California Court of Appeal Mar 25, 2014 No. D061479Unpublished
Filed 3/25/14 Ramos v. Oatey CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HARMONY RAMOS et al., D061479, D061849, D062109
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2010-00057106- CU-BC-NC) DIANE OATEY,
Defendant and Appellant.
CONSOLIDATED APPEALS from orders of the Superior Court of San Diego
County, Thomas P. Nugent, Judge. Affirmed.
Diane Oatey in pro per., for Defendant and Appellant.
Komanapalli Massey and Mark Allen Massey; Gartenberg Gelfand Hayton &
Selden, Carolyn Ann Pearson, Jason Bluver and Shirley Hayton, for Plaintiffs and
Respondents.
Diane Oatey, appearing in propria persona, appeals from orders: (1) dismissing her
first amended cross-complaint; (2) entering a default judgment on a cross-complaint against
her; (3) granting a good faith settlement motion; and (4) enforcing a settlement agreement
against her. We reject her arguments and affirm the orders.
GENERAL FACTUAL AND PROCEDURAL BACKGROUND
Defendant Extraordinary Conceptions (EC) is an agency that offers surrogate parent
services. Defendants Stephanie Caballero and Mario Caballero (together the Caballeros)
1426 [writ review "preferable" but determination also reviewable on appeal from final
9
judgment following summary denial of writ petition]; Cahill v. San Diego Gas & Elec. Co.
(2011) 194 Cal.App.4th 939, 955-956 [availability of writ review, or the summary denial of
a writ petition, does not preclude an appeal from a good faith settlement after a final
judgment]. We need not take a position on this issue because, assuming the order is
appealable, we would reject Oatey' arguments on their merits.
Oatey argues that the trial court improperly approved the settlement before the 25-
day statutory period expired for her to contest the settlement and that the court did not have
the authority to approve the settlement because it contained a confidentiality clause. We
disagree.
"Where parties to a lawsuit settle 'in good faith before verdict or judgment' the
settling tortfeasor is released from all liability for any contribution to any other tortfeasors
and the claims against the nonsettling tortfeasors will be reduced by the amount of the
contribution paid for the release of the settling tortfeasor." (L.C. Rudd & Son, Inc. v.
Superior Court (1997) 52 Cal.App.4th 742, 747.) Subdivision (a)(2) of section 877.6
provides an expedited procedure whereby a party to a settlement may apply for an order
determining the settlement was made in "good faith" by serving specified documents by
certified mail, return receipt requested. Once this is done, a nonsettling party may contest
the "good faith" of the settlement by serving and filing a motion within 25 days after the
specified documents were mailed. (§ 877.6, subd. (a)(2).) If no contest is made within the
25-day period, "the court may approve the settlement." (Ibid.) This expedited procedure,
however, cannot be used where the settlement agreement contains a confidentiality clause
regarding the case or the terms of the settlement. (Ibid.) The reason for this prohibition is
10
that a nonsettling defendant cannot meet the burden of showing that the settlement was not
in good faith without viewing the contents of the settlement agreement. (Mediplex of
California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748, 749.)
As a threshold matter, while Oatey is correct that the settlement agreement between
the EC Defendants and the Ramos contains a confidentiality clause, the clause pertains to
keeping the agreement confidential from the public, not Oatey. Here, the EC Defendants
attached the written settlement agreement to their application for good faith settlement.
(Mediplex of California, Inc. v. Superior Court, supra, 34 Cal.App.4th at pp. 751-752
[nonsettling party must be allowed to review settlement agreement if it is to meet its burden
showing settlement was not in good faith].) Accordingly, we reject Oatey's argument that
the expedited procedure of subdivision (a)(2) of section 877.6 did not apply.
We also reject Oatey's argument that the trial court approved the settlement before
the 25-day period for her to contest the settlement expired. On July 18, the EC Defendants
mailed the settlement application and supporting documents to Oatey by certified mail,
return receipt requested. Oatey concedes that she received the documents on July 27.
Assuming without deciding that the 25-day period to contest the settlement commenced
when Oatey received the documents on July 27, the time to contest the settlement expired
on August 22. Oatey, however, untimely filed her opposition to the EC Defendants'
application on December 22. Although a minute order denied Oatey's challenge to the good
faith of the settlement as untimely based on a filing date of August 25, the result is the
same—the trial court properly denied the challenge as untimely.
11
V. Enforcement of Settlement Between Oatey and the Ramos'
A. Facts
In October 2011, Oatey entered into a settlement agreement wherein she agreed to
dismiss her cross-complaint as to the Ramos in consideration of the Ramos dismissing their
complaint as to Oatey. After Oatey failed to dismiss her cross-complaint, the Ramos moved
to enforce the settlement under section 664.6. Thereafter, Oatey filed an ex parte
application to take the hearing off calendar and requesting an order that counsel for the
Ramos be disqualified. Oatey declined the court's invitation to have her ex parte papers
considered as opposition to the Ramos' motion. Accordingly, the court considered the
motion to enforce the settlement as being unopposed. The trial court later granted the
motion. After Oatey failed to file the dismissal, the court ordered Oatey's first amended
cross-complaint dismissed with prejudice as to the Ramos.
B. Analysis
Oatey argues that the settlement agreement entered into between her and the Ramos'
should be rescinded because: (1) counsel for the EC Defendants was ineligible to practice
law when he filed the motion to enforce the settlement; (2) it was not entered into in good
faith; and (3) the signed settlement agreement did not reflect her understanding of the
settlement terms. We reject her contentions.
Generally, "[n]o person shall practice law in California unless the person is an active
member of the State Bar." (Bus. & Prof. Code, § 6125.) We take judicial notice of the
records of the California State Bar posted on its official Web site and note Oatey is correct
that the counsel for the Ramos that signed the settlement agreement and the motion to
12
enforce the settlement was ineligible to practice law from December 29, 2011 to January 17,
2012. (Evid. Code, § 452, subd. (h) [allows the court to take judicial notice of "[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy"]; In re
White (2004) 121 Cal.App.4th 1453, 1469, fn. 14 [taking judicial notice of State Bar Web
site]; see <http://members.calbar.ca.gov/fal/Member/Detail/180804>, as of March 19,
2014.)
A suspension order disqualifies an attorney from practicing law. (Arm v. State Bar
(1990) 50 Cal.3d 763, 775.) Counsel for the Ramos was eligible to practice law when he
and Oatey signed the settlement agreement in October 2011, but ineligible when counsel
moved to enforce the settlement agreement in early January 2012. (Birbrower, Montalbano,
Condon & Frank, P.C. v. Superior Court (1998) 17 Cal.4th 119, 128 [the practice of law
includes appearing on behalf of another in adjudicative proceedings].)
When it denied Oatey's request to take the motion to enforce the settlement
agreement off calendar, the trial court noted that Oatey provided no authority that this is the
proper remedy for the unauthorized practice of law. Similarly here, Oatey provided no
authority that the settlement agreement between her and the Ramos should be rescinded for
this reason. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862
[arguments presented without citation to authority are treated as waived].)
A trial court is authorized to enter judgment based on a settlement agreement.
(§ 664.6.) A settlement agreement is a contract to which the legal principles generally
applicable to contracts apply. (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206
13
Cal.App.4th 724, 732.) When a contract is reduced to writing, the parties' intention is
determined from the writing alone, if possible. (Founding Members of the Newport Beach
Country Club v. Newport Beach County Club, Inc. (2003) 109 Cal.App.4th 944, 955.) In
construing a contract, a party's subjective intent is immaterial. (Brant v. California Dairies,
Inc. (1935) 4 Cal.2d 128, 133.) Instead, the objective meaning of the words is controlling.
(Ibid.)
Oatey has also failed to show that the settlement agreement was not entered into in
good faith, voluntarily, or that it did not reflect her understanding of the settlement terms.
The written settlement agreement is about six pages long. Therein, Oatey agreed "that the
terms of the Agreement are fully understood and voluntarily accepted" by her. Although
Oatey argues, among other things, that she did not fully understand the agreement and that
the terms of the settlement were not explicitly defined, she failed to cite any evidence
supporting these contentions. Accordingly, the trial court did not err when it granted the
Ramos' motion to enforce their settlement agreement with Oatey.
DISPOSITION
The orders are affirmed. Respondents are entitled to recover their costs on appeal.
McINTYRE, J. WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's orders dismissing the appellant's cross-complaint, entering default judgment against her, finding a good faith settlement, and enforcing a settlement agreement, holding that the appellant failed to provide cogent legal arguments or evidence to support her claims of error.
Issues
Did the trial court abuse its discretion in dismissing the appellant's first amended cross-complaint for failure to timely amend?
Did the trial court err in denying the appellant's motion to set aside the default and default judgment?
Did the trial court err in its good faith settlement determination under Code of Civil Procedure section 877.6?
Did the trial court err in enforcing the settlement agreement between the appellant and the respondents?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court acted within its discretion in dismissing Oatey's first amended cross-complaint as she failed to file a second amended cross-complaint despite being given ample time to do so.”
“Oatey, however, presented absolutely no evidence to cast doubt on the presumed fact that she received the cross-complaint, request for default and application for default judgment.”
“Oatey has also failed to show that the settlement agreement was not entered into in good faith, voluntarily, or that it did not reflect her understanding of the settlement terms.”