Under § 664.6, It's Take It or Leave It

Leeman v. Adams Extract & Spice, LLC, No. A142321 (D1d4 May 21, 2015)

The parties in this Prop 65 class action agreed to a consent judgment under Code of Civil Procedure § 664.6, which included injunctive relief as well as a specific attorney fee award to plaintiff. The trial court cut the fee award in half and then entered the judgment as modified. Section § 664.6, however, does not permit it to do that. The trial court can’t just alter the terms of the deal and enter judgment as it sees fit. It could refuse to enter the judgment and send the parties back the table, but it could not add or modify any express term.

Reversed.

It seems like this result could have been avoided with some minor drafting tweaks to the settlement papers. The parties in this  case agreed that the defendant “shall pay” a fixed sum of money for plaintiff's fee. That put the court in the position of being required to effectively modify the agreement in order to reduce the fees. But the agreement could have stated that defendant would not oppose a motion for fees so long as they did not exceed a certain amount—the kind of “clear sailing” provision that has been approved by California Courts in class action settlements, see In re Consumer Privacy Cases, 175 Cal. App. 4th 545, 552 (2009). Were that the language, the court’s reduction of the award shouldn’t constitute an amendment of the agreement, so there would be no issue under § 664.6. Of course, that would subject plaintiff to some additional risk, and maybe she wouldn’t have agreed.