenter Maintains That Judge Erred in Supposing There Must Be Signed Writing
By a MetNews Staff Writer
A judge did not err in dismissing an action when neither party showed up for trial, notwithstanding a notice of conditional settlement having been electronically transmitted to the court the previous afternoon, Div. Five of this district’s Court of Appeal has held, in a 2-1 decision.
Justice Dorothy C. Kim authored the unpublished opinion, filed Tuesday, and was joined by Acting Presiding Justice Lamar Baker. Dissenting, Justice Carl H. Moor said the dismissal by Los Angeles Superior Court Judge Barbara Ann Meiers was based on her “erroneous interpretation of the term ‘settlement agreement’ ” in a court rule, supposing that it applies “solely to signed written settlement agreements” when it doesn’t.
The plaintiff’s attorney, Michael Sayer, of Debt Recovery Attorneys in Irvine, at 4:52 p.m. on Jan. 4. 2024— the clay before trial was scheduled to start—electronically filed a “Notice of Settlement of Entire Case,” advising that the accord was conditional. In response to an emailed inquiry from Judicial Assistant Grace Vela the next morning, he said the parties “are circulating the settlement agreement today,” that it will contain a provision pursuant to Code of Civil Procedure §664 under which the court would retain jurisdiction, and that a request for dismissal would be filed once the defendant had made the promised payments.
Appearances Required
Vela advised:
“As of now everything is still set as a Court trial so please make sure to make an appearance.”
Sayer responded by citing California Rules of Court, rule 3.1385(c)(3)(A)—which provides that, with an exception that was not applicable, “on the filing of the notice of conditional settlement, the court must vacate all hearings and other proceedings requiring the appearance of a party and may not set any hearing or other proceeding requiring the appearance of a party earlier than 45 days after the dismissal date specified in the notice, unless requested by a party.”
He advised:
“The notice of settlement prohibits your judge from proceeding with the court trial today.”
Meiers disagreed. Making note that neither party appeared, she dismissed the action.
Motion Denied
Responding to a motion to set aside/vacate the dismissal, she declared on Feb. 9, 2024:
“Rule 3.1385…bears the caption. ‘Duty to notify court and others of settlement of entire case.’ It then goes on in section (a) ‘Notice of Settlement’ subpart (1) to say….[‘]If an entire case is settled...each plaintiff or other party seeking affirmative relief must immediately file written notice of the settlement.. . with the court.’ [Emphasis added.]
“This does not mean that someone can just have a belief that a settlement will be forthcoming and notify a court based on that that a trial is now ‘off.’ as Mr. Sayer did. It means that a party or plaintiff taking such a step must actually have ‘a settlement.’ i.e.. an enforceable settlement as defined by law for the purposes of civil litigation as set forth in Code of Civil Procedure section 664.6. That was not present here. On the face of this section…Plaintiff did not have a ‘settlement’ at all when he filed his Notice and corresponded with the clerk.”
She went on to say:
“[I]f a settlement is entered into outside of court, it must be by means of a written, completely executed, i.e.. signed, document. Plaintiffs own admonitions in it’s [sic] lawyer’s e-mail establish that Mr. Saver did not have this when he prematurely called the court clerk to inform her of a ‘’settlement,’ and he incontrovertibly did not have it when he prematurely filed his ‘Notice of Settlement of Entire Case’ on January 4th or 5th for there is no settlement until the requirements of Code of Civil Procedure section 664.6 are met!...
“The settlement must consist of a signed writing. Plaintiff’s counsel is missing this.”
Kim’s Opinion
Agreeing with Meiers, Kim wrote:
“[R]ule 3.1385(c) requires a settlement agreement and not an anticipated one. As reflected in plaintiff’s counsel’s representation to the trial court’s judicial assistant, the parties did not have a settlement agreement and, accordingly, rule 3.1385(c)(3)(A) did not apply. We decline plaintiffs invitation to interpret rule 3.1385(c)(3)(A) as requiring the court to vacate all hearings and other proceedings upon the filing of any settlement notice, even one where the evidence before the trial court demonstrates that the parties only anticipate a settlement as such an interpretation would invite mischief by parties and usurp the inherent authority of trial courts.
“Accordingly, notwithstanding plaintiffs filing of plaintiffs settlement notice, when the trial court’s judicial assistant, whom we presume was acting at the court’s direction, informed plaintiff’s counsel that the matter remained set for trial and he was to appear, the court was properly exercising its inherent power to control the litigation of a matter on its docket.”
Moor’s Dissent
Moor argued in his dissent:
“Based on the plain language, rule 3.1385(a)(1) applies when an entire case has been ‘settled or otherwise disposed of.’ The rule does not contain any limitation to cases settled in writing, with signatures of the parties, or in a manner enforceable under Code of Civil Procedure section 664.6. If the parties enter into a binding agreement resolving the entire case, whether orally, through an exchange of emails, in a signed writing, or any other form, rule 3.1385(a)(1) requires the party seeking relief to notify the court immediately. The rule does not require the parties to provide the agreement to the court.”
He added:
“[I]f the dratters intended rule 3.1385 to apply solely to settlements in writing that are signed by the parties, they clearly knew how to specify these requirements. To interpret rule 3.1385 to apply solely to signed written agreements would present a trap for the practitioner.”
Meiers’s Concern
In her Feb. 9, 2024 minute order, Meiers lamented:
“[S]ad to say. there are attorneys who are at times not ready for trial on the date set, and, were this Rule of Court to be interpreted as plaintiff urges, all any such counsel would have to do would be to file a completely untrue Notice of Settlement to avoid the trial date and then be able to come back later and say, when they are finally ready to proceed to trial, ‘well it fell through.’ Or using the extra time, they might actually succeed in reaching a later settlement.”
Moor responded:
“However, rule 3.1385 contains safeguards against manipulation by requiring the party seeking affirmative relief to file the notice of settlement. Once a notice of settlement is filed under rule 3.1385, the case must be dismissed unless the parties show good cause exists why it should not be dismissed. It is unlikely that am attorney would jeopardize his client’s claim to relief by filing a false notice of settlement, putting the case on track for dismissal, without believing the parties had an enforceable settlement, merely on the hope that good cause could be shown later to restore the case to the active list.”
He continued:
“For if the trial court concluded that a party filed a false notice of settlement to manipulate the court’s calendar, the court would not find good cause existed not to dismiss the case. Moreover, if a party filed a false notice of settlement before a scheduled appearance, the opposing party would appear or object to the notice of settlement to make the record clear that the party had not agreed to settlement. I note that the existence of a signed written agreement also does not prevent parties from returning to court and showing good cause under rule 3.1385 to restore the case to the active list because a party alleges the agreement is incomplete or unenforceable.”
The case is Tex v. Lovely J, Inc., B337147.
Sayer, who declined to comment on the opinion, represented the plaintiff/appellant on appeal. Sang I. Lee of the Beverly Hills firm of Lee & Park acted for the defendants/respondents.
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