SMITH v. CLEVELAND OWENS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff W.W. Smith appeals from a November 5, 2009 order granting the motion of defendants Cleveland Owens and Mable Harris for an order permanently enjoining Smith from serving as pastor of the True Faith Missionary Baptist Church of Compton (Church) and denying Smith's request for an evidentiary hearing to address issues litigated and necessarily decided in connection with a prior December 2007 order.   The December 2007 order - which was affirmed on a prior appeal and is now final - enforced a settlement agreement under which Smith agreed to retire as Church's pastor.   We affirm the November 5, 2009 order because the trial court correctly determined that the collateral estoppel doctrine barred Smith's 2009 attempt to relitigate matters already litigated and determined in 2007.

BACKGROUND

A. Settlement Agreement in Redmond Action

The parties reached a settlement agreement in March 2005 which required Smith to retire as Church's pastor on April 6, 2007.   When Smith did not retire, Donald Harris brought a motion to enforce the agreement pursuant to Code of Civil Procedure section 664.6.   The September 2007 hearing on the motion was held over the course of three days and seven witnesses testified, including Smith, Donald Harris, Cleveland Owens, and Barbara Spivey.   In September 2007, the trial court found that Smith breached the settlement agreement but that Donald Harris also breached the agreement by being disruptive at church services.   The court denied Donald Harris's motion without prejudice.

In October 2007, the remaining defendants in the Redmond action filed a motion to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6.¹  Defendants' motion asserted that Donald Harris's breach of the settlement agreement did not preclude the remaining defendants from seeking specific performance of the settlement agreement because each defendant was responsible for his or her own conduct and the moving defendants fulfilled their obligations under the settlement agreement.

At a hearing on the motion on November 20, 2007, Smith's attorney asked for a short continuance to file opposition, and the court granted a continuance to December 6, 2007.   On November 28, 2007, Smith and his supporters filed opposition to defendants' motion, but the only declaration accompanying the opposition addressed the issue of the supporters' request for attorney fees.   The opposition argued that Mable Harris violated the settlement agreement by failing to attend Church functions and to work with Smith, and that Smith's promise to retire was excused by defendants' disruptive behavior and derogatory slurs about Smith.   Smith alleged defendants' “continuing breaches of the settlement agreement,” including defendants' locking the doors to Church on several occasions to prevent Smith and other members of Church from attending services and functions, making derogatory slurs about Smith, and holding private meetings in their homes in violation of Church bylaws.   Smith alleged that Cleveland Owens engaged in disruptive behavior at Church functions on three occasions in March and April 2007.

In reply, defendants stated that Smith's assertions regarding defendants' alleged breaches set out in the opposition papers were not supported by admissible evidence.

At the hearing on defendants' motion, Smith's attorney referred to the September 2007 testimony of Cleveland Owens, Donald Harris, and Smith to support his argument that the moving parties had violated the settlement agreement.   The court asked whether the parties wanted to place anything else on the record, and each of the parties' attorneys responded that each side had nothing further.   The court took the matter under submission.   On December 14, 2007, the court issued an order granting defendants' motion “based upon the grounds set forth in the moving parties' papers,” and ordered that Smith immediately retire as pastor of Church.

Smith appealed from the December 14, 2007 order.   In a prior unpublished opinion, we affirmed the order, rejecting Smith's contention that the trial court deprived him of a fair hearing by not conducting an evidentiary hearing on defendants' alleged “misconduct.”  (Redmond v. Harris (Apr. 28, 2009, B204845) (Redmond appeal).)

Our opinion in the Redmond appeal explained in pertinent part:  “Smith contends that the December 2007 order was not supported by ‘any admissible evidence’ and that he was denied a fair hearing.   We disagree.   The trial court, in ruling on defendants' motion to enforce the settlement in December 2007, discussed and considered the testimony elicited at the hearing on Donald Harris's motion in September 2007, when seven witnesses testified.   In other words, the trial court deemed the September testimony to be part of the evidence submitted in connection with the December 2007 hearing on defendants' motion.   No party objected below to the trial court's consideration of the previous testimony in connection with the hearing in December 2007.   Because Smith did not object to the procedure employed by the trial court, he has forfeited any claim of error on this point.  ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method․  The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver․  Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’  (Doers v. Golden Gate Bridge etc.   Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Accordingly, Smith's assertion that the December 14, 2007 ruling was made without any admissible evidence is without merit.

“The record also belies Smith's assertion that he was denied an opportunity for an evidentiary hearing and thereby denied a fair hearing in December 2007.   Although Smith's written opposition contained a bare ‘Request for Evidentiary Hearing,’ his opposition papers did not identify any particular witness he wished to testify.   At no time during the hearing on December 6, 2007, did Smith proffer any specific evidence or call any witness.   Nor did the trial court deny Smith an opportunity to present oral testimony or offer any additional evidence.   Even now, Smith's appellate briefs fail to identify specific evidence which he was prevented from presenting in December 2007.”   (Redmond appeal, supra, B204845, at pp.   8-9.)

Our decision in the Redmond appeal also noted that the only testimony from the hearing on Donald Harris's motion in September 2007 which was contained in the appellate record was that of Cleveland Owens.  (Redmond appeal, supra, B204845, at p. 3.) Our record in this appeal also fails to contain the testimony of the other six witnesses who testified in September 2007.

Smith petitioned our Supreme Court for review of the decision in the Redmond appeal;  the petition was denied on July 15, 2009 (S173761).  The order of December 14, 2007, granting defendants' motion to enforce the settlement agreement, is now final.

B. Smith Action

In March 2008, pending the appeal in the Redmond action, Smith filed an action in the superior court against Donald Harris and others.  (W.W. Smith v. Donald E. Harris et al.  (Super.  Ct. L.A. County, 2008, No. BC387265 (Smith action).)   In July 2008, the superior court found the Redmond and Smith actions to be related actions.

In August 2008, the trial court sustained without leave to amend defendants' demurrer to the counts in Smith's complaint seeking damages and rescission based on defendants' alleged breach of the settlement agreement.   Three of the six causes of action in Smith's complaint - for defamation, invasion of privacy, and intentional infliction of emotional distress - remain pending.²

C. Owens and Mable Harris's Motion for Permanent Injunction

In August 2009, Cleveland Owens and Mable Harris filed a motion to permanently enjoin Smith from serving as pastor of Church (the Owens/Harris motion).   They argued that because our Supreme Court denied review in the Redmond action, the December 14, 2007 order directing Smith to resign as pastor was then final, and the superior court was revested with jurisdiction to enforce the order.   On August 17, 2009, Smith filed opposition to the Owens/Harris motion.

D. Smith's Motion to set Aside the December 2007 Order

On August 14, 2009, Smith filed a motion to set aside the December 14, 2007 order on the grounds of extrinsic fraud and pursuant to mistake, surprise, and excusable neglect under Code of Civil Procedure section 473.   Both Smith's motion and his opposition to the Owens/Harris motion were supported by the similar arguments and declarations.   Smith filed the declarations of about 30 Church members stating that they supported Smith's remaining as pastor of Church.

Smith maintained that “extrinsic fraud” was committed by defendants because some of the defendants in the Redmond action did not authorize the filing of the October 2007 motion resulting in the December 2007 order enforcing the settlement agreement.   Smith's motion argued that “the December 14, 2007 orders are void and cannot survive because they were obtained and tainted by concealing Stella Matlock's death and the fact that Barbara Spivey and Emma V. Smith never supported the underlying motion,” and that defendants' attorneys “committed attorney misconduct to fraudulently obtain, defend and pursue the December 14, 2007 orders.”

To support the assertion that Spivey did not authorize the filing of the October 2007 motion to enforce the settlement agreement, Smith relied upon Spivey's June 2, 2009 declaration and a June 23, 2009 letter she wrote to her attorneys requesting that her name be removed from all documents associated with the lawsuits against Smith and Church.   Spivey's June 2, 2009 declaration stated that she then wanted Smith to remain as Church's pastor;  she admitted being a signatory to the 2005 settlement agreement, but she did not discuss the 2007 motion to enforce the settlement agreement.

To support the assertion that Stella Matlock did not authorize the filing of the October 2007 motion, Smith submitted a death certificate showing that Matlock died in October 2005.³

To support the assertion that Emma Smith did not authorize the filing the October 2007 motion on her behalf, Smith relied upon two letters:  (1) a June 30, 2009 letter from Emma Smith's son to defendants' lawyers stating that his mother was hospitalized from September 2008 until February 2009, and requesting that her name be removed from all legal documents associated with Church;  and (2) a July 14, 2009 letter from Smith's lawyer to defendants' lawyer in which Smith's lawyer wrote, “We ․ also understand another of your ostensible clients, Emma V. Smith, never authorized enforcement of the settlement agreement․”

At a contested hearing on the motions on September 25, 2009, the court heard testimony from Spivey.   Spivey testified that she executed a declaration dated September 3, 2009, prepared by defendants' attorney, in which she contradicted her June 2, 2009 declaration.   She claimed that some parts of her September 3, 2009 declaration were “miswritten” and she signed it without really looking at it.   Spivey stated that she did not go to Church anymore, she did not want to sue Smith or Church, and she no longer wanted to be involved in this case.   Spivey denied that she breached the settlement agreement and denied disturbing meetings at Church.

Spivey testified that her position at the time of the September 25, 2009 hearing was that she did not want Smith to remain as Church's pastor and “nothing personal to Pastor Smith, but I thought maybe he should honor the agreement that he signed, that we all signed.”

Spivey admitted that she authorized her attorneys (the same attorneys representing the moving parties on the Owens/Harris motion) to file the December 2007 motion and to represent her on Smith's appeal from the December 2007 order (the Redmond appeal).

During argument on the motions, Smith requested a contested hearing on the issues of whether the moving parties, Cleveland Owens and Mable Harris, were in breach of the settlement agreement, maintaining that the issue was never reached in December 2007 and that there has “never been any litigation regarding their behavior,” and “to enforce that [December 2007] order would be a lack of due process in that regard.”   Defendants' attorney argued that Owens and Mable Harris were entitled to enforcement of the December 2007 order and that the appellate court “heard that and entertained that [due process] argument and rejected it․”  Defendants also asserted that the issue of defendants' breach had been decided:  “We're re-litigating issues that have been decided․  They [Smith and his supporters] had their opportunity.   They slept on their rights to do anything about it.”   After argument of counsel, the court took the two motions under submission.

E. September 29, 2009 Order

On September 29, 2009, the court issued a ruling denying Smith's motion to set aside the December 14, 2007 order enforcing the settlement agreement.   But as to defendants' motion to permanently enjoin Smith from serving as pastor of Church, the court requested additional briefing “as to whether or not Reverend Smith is entitled to a contested hearing.   The court would request each party to provide an annotated time line as to this litigation and the relevant rulings both as to this court and the court of appeal.   The court would request relevant law which supports or doesn't support Reverend Smith's position that he is entitled to another hearing on the issue of breach of the settlement agreement.”

F. Additional Briefing and November 5, 2009 Order

Smith argued in his additional briefing that he should not be collaterally estopped from conducting a contested hearing on the issue of whether Mable Harris and Cleveland Owens breached the settlement agreement because that issue “was never reached or fully, fairly or actually litigated at any time.”   Defendants argued in their brief that another contested hearing on the issue of their breach was precluded by the doctrines of collateral estoppel and waiver.   Defendants maintained that Smith had a full and fair opportunity to litigate the issue of their breach in opposition to their October 2007 motion and that Smith waived the point when, having the burden of proof on the issue, he failed to provide evidence supporting an alleged breach by defendants.   In reply, Smith asserted that it was defendants who bore the burden of establishing that they were not in breach of the settlement agreement in order to obtain an order enforcing the settlement agreement under Code of Civil Procedure section 664.6.

On November 5, 2009, the trial court issued an order denying Smith's request for a contested evidentiary hearing for the reasons set out in defendants' papers.   The court granted the Owens/Harris motion to permanently enjoin Smith from serving as pastor of Church.   Smith appealed from the November 5, 2009 order, but not from the September 29, 2009 order denying his motion to set aside the December 2007 order on the ground of extrinsic fraud.

DISCUSSION

Smith contends that the November 5, 2009 order is erroneous because it denied him a due process right to a full and fair contested hearing to determine whether Mable Harris and Cleveland Owens breached the settlement agreement.   He argues that the prior rulings in September and December 2007 have no binding or collateral estoppel effect because the issues of Owens's and Mable Harris's breach “was never reached or fully, fairly or actually litigated.”   We disagree.   The trial court properly applied the collateral estoppel doctrine in denying Smith's request for another hearing because the December 2007 order constitutes a final judgment that necessarily decided the issues of whether Smith, Mable Harris, and Cleveland Owens breached the settlement agreement.

“Generally, ‘ “res judicata” describes the preclusive effect of a final judgment on the merits.   Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.   Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.”  [Citation].’  [Citation.]”  (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)  “Claim preclusion applies when ‘(1) the decision in the prior proceeding is final and on the merits;  (2) the present proceeding is on the same cause of action as the prior proceeding;  and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.’  [Citation.]  Upon satisfaction of these conditions, claim preclusion bars ‘not only ․ issues that were actually litigated but also issues that could have been litigated.’   [Citation.]”  (Ibid.)

The doctrine of collateral estoppel is one aspect of the concept of res judicata.  (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507, fn. 5.) Collateral estoppel, or issue preclusion, precludes relitigation of issues actually argued and necessarily decided in prior proceedings.   (Id. at pp.   1507-1508.)  “To avoid confusion, the United States Supreme Court [in Taylor v. Sturgell (2008) 553 U.S. 880, 892 & fn.   5 [128 S.Ct. 2161]] has recently opted to use only the terms ‘claim preclusion’ and ‘issue preclusion,’ rather than ‘res judicata’ and ‘collateral estoppel.’   [Citation.]  However, California usage ․ is to use the term ‘collateral estoppel’ to refer to issue preclusion and ‘res judicata’ to refer to claim preclusion.  [Citations.]”  (Johnson, at p. 1507, fn. 5.)

Collateral estoppel bars relitigation of an issue decided at a previous proceeding if (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated;  (2) the previous proceeding resulted in a final judgment on the merits;  and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding.  (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 148.)   It is implicit in the three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding;  an issue is actually litigated when it is properly raised, by the pleadings or otherwise, is submitted for determination, and is determined.  (Ibid.) “ ‘[A] former judgment is not a collateral estoppel on issues which might have been raised but were not;  just as clearly, it is a collateral estoppel on issues which were raised, even though some factual matters or legal arguments which could have been presented were not.  [Citations.]’ ”  (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401 (Murphy ).)   Stated another way, a raised issue includes “any legal theory or factual matter which could have been asserted in support of or in opposition to the issue which was litigated.”   (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1566.)

“The ‘ “necessarily decided” ’ requirement generally means only that the resolution of the issue was not ‘ “entirely unnecessary” to the judgment in the initial proceeding.’  [Citation.]”  (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 83;  accord, Murphy, supra, 164 Cal.App.4th at p. 400.)   And an issue may have been “necessarily decided” based on a failure of pleading or of proof as well as on the sustaining of the burden of proof.  (Murphy, at p. 401.)

Even if the foregoing minimum requirements are met, we must “ ‘[look] to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting.’ ”  (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.)   Those public policies are (1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments;  and (3) to provide repose by preventing vexatious litigation.  (Murphy, supra, 164 Cal.App.4th at p. 404.)

The trial court's application of the collateral estoppel doctrine is reviewed de novo.  (Roos v. Red (2005) 130 Cal.App.4th 870, 878.)

A. Identity of Party and Final Judgment on the Merits Requirements

As Smith was a party to both the prior December 2007 proceeding and the 2009 proceedings, there is no question that the party requirement for collateral estoppel is met.

The collateral estoppel requirement that there be a prior final judgment on the merits is satisfied because the December 2007 order, rendered in a proceeding under section 664.6, constitutes a final judgment on the merits.

“Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.  [Citation.]  It is for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement.  [Citation.]  In making that determination, ‘the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement.  [Citation.]  Trial judges may consider oral testimony or may determine the motion upon declarations alone.  [Citation.]’ ”  (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)  “The trial court's factual findings on a motion to enforce a settlement pursuant to section 664.6 ‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’   [Citation.]”  (Ibid.) Accordingly, section 664.6 provides a noticed motion procedure for the entry of a judgment based upon a settlement;  a summary judgment motion is not needed and the standards for summary judgment need not be met.  (Casa de Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1188-1189.)

If the effect of an order granting a motion under section 664.6 is to determine finally the rights of the parties in the action, the order is tantamount to a judgment.  (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182-1183.)   A judgment entered in accordance with a settlement agreement is as conclusive a bar as a judgment rendered after trial;  it qualifies as final and on the merits for purposes of the res judicata doctrine.  (Citizens for Open Access etc.   Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065-1066, 1067.)

B. “Necessarily Decided” Requirement

The December 2007 order necessarily decided the issue of the parties' respective breaches or non-breaches of the settlement agreement.   The record shows that the issues of whether Smith and defendants breached the settlement agreement were raised by both sides in their written papers and orally argued at the hearing on the December 2007 motion.   The trial court granted the motion on the grounds set out in the defendants' moving papers, which raised the issues of Smith's breach of the settlement agreement and defendants' compliance with their obligations under the agreement.   The only reasonable interpretation of the record is that the trial court decided the issues of breach of the settlement agreement in December 2007.

That the parties may have disagreed as to which side had the burden of proof on the issues does not obviate the conclusion that the issues were necessarily decided, as the trial court may decide an issue on the ground of a failure of proof as well as the ground of the sustaining of the burden of proof.   (Murphy, supra, 164 Cal.App.4th at p. 401.)   And whether the trial court correctly allocated the burden of proof in December 2007 is not an issue which is before us because the doctrine of collateral estoppel “may apply even where the issue was wrongly decided in the first action.”  (Roos v. Red, supra, 130 Cal.App.4th at p. 887 [an erroneous judgment is as conclusive as a correct one].)

C. Fairness Exception

Smith fails to persuade us that the application of collateral estoppel here is unfair and does not serve the public policies that underlie the doctrine.

“[W]here, as here, the party to be estopped was a party who participated in the earlier proceeding, due process requires that this party must have had an adequate incentive to fully litigate the issue in the prior proceeding [citation], and must have had a fair opportunity to pursue his claim the first time.”  (Murphy, supra, 164 Cal.App.4th at p. 404.)

Smith does not claim that he did not have an adequate incentive to litigate fully the issue of the parties' breach of the settlement agreement at the time of the December 2007 hearing, and his interest at that time is identical to his interest at the time of the 2009 motions.   The record also shows that Smith had a fair opportunity to litigate the issues of breach of the settlement agreement in 2007.   Smith's opening brief refers to various colloquies between the trial court and the attorneys in 2007 and in 2009, but does not explain or establish that the motion procedures did not afford him “a fair opportunity to pursue his claim the first time” in December 2007.  (Murphy, supra, 164 Cal.App.4th at p. 404.)

Defendants filed their motion to enforce the settlement agreement in October 2007.   In November 2007, the trial court granted a continuance of defendants' motion to afford Smith an opportunity to properly respond to the motion.   Smith, through his attorney, filed written opposition and appeared at the hearing in December 2007.   At the conclusion of the hearing, the trial court asked the parties if they wanted to place anything else on the record, and each side had nothing further.   The court then took the matter under submission and issued a ruling soon thereafter.   Smith intimates that if he had been given another opportunity to litigate the matters raised on the motion, he would have been able to offer more persuasive evidence, but “ ‘[a]n exception to collateral estoppel cannot be grounded on an alleged discovery of more persuasive evidence.   Otherwise there would be no end to litigation.’   [Citation.]”  (Roos v. Red, supra, 130 Cal.App.4th at p. 888.)   And Smith does not establish that the purported evidence of defendants' breach that he would like to present at a new evidentiary hearing could not have been presented in December 2007.

Smith also maintains that he was denied due process because the trial court did not adjudicate the section 664.6 motion under summary judgment principles.   But the cases cited by Smith deal with nonstatutory “speaking motions” or predate the enactment of section 664.6 in 1981.  “[W]hat formerly was a nonstatutory ‘speaking’ motion is now authorized by statute․”  (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.)

Smith's briefs fail to persuade us that the application of collateral estoppel will not advance the underlying public policies of promoting judicial economy, promoting consistent judgments, and preventing vexatious litigation.   Accordingly, we affirm the November 5, 2009 order.

Respondents filed a motion asserting the appeal is frivolous and seeking $14,515 in sanctions.   We do not consider sanctions warranted under the standards set out in In re Marriage of Flaherty (1982) 31 Cal.3d 637.

DISPOSITION

The November 5, 2009 order is affirmed.   Respondents' motion for sanctions is denied.   Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Code of Civil Procedure section 664.6 (section 664.6) provides:  “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court 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.   If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”.  FN1. Code of Civil Procedure section 664.6 (section 664.6) provides:  “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court 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.   If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

FN2. In an August 29, 2008 order in the Smith action, the trial court granted Donald Harris's special motion to strike Smith's cause of action for abuse of process alleging that Harris called the police to have them enforce the December 14, 2007 order.   Smith appealed from the order striking the abuse of process claim, and we affirmed the trial court's order striking the claim.  (Smith v. Harris (July 17, 2009, B211851) [nonpub. opn.].)In setting out the background facts of the proceedings, the August 29, 2008 order characterized the December 2007 order in the Redmond action as including a finding that Donald Harris's codefendants were non-breaching parties of the settlement agreement.   In December 2008, the trial court, on Smith's motion, set aside language in the August 29, 2008 order characterizing the December 2007 order in the Redmond action as including findings that Donald Harris's codefendants were non-breaching parties to the settlement agreement.   The trial court's December 2008 ruling acknowledged that the August 29, 2008 order mischaracterized the Redmond action proceedings because a finding that the other defendants were non-breaching parties was not expressly reflected in the record of the proceedings.   Accordingly, in December 2008 the trial court struck that portion of the August 29, 2008 order stating that the court had previously found the other defendants to be non-breaching parties.   In its August 29, 2008 order, the court in the Smith action was not addressing the issue of collateral estoppel.In response to a cross-complaint of Donald Harris and Owens, Smith filed a cross-complaint against them containing claims for abuse of process and malicious prosecution.   The claims in Smith's cross-complaint for abuse of process and malicious prosecution were stricken, and we affirmed that order on Smith's appeal.  (Smith v. Harris (Nov. 19, 2009, B214365) [nonpub. opn.].)In February 2010, the cross-complaint of Harris and Owens was stricken as a discovery sanction..  FN2. In an August 29, 2008 order in the Smith action, the trial court granted Donald Harris's special motion to strike Smith's cause of action for abuse of process alleging that Harris called the police to have them enforce the December 14, 2007 order.   Smith appealed from the order striking the abuse of process claim, and we affirmed the trial court's order striking the claim.  (Smith v. Harris (July 17, 2009, B211851) [nonpub. opn.].)In setting out the background facts of the proceedings, the August 29, 2008 order characterized the December 2007 order in the Redmond action as including a finding that Donald Harris's codefendants were non-breaching parties of the settlement agreement.   In December 2008, the trial court, on Smith's motion, set aside language in the August 29, 2008 order characterizing the December 2007 order in the Redmond action as including findings that Donald Harris's codefendants were non-breaching parties to the settlement agreement.   The trial court's December 2008 ruling acknowledged that the August 29, 2008 order mischaracterized the Redmond action proceedings because a finding that the other defendants were non-breaching parties was not expressly reflected in the record of the proceedings.   Accordingly, in December 2008 the trial court struck that portion of the August 29, 2008 order stating that the court had previously found the other defendants to be non-breaching parties.   In its August 29, 2008 order, the court in the Smith action was not addressing the issue of collateral estoppel.In response to a cross-complaint of Donald Harris and Owens, Smith filed a cross-complaint against them containing claims for abuse of process and malicious prosecution.   The claims in Smith's cross-complaint for abuse of process and malicious prosecution were stricken, and we affirmed that order on Smith's appeal.  (Smith v. Harris (Nov. 19, 2009, B214365) [nonpub. opn.].)In February 2010, the cross-complaint of Harris and Owens was stricken as a discovery sanction.

FN3. Although the October 2007 motion to enforce the settlement agreement listed Stella Matlock among the moving parties, in November 2007, Smith's former attorneys filed opposition to the motion stating that “[b]efore the present motion, Stella Matlock passed away and is no longer a party to the action.”   Smith's former attorneys were aware that Matlock was no longer a party to the action.   Accordingly, our opinion in the Redmond appeal stated that the moving parties on the October 2007 motion to enforce the settlement agreement were only Mable Harris, Cleveland Owens, Barbara Spivey, and Emma Smith.  (Redmond appeal, supra, B204845, at p. 3.).  FN3. Although the October 2007 motion to enforce the settlement agreement listed Stella Matlock among the moving parties, in November 2007, Smith's former attorneys filed opposition to the motion stating that “[b]efore the present motion, Stella Matlock passed away and is no longer a party to the action.”   Smith's former attorneys were aware that Matlock was no longer a party to the action.   Accordingly, our opinion in the Redmond appeal stated that the moving parties on the October 2007 motion to enforce the settlement agreement were only Mable Harris, Cleveland Owens, Barbara Spivey, and Emma Smith.  (Redmond appeal, supra, B204845, at p. 3.)

ROTHSCHILD, J. CHANEY, J.