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Critzer v. Enos

August 30, 2010


(Santa Clara County Super. Ct. No. CV034156), Hon. James P. Kleinberg.

The opinion of the court was delivered by: Duffy, J.


David and Margaret Critzer, owners of a townhome in a Cupertino project known as Northpoint, and their neighbor, Jerry Enos, had a dispute concerning a window installed in Enos's upstairs bathroom in February 2004. The Critzers ultimately brought suit against Enos, Darien A. Tung (Enos's successor-in-interest), and Northpoint Homeowners Association (HOA). After it was assigned out to trial, the lawsuit was purportedly settled in January 2008, and its terms were recited on the record. Three of the five parties gave their personal consent in court to the purported settlement. Months later, after the parties reached an impasse concerning the appropriate language for a formal written agreement, the HOA brought a motion to enforce settlement under Code of Civil Procedure 664.6.*fn1 The court initially entered an order denying the Crtizers' request to insert three conditions in a formal agreement; requiring the parties to exchange language for a written agreement; and indicating that if the parties could not agree, it would select the appropriate settlement agreement from draft agreements submitted by the parties. After the parties were unable to reach an accord concerning the language of the agreement, the court entered an order enforcing settlement, holding that the HOA's version of the written agreement accurately reflected the parties' settlement, and declaring it binding on all parties.

The Critzers contend on appeal that the order enforcing settlement must be reversed. They argue that the court, by adjudicating controversies between the parties concerning the language in the formal settlement agreement, exceeded its authority under section 664.6. The HOA asserts in response*fn2 that the order is non-appealable and therefore should be dismissed. The HOA contends that if the matter is considered on the merits, the Critzers' proposed terms were not among those agreed upon by the parties, and the written agreement enforced by the court accurately reflected the parties' settlement that had been placed on the record.

We conclude that the order enforcing settlement finally determined the rights of the parties and therefore we will amend the order to include an appealable judgment. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183.) We thus hold that the matter is appealable. We conclude further that because there was neither an oral settlement all parties personally agreed upon, nor a written settlement agreement signed by all of the parties, the court lacked authority under the summary procedure of section 664.6 to enforce any settlement. Accordingly, we will reverse.


The Critzers filed this action on January 19, 2005. In their second amended complaint of in or about July 2007, they alleged seven causes of action, namely, negligence against the HOA; private nuisance against Enos and Tung; invasion of privacy against Enos and Tung; breach of contract (the covenants, conditions and restrictions [CC&Rs] applicable to Northpoint) against all defendants; breach of equitable servitudes against all defendants; breach of fiduciary duty against the HOA; and declaratory relief against all defendants.*fn3

The Critzers alleged in the second amended complaint that in December 2003, Enos submitted an application to the HOA for approval of the proposed installation of a second story bathroom window, the HOA approved it, and Enos thereafter submitted an application to the City of Cupertino for a building permit which was approved.*fn4 They alleged further that as a result of the installation of the window that is directly east of the Critzers' living room window, Enos was thereby afforded an eye-level, direct view of the Critzers' entire living room to the farthest interior wall of that room, and conversely, the Critzers were thereby afforded a direct view from their living room of Enos's master bathroom. The Critzers claimed that they received no notice (as required under the CC&Rs) of the application for, or approval of, the installation of Enos's window.

The case was assigned out to the Honorable James P. Kleinberg for jury trial on January 28, 2008. The matter was taken off calendar after the terms of a purported settlement were recited on the record two days later (the Settlement).*fn5 In August, 2008, the HOA filed a motion to enforce settlement pursuant to section 664.6. The Critzers opposed the motion. After a hearing, Judge Kleinberg made an order on December 5, 2008, denying the Critzers' request to include specified language in the written agreement and requiring the parties to exchange settlement language. The court ordered further that if the parties could not agree, it would then select one version from competing settlement agreements submitted by the parties. Judge Kleinberg thereafter made a further order that acknowledged a continuing conflict concerning the settlement language, and concluded that the written agreement proposed by the HOA "conforms to and accurately memorializes the terms of the settlement reached by the parties and is consistent with the Court's rulings in this matter... [and would be ordered] binding on all parties as an Order of this Court." The Critzers filed a timely notice of appeal.


I. Notice of Appeal and Appealability

A. Notice of Appeal

Before addressing the HOA's contention that the Critzers' challenge to the order below is not appealable, we discuss a procedural quirk that, although not raised by the parties, must be considered because it is fundamental to the question of whether we may consider this appeal. The notice of appeal filed February 23, 2009, refers to and attaches the court's order filed January 30, 2009 (January 30 order), in which the court found that the HOA's draft of the settlement agreement accurately memorialized the parties' Settlement and declared it binding on all parties as a court order. The problem, however, is that the January 30 order contained the caption and case number for another action involving the parties and the City of Cupertino. It is evident from our review of the superior court's Web site (see that the January 30 order was filed in that related action on January 30, 2009--when that case was pending on appeal before this court (see fn. 4, ante)--but was not filed in this case.*fn6 The trial court apparently became aware of this problem, since it subsequently filed an order in this action, using the correct caption and case number, on February 23, 2009 (February 23 order), which had the same text as the January 30 order except for the preamble: "This Order is identical in content to that Order of January 30, 2009 mistakenly filed in Critzer v. City of Cupertino, No. 1-06-CV-066535." The February 23 order differed from the January 30 order in one other respect in that it failed to attach as an exhibit the HOA's version of the settlement agreement that the court was enforcing. Accordingly, the court filed an amended order on February 25, 2009, that was identical to the February 23 order except for the inclusion of the proper exhibit.

"[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361-363 [court liberally construed notice of appeal containing wrong case number of another case previously dismissed by appellant but properly referring to order being challenged]; Cal. Rules of Court, rule 8.100(a)(2) [appeal notice "must be liberally construed"].)

Clearly, the Critzers' appeal is substantively from the court's order finding the HOA's draft agreement to have accurately memorialized the parties' Settlement and declaring it binding on all parties. The fact that the order at first contained the wrong caption and was filed in a related case in which no motion was pending at the time*fn7 does not alter the fact that it is "reasonably clear what [they were] trying to appeal from" (Luz v. Lopes, supra, 55 Cal.2d at p. 59), and the HOA is neither prejudiced nor misled from our liberal construction of the notice of appeal to embrace the February 23 order correctly ...

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