Mesa RHF Partners v. City of LA

Filed 3/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MESA RHF PARTNERS, L.P.,
B288355
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BS140224)
CITY OF LOS ANGELES, et
al.,
Defendants and
Respondents.
HILL RHF HOUSING B288356
PARTNERS, L.P.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS138416)
v.
CITY OF LOS ANGELES, et
al.,
Defendants and
Respondents.
APPEALS from orders of the Superior Court of Los Angeles
County, Amy D. Hogue, Judge. Affirmed.
Reuben Raucher & Blum, Timothy D. Reuben, Stephen L.
Raucher, and Hana S. Kim for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Beverly A. Cook,
Assistant City Attorney, and Daniel M. Whitley, Deputy City
Attorney, for Defendants and Respondents.
____________________________
Mesa RHF Housing Partners (Mesa), Hill RHF Housing
Partners (Hill), and Olive RHF Housing Partners (Olive) appeal
from orders denying motions to enforce settlement agreements
under Code of Civil Procedure section 664.6.1 The trial court
denied those motions on the merits. We affirm the trial court’s
orders, but we do so based on our conclusion that the trial court
was without jurisdiction to hear the motions.
BACKGROUND
Hill and Olive filed a petition for peremptory writ of
mandate and complaint for declaratory and injunctive relief
against the City of Los Angeles and the Los Angeles County
Assessor’s Office on July 18, 2012 challenging various provisions
regarding the City’s establishment of the Downtown Center
Business Improvement District (DCBID) by ordinance of April
10, 2012. On January 13, 2013, counsel for Hill and Olive filed a
notice of settlement of entire case stating that the parties had
settled the case on December 20, 2012. The parties’ settlement
agreement contained the following language: “The Court shall
retain jurisdiction pursuant to Code of Civil Procedure section
664.6 to enforce the terms of the Settlement Agreement.” On
1 Statutory references are to the Code of Civil Procedure
unless otherwise specified.
2
March 1, 2013, counsel for Hill and Olive filed a request for
dismissal on Judicial Council form CIV-110 that contained the
following language counsel inserted into the document: “Court
shall retain jurisdiction to enforce settlement per C.C.P. §664.6.”
A deputy clerk entered the dismissal “as requested” on the same
day.
On November 1, 2012, Mesa filed a petition for peremptory
writ of mandate and complaint for declaratory and injunctive
relief against the City of Los Angeles, the San Pedro Historic
Waterfront Property and Business Improvement District
(SPBID), and the San Pedro Property Owners Alliance
challenging various provisions regarding the City’s establishment
of the SPBID by ordinance of October 4, 2012. On February 27,
2013, counsel for Mesa filed a notice of settlement of entire case
stating that the parties had settled the case that same day. The
parties’ settlement agreement contained the following language:
“The Court shall retain jurisdiction pursuant to Code of Civil
Procedure section 664.6 to enforce the terms of the Settlement
Agreement.” On September 26, 2013, counsel for Mesa filed a
request for dismissal on Judicial Council form CIV-110 that
contained the following language counsel inserted into the
document: “The Court shall retain jurisdiction to enforce the
settlement agreement per Code of Civil Procedure §664.6.” A
deputy clerk entered the dismissal “as requested” on the same
day.
The parties’ settlement agreements purported to settle all
of the matters raised by the Olive, Hill, and Mesa petitions. The
City agreed to “undertake to make [Hill and Olive] whole” for any
assessments by the DCBID against properties those entities
owned when the DCBID was formed. “For so long as [Hill and
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Olive] remain the owners of these properties,” the settlement
agreement provided, “and the DCBID continues in its current
formulation, the City will remit to [Hill and Olive] an amount
sufficient to satisfy the amounts paid by [Hill and Olive] to the
DCBID . . . .” The Mesa settlement agreement contained the
same operative language and commitment from the City “[f]or so
long as Mesa[] remains the owner of this property, and the
SPBID continues in its current formulation.”
The DCBID and SPBID each expired on December 31,
2017. They were renewed pursuant to statute for a new term to
begin on January 1, 2018. During the parties discussions
regarding the Business Improvement Districts’ (BIDs) renewals,
the City informed Mesa, Hill, and Olive that it believed the
settlement agreements terminated with the BIDs’ expiration.
The City contended that the renewal discontinued each of the
BIDs “in its current formulation,” and that the City would
therefore no longer be required to remit to Mesa, Hill, and Olive
amounts the BIDs had assessed those entities.
On January 4, 2018, Hill, Olive, and Mesa filed motions to
enforce the settlement agreements under section 664.6. The trial
court heard and denied the motions on January 31, 2018 on the
merits. Mesa, Hill, and Olive filed timely notices of appeal.
Because the record contains no request for the trial court to
retain jurisdiction as required by section 664.6, we requested
supplemental briefing from the parties regarding the trial court’s
retention of jurisdiction under section 664.6.2
2In addition to their supplemental briefs, on February 15,
2019, Mesa, Olive, and Hill also filed a request for judicial notice.
We grant the request for judicial notice.
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DISCUSSION
Although the parties try to characterize Hill, Olive, and
Mesa’s requests for dismissal as requests to the trial court that it
retain jurisdiction under section 664.6 to enforce the parties’
settlement agreements, we disagree with that characterization.
The requests for dismissal were not signed by the “parties” (or
even a single “party”) as that term in section 664.6 has been
uniformly construed by California courts.
“[V]oluntary dismissal of an action or special proceeding
terminates the court’s jurisdiction over the matter.” (In re
Conservatorship of Martha P. (2004) 117 Cal. App. 4th 857, 867.)
“If requested by the parties,” however, “the [trial] court may retain
jurisdiction over the parties to enforce [a] settlement until
performance in full of the terms of the settlement.” (§ 664.6,
italics added.) “Because of its summary nature, strict compliance
with the requirements of section 664.6 is prerequisite to invoking
the power of the court to impose a settlement agreement.” (Sully-
Miller Contracting Co. v. Gledson/Cashman Construction, Inc.
(2002) 103 Cal. App. 4th 30, 37; Critzer v. Enos (2010) 187
Cal. App. 4th 1242, 1262 (Critzer).)
A request for the trial court to retain jurisdiction under
section 664.6 “must conform to the same three requirements
which the Legislature and the courts have deemed necessary for
section 664.6 enforcement of the settlement itself: 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.” (Wackeen v. Malis (2002) 97 Cal. App. 4th
429, 440 (Wackeen).) The “request must be express, not implied
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from other language, and it must be clear and unambiguous.”
(Ibid.)
The parties ask us to construe Mesa, Hill, and Olive’s
requests for dismissal as section 664.6 requests for the trial court
to retain jurisdiction.3 We will not do so.
The request to the court that it retain jurisdiction under
section 664.6 must be made by the parties. “[A] request that
jurisdiction be retained until the settlement has been fully
performed must be made either in a writing signed by the parties
themselves, or orally before the court by the parties themselves,
not by their attorneys of record, their spouses, or other such
agents.” (Wackeen, supra, 97 Cal.App.4th at p. 440; Critzer,
supra, 187 Cal.App.4th at p. 1254.) The Judicial Council form
CIV-110 in each case was signed only by an attorney for Mesa,
Hill, and Olive.
The City contends that the settlement agreements, which
were never presented to the trial court before Mesa, Hill, and
Olive requested dismissal, were the request and that request was
then communicated to the trial court via the Judicial Council
form CIV-110. We disagree.
The settlement agreements were not attached to the
Judicial Council form requests for dismissal or otherwise
transmitted to the trial court before the cases were dismissed.
3 The parties agree that the trial court retained jurisdiction
under section 664.6 to enforce the settlement agreements. But
subject matter jurisdiction “is not subject to forfeiture or waiver”
and cannot be conferred by “estoppel, consent, . . . or agreement.”
(Kim v. Konad USA Distribution, Inc. (2014) 226 Cal. App. 4th
1336, 1347; Garibotti v. Hinkle (2015) 243 Cal. App. 4th 470, 481.)
The parties’ agreement in this instance is consequently neither
dispositive nor even germane.
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The City’s argument runs directly contrary to our Supreme
Court’s determination that “the term ‘parties’ as used in section
664.6 . . . means the litigants themselves, and does not include
their attorneys of record.” (Levy v. Superior Court (1995) 10
Cal. 4th 578, 586.) The City makes an impassioned plea that
parties will be caught in a “ ‘Catch 22’ where any path to
settlement enforcement potentially could be foreclosed to them.’ ”
Given the instruction to litigants in the published cases on this
topic, we are not persuaded by the City’s argument. Mesa, Olive,
and Hill can, for example, file a new action for breach of the
settlement agreement. (See, e.g., Hagan Engineering, Inc. v.
Mills (2003) 115 Cal. App. 4th 1004, 1011.) In this case, the
parties could have easily invoked section 664.6 by filing a
stipulation and proposed order either attaching a copy of the
settlement agreement and requesting that the trial court retain
jurisdiction under section 664.6 or a stipulation and proposed
order signed by the parties noting the settlement and requesting
that the trial court retain jurisdiction under section 664.6. The
process need not be complex. But strict compliance demands that
the process be followed.
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DISPOSITION
The trial court’s orders denying the motions to enforce the
settlement agreements are affirmed. The parties are to bear
their own costs on appeal.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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