Filed 6/29/20 Cross v. Cooper CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CHARLES CROSS et al.,

Plaintiffs and Respondents,

v.

TYLER MORGAN COOPER,

Defendant and Appellant.

B289433

(Los Angeles County

Super. Ct. No. NC059949)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ramona G. See, Judge. Reversed with directions.

Bohm Wildish & Matsen, James G. Bohm and Gordon C. Stuart for Defendant and Appellant.

Kristensen Weisberg, John Kristensen, Jesenia A. Martinez and Jacob J. Ventura for Plaintiffs and Respondents.

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Tyler Morgan Cooper (Cooper) appeals from the judgment entered after the trial court granted a motion under Code of Civil Procedure section 664.6 to enforce a settlement. The settlement, entered orally before the court, resolved a lawsuit brought by Charles Cross, Justin Nunes, and JAG Automotive LLC (together JAG) to rescind Cooper’s sale of an automobile to JAG. Cooper also appeals from the postjudgment orders denying his motions for new trial, to vacate the judgment, and to set aside the settlement agreement. We conclude that Cooper and JAG entered into an enforceable settlement and Cooper has demonstrated no grounds for releasing him from his contractual obligation. We also reject most of Cooper’s remaining contentions. However, we conclude that as entered, the judgment omits material settlement terms and adds new terms that were not mutually agreed upon. Accordingly, we reverse the judgment with directions to the trial court to enter judgment setting forth all the material terms and excluding the additional, unauthorized terms.

BACKGROUND

I. The purchase and sale

At Cross’s behest, Nunes, who works at JAG Automotive LLC, arranged to purchase a Mini from Cooper. Although the vehicle’s title was in the name of European Auto Sales, Nunes made the check out to Cooper individually because Cooper stated he was a representative of European Auto Sales. After buying the car, Nunes discovered that title could not be registered in the name of an individual and the vehicle could not be driven on public roads because European Auto Sales was a wholesale dealer.

II. The lawsuit and settlement

JAG sued Cooper for fraud and breach of contract, seeking damages, restitution, and disgorgement of profits for violating the unfair competition law, the false advertising law (Bus. & Prof. Code, §§ 17200, 17500) and the Consumer Legal Remedies Act (Civ. Code, § 1750). The operative complaint alleged that Cooper and European Auto Sales used fraudulent and misleading advertisements and representations to induce JAG to purchase the automobile.

Cooper cross-complained against European Auto Sales and Nunes seeking implied indemnity, comparative indemnity, declaratory relief, equitable indemnity, and contribution. Cooper alleged that if he were held liable on the complaint, it would be solely because of cross-defendants’ conduct and so he was entitled to indemnification.

On October 4, 2017, amid trial, JAG and Cooper announced they had reached a resolution. “The parties have agreed that [Cooper] will pay [JAG] $95,000. The first [$]85,000 will be made within 45 days. The remaining [$]10,000 will be made 60 days from this date. It will be wired to [JAG’s counsel] . . . And [Cooper] will take and incur the cost for taking possession of the vehicle within 30 days. [¶] The settlement will be under [section] 664.6 . . . . [¶] . . . [¶] . . . If there’s any motion for enforcement, the parties are going to draft a stipulated judgment that can be entered upon ex parte motion. And if there’s any motions for enforcement of the agreement, . . . the prevailing party gets their reasonable costs and attorney[ ] fees . . . under Civil Code 1742. This agreement is a release of all potential cross-complaints related to the sale and purchase of the vehicle at issue.”

Cooper, Nunes, and Cross each stated on the record that they had the opportunity to speak to their attorneys and understood and agreed to all the terms of the settlement. Cross initially expressed his concern that he would not get the settlement money. The trial court responded in front of Cooper that Cross would have a judgment against Cooper and if Cooper failed to pay in a timely fashion, that judgment would be the same as if JAG had obtained a verdict. JAG’s attorney could return to court and get the sheriff to collect the judgment amount.

JAG’s attorney filed and served a notice of ruling on Cooper’s counsel on October 10, 2017. That document stated that the parties had entered into a settlement agreement on the record on October 4, 2017, and listed the “following terms: [¶] [(1)] . . . Cooper agreed to pay [JAG] $95,000 in two installments that would be wired to [JAG’s counsel] . . . ; [¶] [(2)] . . . Cooper agreed to take back the Mini Cooper, at his own expense; [¶] [(3)] The first installment of $85,000 will be due 45 days from October 4, 2017, Monday, November 20, 2017; [¶] [(4)] The second installment of $10,000 will be due 60 days from October 4, 2017, Monday, December 4, 2017; [¶] [(5)] The parties agreed to enter into a Stipulated Judgment against . . . Cooper, which will be filed by [JAG] should . . . Cooper fail to abide by the terms of the settlement agreement; [¶] [(6)] The parties set a hearing date on December 7, 2017 . . . for an Order to Show Cause re Dismissal; [¶] [(7)] [JAG] were ordered to provide notice.”

III. JAG’s motion to enforce the settlement

The settlement did not put an end to the dispute. Cooper’s attorney inquired of JAG’s counsel about retrieving the automobile from JAG. On the Friday before the Monday due date for the first payment, JAG’s attorney emailed Cooper’s counsel that Cooper could take the vehicle, but if payment was not timely made, JAG’s counsel would file its ex parte motion for judgment. Over the weekend, Cooper attempted to retrieve the vehicle. On Monday, November 20, 2017, JAG had not received $85,000, and so its attorney emailed Cooper’s counsel that it would call law enforcement to prevent unapproved removal of the car. JAG offered to extend the first payment date to November 29, 2017 but warned Cooper that if he did not make the initial payment by that extended date, JAG reserved its right to seek ex parte an order to enforce the settlement and for attorney fees. Cooper made no payment.

On December 4, 2017, three days before the scheduled hearing on the order to show cause (OSC) regarding dismissal, JAG’s attorney filed and served a declaration delineating the same settlement terms listed in the notice of ruling, except that this declaration replaced item 7 concerning notice with a statement that JAG was entitled to reasonable costs and attorney fees to enforce the judgment.

On December 6, 2017, the day before the OSC hearing, Cooper retained new counsel. The trial court did not dismiss the case. JAG’s attorney asked the court to set an earlier date for JAG’s motion to enforce the settlement, but the court told him to reserve one. The following day, Cooper set a March 2018 date to hear Cooper’s motion to set aside the judgment.

On December 27, 2017, JAG filed and served its ex parte motion under section 664.6 to enforce the settlement agreement, seeking entry of judgment against Cooper in the principal amount of $95,000 plus attorney fees. The motion included the declaration of JAG’s counsel attaching the transcript of the October 4, 2017 oral settlement; JAG’s counsel’s November 20, 2017 email confirming Cooper’s failure to make any payment and reserving JAG’s right to seek an order enforcing the settlement ex parte; the December 4 declaration; and a proposed judgment.

The following day, the trial court entered judgment on the settlement in the amount of $95,000 plus 10 percent interest.

IV. Cooper’s attacks on the judgment and the trial court’s rulings

Cooper filed three motions attacking the judgment. First, he timely moved for a new trial on the ground that JAG breached a material term of the settlement by failing to make the car available to Cooper by November 3, 2017. Cooper also based his motion on newly discovered evidence and mutual mistake of fact in that both parties believed that title was held by JAG, but that it was actually held by European Auto Sales, Cooper’s company. Also, Cooper had recently discovered that the car had been used in races in Southern California.

Second, Cooper moved to vacate the judgment and enter a new judgment under section 663. He argued that the judgment as entered did not reflect the parties’ agreement because it was not jointly drafted; provided no notice that judgment was being submitted to the court or that the submission was ex parte; and did not provide details of where, when, and how the vehicle would be delivered. Cooper stated his belief that he agreed to return of the vehicle by November 3, 2017 (30 days after oral entry of the settlement), so that he could sell the car at auction to pay some of the $85,000 first payment in cash.

Third, Cooper moved to set aside the settlement. He argued that JAG’s breach of the settlement’s requirement to make the car available by November 3, 2017 rendered the agreement void. Although he also relied on the same mutual mistake of fact about title, Cooper attached the declaration of his former attorney acknowledging that trial testimony involved JAG’s inability to get title transferred from European Auto Sales to JAG.

The trial court denied all three motions. The court found Cooper did not justify a new trial because he presented no qualifying new evidence. The court denied the motion under section 663 reasoning that the statute does not apply to stipulated judgments. As for the motion to set aside the settlement, the court found Cooper’s interpretation of the agreement’s terms to be unreasonable. The court questioned the logic of a stipulation under which JAG would return the vehicle before Cooper made any payment. The court also found that the asserted mistake of fact about the state of title did not materially affect Cooper’s rights because it was known before trial that title was a critical issue to be tried. Cooper timely appealed.

DISCUSSION

I. The trial court did not err in granting JAG’s motion under section 664.6.

A. Legal principles

It is “the strong public policy of this state to encourage . . . voluntary settlement of litigation.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359.) Section 664.6 promotes this policy by providing a summary procedure for the specific enforcement of a settlement agreement, obviating the need to file a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) Section 664.6 provides that 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.”

The trial court must determine whether the parties have entered into a valid and binding settlement. (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360.) “A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms.” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) The court considers the oral testimony, the declarations (Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 329), and, if the same judge who heard the settlement hears the motion to enter judgment on that settlement, “ ‘he or she may consult his [or her] memory’ ” (Osumi, at p. 1360). The trial court may not, however, “rewrite the oral settlement agreement or add what was omitted.” (Canaan Taiwanese Christian Church v. All World Mission Ministries (2012) 211 Cal.App.4th 1115, 1126.)

“If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement. [Citation.] The statute expressly provides for the court to ‘enter judgment pursuant to the terms of the settlement.’ ” (Hines v. Lukes, supra, 167 Cal.App.4th at pp. 1182–1183.)

We review for substantial evidence the court’s factual findings on a motion to enforce a settlement. (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.) We exercise our independent review when interpreting section 664.6 and when determining whether the trial court satisfied the strict requirements of that statute. (Machado v. Myers (2019) 39 Cal.App.5th 779, 790–791 (Machado).)

B. Cooper has demonstrated no basis for relieving him of the settlement obligations.

1. There was mutual agreement.

The evidence supports the trial court’s conclusion that the parties mutually agreed to the settlement’s terms. (See Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141 [“Mutual assent is a question of fact”].) “ ‘The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.’ ” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.) The trial court’s determination that there was a meeting of the minds, or mutual assent, is subject to limited review and will not be disturbed if supported by substantial evidence. (Osumi v. Sutton, supra, 151 Cal.App.4th at p. 1360.) Here, the trial court impliedly found mutual consent by entering judgment on the settlement, and substantial evidence supports that finding. All material terms were recited on the record before the same trial judge who entered the judgment enforcing it. Individually questioned, the parties each confirmed his understanding of the terms, including that the settlement would be enforceable under section 664.6. All parties stated on the record that they agreed to the terms.

2. The settlement’s terms are clear.

JAG interprets the settlement to provide that Cooper could retrieve the vehicle 30 days after he paid JAG the $95,000 in full. Under JAG’s interpretation, Cooper was to make the first payment by November 20, 2017, to make the second payment by December 4, 2017, and to retrieve the car 30 days afterwards, i.e., by January 2, 2018. JAG’s counsel declared that return of the vehicle was an afterthought to the already completed settlement and hence was a minor, immaterial issue. In any event, JAG repeatedly told Cooper that he could retrieve the vehicle upon proper notice.

Cooper contends that under the settlement, he was to retrieve the car before making any payments. He quotes from the settlement made orally in court, “And [Cooper] will take and incur the cost for taking possession of the vehicle within 30 days.” Thus, in his view, the agreement provides that he would take possession of the car by November 3, 2017; make the first payment by November 20, 2017; and the second payment by December 4, 2017. Cooper asserted, in connection with his efforts to set aside the judgment, that payment was conditioned on return of the car, and that he planned to sell the car at auction in order to make the $85,000 payment.

The trial court found Cooper’s interpretation to be “illogical and unreasonable.”

The “trial court is empowered under section 664.6 to resolve reasonable disputes over the terms of the settlement.” (Machado, supra, 39 Cal.App.5th at p. 795; see Wackeen v. Malis (2002) 97 Cal.App.4th 429, 432, fn. 1.) “ ‘A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.’ ” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 36.)

A “contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.” (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) “To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) However, if “a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.)

“Courts seek to interpret contracts in a manner that will render them ‘ “lawful, operative, definite, reasonable, and capable of being carried into effect” ’ without violating the intent of the parties.” (Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 745.) “The fundamental goal of contract interpretation is to give effect to the mutual intention of the parties as it existed at the time they entered into the contract. [Citation.] That intent is interpreted according to objective, rather than subjective, criteria.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1385.)

“Extrinsic evidence is admissible to prove a meaning to which the contract is reasonably susceptible. [Citations.] If the trial court decides, after receiving the extrinsic evidence, the language of the contract is reasonably susceptible to the interpretation urged, the evidence is admitted to aid in interpreting the contract.” (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 8.) However, when “the contract is clear and explicit, the parties’ intent is determined solely by reference to the language of the agreement. (Civ. Code, §[ ] 1638 [‘language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity’[]].)” (Klein v. Chevron U.S.A., Inc., supra, 202 Cal.App.4th at p. 1385.) “We review the trial court’s ruling on a section 664.6 motion de novo for errors of law.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc., supra, 103 Cal.App.4th at p. 35.)

Here, the words of the settlement agreement clearly reflect the parties’ intent that Cooper would retrieve the automobile 30 days after paying the full $95,000. The transcript of the oral proceedings listed the two payments first, followed by a statement about how Cooper would make payment. Only after these obligations were listed, did the settlement state, “And [Cooper] will take and incur the cost for taking possession of the vehicle within 30 days.” The word “and” indicates that retrieval was to follow payment. Payment was not conditioned on retrieval. The extrinsic evidence submitted in connection with Cooper’s postjudgment motions does not affect our interpretation. Cooper’s undisclosed subjective intent or expectation that he would sell the car at auction to make the payments is irrelevant to determining the meaning of the language communicated in the oral settlement. (Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th at p. 150.) Accordingly, the settlement’s terms were sufficiently definite to provide a rational basis for determining the timing of performance and for giving an appropriate remedy for breach of the terms. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 770.)

3. No denial of due process

Cooper contends that the trial court denied him due process when it entered judgment. Cooper argues that as JAG moved ex parte, and because the trial court signed and entered the judgment before he could oppose it, Cooper was denied notice and the opportunity to be heard. We disagree.

Generally, due process is satisfied by reasonable notice and an opportunity to be heard. (See Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) Cooper had notice that JAG intended to move ex parte for entry of judgment. JAG’s attorney notified Cooper’s counsel by email three times on November 17, 2017, that if the money was not timely paid, JAG would promptly go to court ex parte. Additionally, JAG’s attorney also served the December 4 declaration setting out the terms of the settlement on Cooper’s counsel. In fact, Cooper’s attorney admitted he had notice of the ex parte motion when he declared in connection with his new trial motion that “there was no notice to my office prior to December 7, 2017 that a judgment was going to be submitted,” (italics added) and that at the December 7, 2017 OSC regarding dismissal, JAG asked the trial court to set an earlier date (than the already scheduled January 22, 2018 date) for this motion to enforce the settlement agreement. Cooper clearly had notice. That his counsel simply and incorrectly assumed no date for such a motion was available before the March 2018 date set for his motion to set aside the same settlement, does not negate the notice he did receive.

Moreover, one of the terms of the settlement, as stated on the record, was that enforcement of the agreement could be made ex parte. Cooper argues that under the settlement’s terms, judgment was to be jointly drafted before it could be enforced ex parte, but JAG unilaterally drafted and submitted the proposed judgment. “ ‘[If] the [oral agreement] at issue shows “no more than an intent to further reduce the [oral agreement] to a more formal [written] one,” the failure to follow it with a more formal writing does not negate the existence of the prior [oral] contract. . . . However, where the [oral agreement] shows it was not intended to be binding until a formal written contract is executed, there is no contract.’ ” (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1430.) Elyaoudayan explained that the oral settlement’s enforceability under section 664.6 was not affected by the statement in the oral agreement that the parties would later sign a written agreement. The Elyaoudayan court reasoned that the parties had agreed to all the material terms of a proposed written agreement with the mutual intent that the oral version should become binding. (Ibid.)

Here, the parties mutually agreed to all the material terms in open court. The oral agreement recited that “the parties are going to draft a stipulated judgment that can be entered upon ex parte motion.” Nothing in the oral settlement suggests that the stipulation would be binding only if reduced to a writing. Rather, that day, in assuring Cross he would be paid, the trial court stated, “if [Cooper] doesn’t pay in a timely fashion, it[ ] [is] no different than if you got a verdict, sir, today” reflecting the court’s understanding that the oral agreement was binding as of October 4, 2017, as stated on the record. (Italics added.) Since the parties gave their oral assent in open court, the agreement is binding on them notwithstanding JAG alone drafted the judgment.

Cooper’s reliance on Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, is misplaced. Rooney, at pages 368 to 369, stated that when “a written stipulation sets forth all the terms of a judgment agreed to by the parties, the filing of the stipulation normally provides a sufficient basis for entry of the judgment upon the ex parte application of either party. [Citations.] But if the stipulation omits any essential element of a complete judgment, a judgment cannot be entered until the missing element or elements are established by proof or by further stipulation. [Citations.] Similarly, if a material term of the stipulation is ambiguous, judgment cannot be entered until such ambiguity is appropriately resolved.” (First italics added.) Rooney, at page 372, then stated, the “judgment before us is void not only because the commissioner attempted to exercise authority not conferred upon him but also because the defendants did not effectively waive the right to be heard in opposition to its entry and because plaintiffs’ own showing in opposition to the motion to set the judgment aside establishes that defendants were given no notice of hearing nor were they afforded an opportunity to be heard.” But here, as explained, the oral stipulation set forth all the terms of the judgment agreed upon by the parties and none of the terms was ambiguous. The court understood the agreement to be enforceable when entered into the oral record. The parties specifically agreed it could be enforced ex parte. Accordingly, Cooper waived any right to complain about this procedure.

C. The judgment does not accurately reflect the parties’ oral settlement agreement.

Notwithstanding our conclusion that the settlement’s terms were clear and Cooper was not denied due process, we agree with Cooper’s contention that the trial court erred by entering judgment because it varies from the material terms of the oral settlement agreement. Cooper argues that the judgment improperly stated that judgment was being entered against Cooper on all causes of action; did not mention the 30-day period for Cooper’s recovery of the car; and omitted the releases of cross-complaints.

The parties here “were entitled to judgment ‘pursuant to the terms of the settlement’ (§ 664.6), and nothing more. ‘The power of the trial court under Code of Civil Procedure section 664.6 . . . is extremely limited.’ [Citation.] ‘[T]he trial court is under a duty to render a judgment that is in exact conformity with an agreement or stipulation of the parties. “If interpretation of a stipulation is in order the rules applied are those applied to the interpretation of contracts. [Citations.] It is not the province of the court to add to the provisions thereof [citations]; to insert a term not found therein [citations]; or to make a new stipulation for the parties.” ’ ” (Machado, supra, 39 Cal.App.5th at p. 792.)

Here, though the judgment stated most of the material settlement terms, it omitted others. The judgment left out both the 30-day period for Cooper to retrieve the car and the release. Moreover, the judgment improperly created a new term to which Cooper did not assent: It stated that “judgment is hereby rendered” (capitalization omitted) against Cooper for fraud and violation of Business and Professions Code sections 17200, 17500, and Civil Code section 1750. Entering judgment that does not properly reflect material terms of the settlement defeats the purposes of the settlement and could “spawn further litigation.” (Hines v. Lukes, supra, 167 Cal.App.4th at p. 1185.) As the judgment differs from the parties’ settlement agreement, it violates section 664.6, “which allows for entry of judgment ‘pursuant to the terms of the settlement.’ ” (Machado, supra, 39 Cal.App.5th at p. 794.) Therefore, the judgment must be reversed.

II. Cooper is entitled to relief under section 663.

Cooper contends that he did not stipulate to the terms of the judgment actually entered. Thus, he argues that the section 664.6 judgment was factually inconsistent with terms of settlement agreed upon by the parties.

Section 663 reads in part, a “judgment or decree, when based upon a decision by the court . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] . . . Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.”

The trial court denied Cooper’s motion under section 663, by relying on Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1. JAG also relies on Plaza Hollister. Plaza Hollister, at page 14, explained, a “stipulated judgment does not rest upon facts established by evidence. In the case of a stipulated judgment, it is impossible for a court to say that the judgment is not consistent with or not supported by the facts and it is impossible to substitute the correct judgment which is consistent with and supported by the facts.” Thus, Plaza Hollister, at page 15, held that section 663 has “no logical application to stipulated judgments.”

However, eight months after the judgment here, Machado, supra, 39 Cal.App.5th at pages 799 to 801, held that relief under section 663 was available when the trial court enters a judgment under section 664.6 that fails to reflect the undisputed terms of the settlement agreement. The Machado court explained that a “section 663 motion is properly ‘made whenever the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.’ ” (Machado, at p. 799.) The trial court in Machado had entered an erroneous judgment under section 664.6 on the basis of uncontroverted evidence and so the appellants were entitled to relief under section 663. (Machado, at pp. 799–801.)

Machado is factually similar and so we follow it. The trial court here entered a judgment that erroneously omitted material terms from the settlement and that added a term that was not contemplated. The parties do not dispute the evidence itself, namely the words of the settlement as put on the record in court. Their dispute was purely legal, namely the interpretation of the 30-day retrieval term. As analyzed, that term was not ambiguous. Thus, the erroneous judgment was entered on the basis of uncontroverted evidence and so Cooper is entitled to relief under section 663 in the form of entry of a judgment “ ‘pursuant to the terms of the settlement.’ ” (Machado, supra, 39 Cal.App.5th at p. 794.)

III. Cooper has not demonstrated trial court error in denying his motion for new trial.

Cooper moved for new trial on the basis of newly discovered evidence. Section 658 provides that when a motion for new trial is made on the ground of newly discovered evidence, “it must be made upon affidavits.” New trials for newly discovered evidence are disfavored. (Missionary Guadalupanas of Holy Spirit Inc. v. Rouillard (2019) 38 Cal.App.5th 421, 438.) “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) The trial court is entitled to weigh and believe the facts set forth in the affidavits. (Kroff v. Kroff (1954) 127 Cal.App.2d 404, 406.)

In connection with his new trial motion, Cooper submitted his own declaration and photographs of a Mini Cooper indicating that he had newly discovered that the vehicle at issue “had been used as a racing vehicle, thereby significantly diminishing its value.” The trial court considered both the declarations in support of Cooper’s new trial motion and the counter declarations submitted by JAG. The court believed the declaration submitted by JAG in which Roy Hernandez stated, under penalty of perjury, that the automobile referenced in Cooper’s declaration was actually owned by Hernandez, and thus was not the car Cooper sold to JAG. “[N]o abuse of discretion is shown from the fact that the trial court chose to decide the motion in accordance with the allegations of plaintiff’s affidavits rather than those of defendant. Affidavits are competent evidence where authorized by statute or where they are not objected to on proper grounds by the party against whom they are offered.” (Tanzola v. De Rita (1955) 45 Cal.2d 1, 10.)

IV. Cooper has not demonstrated trial court error in the denial of his motion to set aside the settlement.

Cooper’s motion to set the settlement aside was based on his assertion that under the oral settlement, JAG was to “make the car available no later than November 3, 2017,” before Cooper made any payments. Cooper argues that JAG breached this term and so the settlement is void. As we have already concluded that the settlement did not provide for Cooper’s retrieval before making payments, we need not revisit this issue.

V. Conclusion

We agree with the trial court that the settlement agreement entered orally on the record before it on October 4, 2017 is valid under section 664.6. As entered, however, the judgment varies from the oral settlement agreement. The judgment states some of the settlement terms, omits others, and added one. Therefore, the judgment does not comply with section 664.6 and is reversed. On remand, the trial court must enter a new judgment under section 664.6, setting forth all the material terms of the parties’ settlement agreement and only those terms. As the trial court has not dismissed its jurisdiction under section 664.6 to enforce the agreement, after entry of a new judgment, it may, in accordance with applicable rules of procedure, exercise its inherent and statutory authority to enforce the judgment, including making determinations, as appropriate, about breach, materiality, and excuse from performance. We express no opinion about how the trial court should resolve such claims in the exercise of its authority. (See Machado, supra, 39 Cal.App.5th at p. 801.)

DISPOSITION

The judgment under Code of Civil Procedure section 664.6 is reversed. The trial court is directed to enter judgment setting forth all the material settlement terms and only the settlement terms of the parties’ October 4, 2017 settlement agreement as reflected in the oral proceedings. Tyler Morgan Cooper is entitled to costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.