Filed 4/6/20 Vasquez v. Doe 1 CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LEONOR VASQUEZ,

Plaintiff and Appellant,

v.

DOE 1 et al.,

Defendants and Respondents.

B296588

(Los Angeles County

Super. Ct. No. MC025512)

APPEAL from an order of the Superior Court of Los Angeles County, Randolph A. Rodgers, Judge. Affirmed.

The Zalkin Law Firm and Devin M. Storey for Plaintiff and Appellant.

Derryberry & Associates, R. Steven Derryberry and Kimberly R. Rose-McCaslin for Defendants and Respondents.

_________________________

INTRODUCTION

Leonor Vasquez filed this action against her church and two individual members of the church for sexual battery, intentional infliction of emotional distress, and negligence. Shortly before trial, one of the two individual defendants died. Vasquez subsequently reached a settlement with the other two defendants that included a dismissal of the action with prejudice.

The individual settling defendant and the estate of the non-settling defendant filed a motion asking the court to enforce the settlement and to dismiss the action with prejudice. The trial court granted the motion, and Vasquez appealed. Because in the settlement Vasquez agreed to dismiss the action, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Vasquez Sues Her Church and Two of Its Members

According to the allegations in her complaint, Vasquez was born in 1982 and was raised in a “practicing Christian family.” She began attending the Lancaster First Assembly of God in 1995. Michael and Sharon Walsh were also members of the church and served as youth group leaders. Sharon also worked at the church as a receptionist.

Vasquez was active in the church. She attended services, participated in youth group and volunteer activities, was a member of the “puppet ministry,” and went to camp. Vasquez also went on mission trips, which is where she first met Michael.

In late 1997 or early 1998 Vasquez’s mother moved to Germany with her boyfriend. Because Vasquez did not get along with her mother’s boyfriend, she decided to stay in California. When Sharon and Michael learned Vasquez needed a place to live, they invited her to live with them. Although Vasquez did not know them well, she accepted their offer because of their “good standing” in, and “representations of,” the church.

Shortly after Vasquez moved in with the Walshes, Michael began touching her inappropriately. At first, Michael would only rub her legs, but he soon began scratching her back, rubbing her shoulders, holding her down and tickling her, fondling her breasts, and making sexual comments about her “breast size” and “breast development.” Michael also measured her breasts and waist with a measuring tape, asked her about her sexual history, and asked whether she shaved her vaginal area. While on church-sponsored trips, Michael would rub her legs, upper thigh, and crotch. Vasquez alleged that, although the church and Sharon knew in 1999 about Michael’s conduct, they did not report the abuse to law enforcement and that Michael continued to molest her.

In late 1999 or early 2000, Vasquez moved with the Walshes to Tehachapi. There, Michael continued to molest Vasquez and often touched her vagina and vaginal area under her clothing. Vasquez moved out in 2001. She and her boyfriend met with the lead pastor of the church, who told them Michael had admitted to sexually molesting Vasquez, but the church did not report the abuse to law enforcement.

In June 2015 Vasquez filed this action against the church, Michael, and Sharon. Vasquez alleged causes of action for negligence, negligent supervision and failure to warn, negligent hiring and retention, sexual battery, intentional infliction of emotional distress, and violation of Civil Code sections 51.7 and 52.4.

B. Vasquez Settles with Sharon and the Church

In 2017 the parties began discussing settlement. Michael died on July 6, 2017, two weeks before trial was scheduled to begin. After Michael died, the church’s insurer agreed to indemnify Sharon as a former employee of the church and offered, on behalf of both the church and Sharon, “a greater settlement proposal to [Vasquez] than would have been possible if negotiated separately.” Because Michael, who was never an employee of the church, had died, and no one had yet opened a probate matter for his estate, Michael was not included in the settlement.

Vasquez, the church, and Sharon eventually reached an agreement. On August 25, 2017 counsel for the church sent a letter to counsel for Vasquez enclosing a draft settlement agreement that included a release and a proposed request for dismissal. Two provisions of the draft settlement agreement are particularly relevant to this appeal. First, paragraph 5 of the draft settlement agreement stated: “Concurrently with the execution of this Settlement Agreement and Release, counsel for the Plaintiff has delivered to counsel for Defendant an executed Dismissal with prejudice of the suit described in Recital A above. The Plaintiff has authorized [her] attorneys to execute this Dismissal on [her] behalf and hereby authorize counsel for Defendant to file said Dismissal with the Court and enter them as matters of record.” Recital A, to which paragraph 5 referred, stated: “This Settlement Agreement and Release covers any and claims [sic] that were included or could have been included in any complaint filed in Case No. MC025512, Leonor Vasquez v. Defendant Doe 1, et al., Superior Court of the State of California, County of Los Angeles, Michael Antonovich Antelope Valley Courthouse.” Recital B stated: “The Parties desire to enter into this Settlement Agreement and Release in order to provide for certain payments in full and discharge of all claims which are or might have been the subject of the aforesaid suit on the terms and conditions set forth herein.”

The release was in paragraph 1 of the draft agreement. It stated: “In consideration of the payments called for herein, the Plaintiff completely releases and forever discharges Defendants . . . from any and all past, present or future claims, demands, obligations, actions, causes of action . . . . This release, on the part of the Plaintiff shall be a fully binding and complete settlement between the Plaintiff, Defendants, Insurer, and all other persons, firms and corporations whatsoever save only the executory provisions of this Settlement Agreement and Release.” The draft settlement agreement also contained non-disparagement and confidentiality provisions.

The proposed request for dismissal stated it was a request for dismissal of the “[e]ntire action of all parties and all causes of action.” In his letter accompanying the draft settlement agreement, counsel for the church said he would send a check for $250,000 as soon as he received the signed release and request for dismissal.

On August 31, 2017 counsel for Vasquez responded to counsel for the church’s August 25, 2017 letter and stated he had some “concerns as to . . . some of the language therein.” Concerned the language of the release in paragraph 1 “could be interpreted as releasing” Michael, counsel for Vasquez stated: “Repeatedly throughout the Agreement, terms are used vaguely regarding who is specifically [a] party to the Agreement. As [Michael’s estate] is not, as of yet, party to the Agreement, Plaintiff has provid[ed] some clarifying language to ensure that the Agreement only applies to the ‘Undersigned Parties.’” Counsel for Vasquez proposed, in “a ‘red-lined’ version of” the draft settlement agreement, to add to recital B the words “regarding and limited to the undersigned parties” after the language “full settlement and discharge of all claims.” Counsel for Vasquez also proposed two corrections to typographical errors in recital A (including adding “all” between “any and” and “claims”), but he did not propose any changes to recital A, paragraph 5, or the request for dismissal. Counsel for Vasquez also made some minor changes to the non-disparagement clause and added to the confidentiality provision that “the Parties hereby acknowledge that no provision within this Agreement prevents the Parties from disclosing the underlying factual information related to the Lawsuit.”

Counsel for Vasquez also wanted to make sure the release in paragraph 1 was limited to the three parties to the settlement agreement. Therefore, he proposed adding to paragraph 1 the language “the undersigned” after the phrase “the Plaintiff completely and forever discharges” and before “Defendants.” Counsel for Vasquez also proposed adding language to exclude from the release “any Defendant and Insurer not party to the Agreement.”

On October 27, 2017 the settling parties and their attorneys signed a revised settlement agreement that included counsel for Vasquez’s revisions. Neither Michael nor a representative of his estate was a signatory to the settlement agreement.

C. The Trial Court Grants the Church’s Motion for a Good Faith Settlement Determination

On December 14, 2017 the church filed a notice of settlement and application for a good faith settlement determination under Code of Civil Procedure section 877.6, subdivision (a)(2). The church stated that it had reached a settlement with Vasquez and that, “[p]ursuant to the settlement, plaintiff’s claims against [the church] in the above-entitled action will be dismissed with prejudice pursuant to the confidential terms of the settlement agreement.” Although the church did not attach a copy of the settlement agreement to the motion (because of the agreement’s “confidential terms”), counsel for the church stated in his declaration that Sharon “was specifically incorporated by name in the settlement agreement and release relating to the settlement between [the church] and [Vasquez] and that [Michael] is deceased. There are no other active defendants known of at this time that remain in this litigation.”

In January 2018, before the trial court ruled on the motion for a good faith settlement determination, Vasquez filed a request for dismissal of the action with prejudice as to the church and Sharon only. On July 18, 2018 the trial court granted the motion for a good faith settlement determination.

D. Michael’s Estate Becomes a Party to This Action

Meanwhile, because no one had filed a petition to open a probate matter for Michael’s estate, on April 2, 2018 Vasquez filed in the probate court a petition under Probate Code sections 8540-8547 for letters of special administration and a creditor’s claim. On May 2, 2018 Sharon filed a petition for letters of special administration. The probate court granted Sharon’s petition to become the special administrator, and on September 18, 2018 Sharon rejected Vasquez’s claim.

Back in the trial court, Vasquez filed in October 2018 a motion to substitute the personal representative of Michael’s estate as a defendant in place of Michael, claiming that her “causes of action against Decedent survive his death.” Sharon opposed the motion, arguing Vasquez was judicially estopped from “seeking relief from the Estate of [Michael] based on the terms of the settlement agreement and release between the parties.” Sharon argued that the settlement agreement “provided for the complete dismissal of the entire action.” The trial court granted the motion on November 27, 2018.

E. The Trial Court Grants Sharon’s Motion To Enforce the Settlement Agreement

In January 2019 Sharon, individually and as the administrator of Michael’s estate, filed a motion under Code of Civil Procedure section 664.6 to enforce the settlement agreement and to dismiss the entire action. Relying on paragraph 5 of the settlement agreement, Sharon argued the settlement agreement, although it did not release Vasquez’s claims against all defendants, provided for a dismissal of the entire action against all defendants. Recognizing the release was limited to the signatories to the settlement agreement, Sharon explained in her supporting declaration she was willing to exclude her late husband from the release if the pending litigation was resolved.

In her opposition to the motion, Vasquez argued that the settlement agreement was limited to the “undersigned parties,” as set forth in recital B of the agreement, and that, to the extent there was “an ambiguity caused by discordant terms,” the extrinsic evidence showed the parties never intended Michael’s estate “both to receive, and not receive, the benefit of the release.” Vasquez also submitted a declaration from counsel for the church, stating that “from [his] perspective there was no intention that [Michael] was a settling party or entitled to release.” In reply, Sharon explained there was nothing contradictory about limiting the release to the signatory defendants while requiring Vasquez to dismiss the entire action against all defendants.

The trial court granted the motion. The court stated that, “having reviewed the Settlement Agreement, [the court] finds that the terms are clear on their face” and that “[n]owhere does this agreement to dismiss the instant action with prejudice limit the dismissal to only certain parties, but contemplates the dismissal of ‘any and all claims’ included in the instant action without limit.” The trial court also reviewed the extrinsic evidence submitted by the parties and concluded “that all of the evidence provided appears to be consistent with Plaintiff and Defendants using the agreement as a means to settle the entire dispute, with the exception of not securing any releases for new claims.” Vasquez timely appealed from the trial court’s order.

DISCUSSION

A. Applicable Law and Standard of Review

“‘A settlement agreement is simply a contract.’” (Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 118; see Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789 [“‘A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.’”].) As with all contracts, “‘[t]he fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.’” (Terrell v. State Farm General Ins. Co. (2019) 40 Cal.App.5th 497, 503; accord, Deere & Co. v. Allstate Ins. Co. (2019) 32 Cal.App.5th 499, 513; see Civ. Code, § 1636.) “‘“Such intent is to be inferred, if possible, solely from the written provisions of the contract.”’” (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390; see United Farmers Agents Assn., Inc. v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 495; see also Civ. Code, § 1639.)

“It is the parties’ expressed objective intent, not their unexpressed subjective intent, that governs.” (Koenig v. Warner Unified School Dist. (2019) 41 Cal.App.5th 43, 58; accord, J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 12.) “‘When the contract is clear and explicit, the parties’ intent is determined solely by reference to the language of the agreement.’” (Marzec v. Public Employees’ Retirement System (2015) 236 Cal.App.4th 889, 910; see Civ. Code, § 1638 [the “language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity”].) “‘“It is the outward expression of the agreement, rather than a party’s unexpressed intention, which the court will enforce.” [Citation.] Thus, in interpreting the [agreement], we are not concerned as much with what the parties might tell us they meant by the words they used as with how a reasonable person would interpret those words.’” (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1188; see M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1530; Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1159.)

Although extrinsic evidence is inadmissible to “vary or contradict the terms of an integrated written instrument” (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 820, fn. 8; see Code Civ. Proc., § 1856, subd. (a)), “‘[e]xtrinsic evidence is admissible . . . to interpret an agreement when a material term is ambiguous.’” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432; see City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395; see also Code Civ. Proc., § 1856, subd. (g).)

“When the meaning of the words used in a contract is disputed, the trial court engages in a three-step process. First, it provisionally receives any proffered extrinsic evidence that is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citations.] If, in light of the extrinsic evidence, the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid the court in its role in interpreting the contract. [Citations.] When there is no material conflict in the extrinsic evidence, the trial court interprets the contract as a matter of law. [Citations.] This is true even when conflicting inferences may be drawn from the undisputed extrinsic evidence [citations] or that extrinsic evidence renders the contract terms susceptible to more than one reasonable interpretation.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126 1127, fn. omitted; see Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 651-652.) The “interpretation of a contract is a question of law subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.” (Western Heritage Ins. Co. v. Frances Todd, Inc. (2019) 33 Cal.App.5th 976, 983; see Johnson v. Greenelsh (2009) 47 Cal.4th 598, 604; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)

B. The Settlement Agreement Required Vasquez To Dismiss This Action

Each side argues the language of the settlement agreement is unambiguous and supports its interpretation of the agreement. Vasquez argues that the “plain language of the agreement, read in context of the entire agreement, unambiguously evidenced the parties’ intent not to release [Michael] from the litigation” and that this “appeal is easily resolved by a plain reading of the language in the Agreement.” Sharon, individually and as the administrator of Michael’s estate, agrees that “the intent of the parties [is] demonstrated by the clear language of the Agreement.” The trial court came to the same conclusion. As do we. And the plain language of the settlement agreement supports Sharon’s interpretation, not Vasquez’s.

Paragraph 5 of the settlement agreement states that Vasquez agreed to a “[d]ismissal with prejudice of the suit described in Recital A above.” Recital A, in turn, describes the suit as “any and all claims that were included or could have been included in any complaint filed in Case No. MC025512, Leonor Vasquez v. Defendant Doe 1, et al.” These two provisions clearly and explicitly state Vasquez agreed to dismiss the entire action. Unlike recital B, recital A does not include any language limiting its subject matter to the parties to the agreement. (See Civ. Code, § 1641 [the “whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other”]; Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1027 [“the meaning of a contract must be derived from reading the whole of the contract, with individual provisions interpreted together”].)

Vasquez argues that paragraph 5 refers to, or at least should be interpreted as incorporating, recital B, which, as counsel for Vasquez requested, limits the release “to the undersigned parties.” But paragraph 5 provides for dismissal of the lawsuit described in recital A, not recital B. Paragraph 5 makes no reference to recital B. The parties could have included a reference in paragraph 5 to recital B, but they did not. We cannot revise the terms of the settlement agreement to say what it does not say. (See Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2014) 229 Cal.App.4th 549, 569 [“‘Courts will not add a term about which a contract is silent.’”]; Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1324 [“‘We do not have the power to create for the parties a contract that they did not make and cannot insert language that one party now wishes were there.’”]; see also Machado v. Myers (2019) 39 Cal.App.5th 779, 792 [in ruling on a motion under Code of Civil Procedure section 664.6, “‘“[i]t is not the province of the court to add to the provisions [of a settlement agreement] [citations]; to insert a term not found therein [citations]; or to make a new stipulation for the parties”’”].)

Vasquez points out that the release excluded “any Defendant and Insurer not party to the Agreement” and that neither Michael nor his estate was a party to the agreement. Vasquez is correct that the parties drafted the language of the release to exclude Michael (who had died) and his estate (for which the probate court had not yet appointed an administrator). The language of the provision requiring dismissal of the action, however, is not so limited. The parties knew how to limit the scope of a clause or carve out a party or claim from a provision. They included such a limitation for the release; they did not for the dismissal. (See Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 132 [“the parties knew how to draft plain language in an agreement” to extend the duration of a warranty, and “by failing to do so the parties did not intend to extend the limitations period”]; Wolf v. Walt Disney Pictures & Television, supra, 162 Cal.App.4th at p. 1135 [“When the parties intended to identify ‘subsidiaries,’ they knew how to do so.”].)

Vasquez repeatedly argues that the parties did not include Michael or his estate in the release and that Vasquez did not release her claims against Michael or his estate. For example, Vasquez asserts that “the terms of the Settlement Agreement clearly evince the Parties’ intent to release only [the church] and [Sharon] from the litigation,” that the amendments to the draft settlement agreement show Michael “was not entitled to a release,” that a “practical construction of the settlement agreement favors Vasquez’s interpretation that [Michael] was not intended to be released,” and that Michael “is not entitled to a release as a matter of law.” All true. Indeed, Sharon concedes Vasquez did not release her claims against Michael or his estate, emphasizing that “at no point has [Sharon] asserted that [Michael] was released from all claims by [Vasquez]” and that “the terms of the Settlement Agreement did not provide a release for [Michael].”

Contrary to Vasquez’s contention, however, limiting the release to certain parties or claims was not inconsistent with dismissing an action that includes those parties and claims. Vasquez may still be able to bring claims against Michael’s estate (which explains why, as we will discuss, counsel for Michael made offers to settle Vasquez’s claims after Vasquez settled with the other defendants). Sharon concedes that where, “as here, a plaintiff dismisses a case with prejudice without granting a release of claims, the plaintiff remains free to file suit for a different cause of action against the same defendant,” that Vasquez is “free to prosecute any claims which she may have had against [Michael], just not as they are set forth in the present action,” and that Vasquez is “free to make any remaining claims against [Michael’s] estate in whatever capacity allowable by law.” Again, all true. Of course, if Vasquez files an action against Michael’s estate, Sharon as the administrator may be able to argue such an action is barred by claim or issue preclusion. (See Legendary Investors Group No. 1, LLC v. Niemann (2014) 224 Cal.App.4th 1407, 1411 [“[r]es judicata and collateral estoppel do generally preclude relitigating the same claims and issues after a dismissal with prejudice,” although the parties in a settlement agreement may “‘limit the legal effect of a dismissal with prejudice so that it would not constitute a retraxit and affect their rights in a later pending action’”]; Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533 [a “dismissal with prejudice following a settlement constitutes a final judgment on the merits” and “‘is determinative of the issues in the action and precludes the dismissing party from litigating those issues again’”]; Manning v. Wymer (1969) 273 Cal.App.2d 519, 525 [a dismissal with prejudice has the same effect as a common law retraxit and is equivalent to a verdict and judgment on the merits in favor of the defendant].) Sharon may also be able to argue Vasquez’s claims against Michael’s estate are barred by an applicable statute of limitations. (See, e.g., Code Civ. Proc., § 340.1; Prob. Code, § 9100.) But Sharon will not be able to argue the release in the settlement agreement bars those claims.

C. The Extrinsic Evidence Supports Sharon’s Interpretation

Although Vasquez contends (incorrectly) the unambiguous language of the settlement agreement supports her interpretation without considering extrinsic evidence, she also contends the undisputed extrinsic evidence supports her interpretation. Vasquez argues “the settlement negotiations leading up to the agreement[ ] and all subsequent action support [her] position that [Michael] was not entitled to a release.”

The extrinsic evidence, to the extent we should consider it, does not support Vasquez’s interpretation. For example, Vasquez argues that “[t]he clearest and most direct evidence of the intention of the parties” to limit the dismissal of the action to the causes of action against the church and Sharon (but not Michael) “is the declaration submitted to the trial court by counsel for [the church].” In that declaration, counsel for the church stated his belief that the parties to the settlement agreement did not intend to settle with or release Michael. But the subjective, unexpressed belief of counsel for the church concerning what his client and Sharon intended “‘“is irrelevant to contract interpretation.”’” (Zissler v. Saville (2018) 29 Cal.App.5th 630, 644; accord, G&W Warren’s, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 575; see Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 620, fn. 18 [“‘evidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language’”].) And even the (inadmissible) statements by counsel for the church about his undisclosed intent were consistent with Sharon’s interpretation that, although the settlement did not release Vasquez’s claims against Michael, it required her to dismiss this action in its entirety. Counsel for the church stated he agreed to exclude Michael from the settlement agreement because he believed Michael was not a settling party and was not being released, none of which Sharon disputes. Counsel for the church did not state in his declaration he subjectively believed the settlement agreement did not require Vasquez to dismiss the entire action.

Vasquez also asserts that the parties to the settlement agreement did not intend she would dismiss her causes of action against Michael’s estate because, at her attorney’s request, the agreement “included confidentiality and non-disparagement provisions that expressly permitted [her] and her attorneys to disclose confidential information in accordance with the ‘process of law,’ because of a concern that the unsettled portions of the case could go to trial and Vasquez may need to testify.” That is not the reason counsel for Vasquez gave in his August 31, 2017 letter for adding this language. Counsel for Vasquez stated he was concerned about Code of Civil Procedure section 1002, subdivision (e), which provides that, in certain civil actions involving sexual assault against a minor, including a provision “in a settlement agreement that prevents the disclosure of factual information related to the action . . . may be grounds for professional discipline by the State Bar of California.” Counsel for Vasquez advised counsel for the church that he would “not violate the terms” of this statute and that he was “duty bound not to advise Plaintiff to sign a confidentiality provision related to the underlying facts of this case.” Counsel for Vasquez added that any such confidentiality provision “would be futile anyways as the underlying facts have already been disclosed.” Counsel for Vasquez did not insist on this language in the confidentiality provision because he anticipated a trial against Michael in this action.

Vasquez contends the parties’ actions after the settlement agreement show they did not intend to dismiss Vasquez’s complaint against Michael. “‘[W]hen a contract is ambiguous, a construction given to it by the acts and conduct of the parties with knowledge of its terms, before any controversy has arisen as to its meaning, is entitled to great weight, and will, when reasonable, be adopted and enforced by the court.’” (Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280, 300; see In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 52.) In particular, Vasquez asserts that, after she settled with the church and Sharon, counsel for Michael offered to settle Vasquez’s claim against the estate for $18,000.

Counsel for Michael, who had not been involved in the settlement discussions up to that point, made this settlement offer before Sharon had opened a probate for Michael’s estate and before the settling parties signed the settlement agreement on October 27, 2017. More important, that counsel for Michael continued to negotiate with counsel for Vasquez is entirely consistent with the language of the settlement agreement, which provided that, although Vasquez had to dismiss this action, Vasquez was not releasing her claims against Michael. Counsel for Michael was trying to settle, for a relatively modest amount, claims that the settlement agreement required Vasquez to dismiss but not release.

Vasquez also argues that the church’s motion for a good faith settlement determination is evidence that Michael’s estate was not part of the settlement because if “all the Parties would have settled . . . there would have been no reason whatsoever for the good faith determination.” But all the parties did not agree to settle; only Vasquez, the church, and Sharon did. Moreover, a determination the settlement was in good faith would protect the church from a cross-complaint or complaint for indemnity or contribution from Michael’s estate in the event Vasquez filed a new action on an unreleased claim. (See Code Civ. Proc., § 877.6, subd. (c) [“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.”]; LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 877, fn. 7 [“a defendant’s good faith settlement has other effects, including ‘cut[ting] off the right of other defendants to seek contribution or comparative indemnity from the settling defendant’”].)

Vasquez also relies on the fact that, when counsel for the church filed the request to dismiss the action against only two of the three defendants, none of the other defense attorneys objected that the dismissal did not include all three defendants. But Vasquez ignores the fact that, when counsel for the church sent counsel for Vasquez the first draft of the settlement agreement, he included a request for dismissal of the entire action. Counsel for Vasquez, in his August 31, 2017 letter to counsel for the church, did not object to the form of the request for dismissal, nor did he state the request for dismissal should only dismiss the complaint against the church and Sharon. Unlike some of the inadmissible extrinsic evidence on which Vasquez relies, the transmission of a request for dismissal with prejudice of the entire action was an “outward expression” (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 98) of the parties’ intent that, consistent with the language of the settlement agreement, the dismissal should be of the entire action.

It is true, as Vasquez points out, counsel for Michael did not immediately object when counsel for Vasquez filed a request for dismissal that was different than the request for dismissal Vasquez and the church had agreed on (i.e., of the entire action). Counsel for Michael, however, was not involved in the negotiations between counsel for Vasquez and counsel for the church, and “[a]t no point in time was the partial request for dismissal circulated to counsel for [Michael].” And when Vasquez began to take concrete steps to pursue this action against Michael, counsel for Michael objected. For example, when Vasquez filed an ex parte application in August 2018 to continue the trial date, counsel for Sharon appeared at the hearing “to assert [Sharon’s] position that the matter should have been dismissed in its entirety as set forth in the Settlement Agreement and to report to the Court that [Michael’s] probate proceedings were still pending without appointment of a personal representative.” Similarly, in November 2018, at a hearing on Vasquez’s application to substitute Sharon as the administrator for Michael’s estate, counsel for Sharon “set forth in detail the provisions of the Settlement agreement and asserted that as a result thereof, [Vasquez] should be precluded from making a substitution for [Michael’s] estate.”

Finally, Vasquez complains that interpreting the settlement agreement to dismiss her causes of action against Michael but not release her claims against him “would lead to an unusual, extraordinary, and unjust result.” But it’s the result Vasquez agreed to (in exchange for $250,000), and it is hardly unusual, extraordinary, and unjust. Parties dismiss causes of action without releases all the time, leaving open the possibility of future litigation and malicious prosecution actions. Had Vasquez negotiated for a partial dismissal that would have allowed this action to proceed against Michael’s estate, the church and Sharon may have valued the settlement differently and offered Vasquez less than $250,000.

 

DISPOSITION

The order is affirmed. Sharon, individually and as administrator of Michael’s estate, is to recover her costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON, J.*