The Second Appellate District Court of Appeal has filed an unpublished opinion discussing the repercussions of filing a judgment that did not contain all of the terms agreed upon by the parties. The case was reversed.
Section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing . . . 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.” “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment (citations), nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 (Weddington).) Thus, “a trial court cannot enforce a settlement under section 664.6 unless the trial court finds the parties expressly consented . . . to the material terms of the settlement. [Citation.]” (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)
First, the Amended Proposed Judgment was not even served on van der Veer at the time of the hearing on the motion to enter judgment; therefore, she could not have objected to its terms at that time. Second, waiver is the “ ‘intentional relinquishment or abandonment of a known right’ (citation)”; what Regalbuto is referring to more akin to forfeiture or “the failure to make the timely assertion of a right.” (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) However, Regalbuto served the Amended Proposed Judgment on van der Veer only the day before the order to show cause on 6 entry of judgment and she timely asserted her objections to this document at that hearing.
Finally, the court’s entry of judgment here was contrary to the plain language of section 664.6 as well as the legal principles underlying the statute. Section 664.6 requires that the parties stipulate either in a writing or orally before the court to the terms of the settlement. Here, there was no evidence that the parties stipulated to the new terms either in writing or orally before the court. In addition, “[s]ection 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citation.] . . . [¶] [¶] A settlement agreement is a contract . . . [and] [a]n essential element of any contract is ‘consent’ . . . [which] must be ‘mutual.’ [Citations.]” (Weddington, supra, 60 Cal.App.4th 793, 809-811 (emphasis added).) Here, no contract was formed as to the additional terms inserted into the judgment because van der Veer never agreed to them.4 Accordingly, as van der Veer did not consent to many of the material terms in the judgment, it must be reversed.