In re Marriage of FARID and SHIRIN ASSEMI.
No. S032852
Supreme Court of California
May 26, 1994.
896 | 7 Cal.4th 896
GEORGE, J.
FARID ASSEMI, Respondent, v. SHIRIN ASSEMI, Appellant.
Shirin Assemi, in pro. per., Fletcher & Fogderude and Norman L. Fletcher for Appellant.
Stephen A. Kalemkarian, David C. Kalemkarian and Bernard N. Wolf for Respondent.
OPINION
GEORGE, J.—
As we shall explain, the record in this case establishes that an oral stipulation was made before a person who, pursuant to the stipulation of the parties to pending litigation, was empowered to adjudicate and render a determination of the issues in controversy submitted to him, and that the stipulation was presented to him in the context of his role as a final arbiter who was presiding over the proceeding in which such determination would be made. Under these circumstances, we conclude that the oral stipulation was made “before the court” and therefore was enforceable under
Accordingly, we conclude the trial court properly entered judgment pursuant to
I
On June 2, 1989, husband filed this proceeding seeking dissolution of his nine-year marriage to wife in the Fresno County Superior Court. Following wife‘s filing of a response, the matter was designated “at issue” and scheduled for a settlement conference. At the settlement conference, the parties appeared in person, with their respective counsel, before Judge Harry Papadakis of the Fresno County Superior Court.
Following settlement discussions and pursuant to the parties’ oral stipulation, made before Judge Papadakis, the court (1) bifurcated the issue of the termination of the parties’ marital status from all other issues, and entered a judgment of dissolution of the marriage, and (2) ordered trial of the remaining issues in controversy, involving primarily the identification and division of community property and the questions of spousal and child support, “referred to binding arbitration,” with one of three designated retired judges to be appointed as arbitrator. The stipulation and order was reduced to writing (hereafter stipulation and order), and was signed by the parties, their counsel, and the settlement conference judge.3 In brief, the stipulation and
The arbitration proceedings were scheduled for October 1, 1990, with retired Judge Leonard Meyers of the Fresno County Superior Court acting as the appointed arbitrator agreed upon by the parties. On that date, at Judge Meyers‘s law offices, shortly before the proceedings were to commence, the parties, with their respective counsel and accountants present, resumed settlement negotiations. Judge Meyers agreed to delay commencement of the formal proceedings in order to allow the parties a final opportunity to reach an accord with respect to the remaining issues in controversy.
That same day, in the latter part of the afternoon, the parties and counsel advised Judge Meyers that the settlement negotiations had been successful, and sought to state on the record the terms of the settlement, to be transcribed by the certified reporter. At the outset of the transcribed proceedings, Judge Meyers stated that he was “informed that the parties have arrived at a stipulation to dispose of all of the issues that were to be arbitrated.” After the parties’ respective attorneys recited the terms of the settlement, Judge Meyers inquired of counsel whether they “agree[d]” with the stipulation, and counsel for both parties replied affirmatively. When Judge Meyers then inquired of the parties individually whether they understood and agreed to the terms as recited on the record, both husband and wife replied affirmatively. Following further discussion relating to consummation of the settlement, Judge Meyers stated: “Very well. And as the arbitrator, I accept the stipulation, I‘m satisfied the parties understand it, accept the stipulation.”
Four months thereafter, on February 5, 1991, husband‘s counsel filed a motion for entry of judgment, pursuant to
In his declaration, Kalemkarian related the following events that had led to the motion for enforcement of the stipulated settlement. On October 5, 1990, Kalemkarian delivered to the law offices of wife‘s counsel, Norman Fletcher, a proposed draft of a written settlement agreement incorporating the terms to which the parties previously had stipulated orally. On November 1, 1990, Kalemkarian received a letter from Fletcher regarding the proposed draft, stating that “[t]he stipulation and order are acceptable with the following exceptions...,” and listing 14 exceptions, consisting of corrections of typographical errors, clarification of words or phrases, and proposed terms outside the scope of the oral stipulation, relating to child visitation and the purchase of life insurance.
On November 12, 1990, Kalemkarian delivered a letter of that same date to Fletcher‘s law offices, together with a revised written settlement agreement incorporating certain of the modifications proposed by Fletcher which, according to Kalemkarian‘s letter, were consistent with the parties’ agreement as reflected in the transcript of the October 1, 1990, proceedings.
By letter dated December 7, 1990, Fletcher notified Kalemkarian that wife was unwilling to sign the settlement agreement because of her belief that husband had understated by approximately $60,000 the balances of his various bank accounts as of the date of the parties’ separation. Fletcher requested that husband furnish copies of the bank account statements for the period in question.
In response, Kalemkarian‘s associate telephoned Fletcher, requesting the number and location of the bank accounts in question, and other information that would enable Kalemkarian to identify those accounts. Fletcher refused to provide that information, insisting instead that (according to his client) husband was fully aware of the accounts, the balances of which allegedly had been understated. Fletcher further represented that he had no objections to the revised written settlement agreement, and that the alleged understatement of bank account balances was the only issue preventing his client from executing the document.
Ultimately, Fletcher advised Kalemkarian that his client was unwilling to execute the agreement because of her firm belief that petitioner had concealed money from her.
In support of his request for sanctions against respondent and her counsel pursuant to
When husband moved for entry of judgment, wife asserted in opposition, among other things, that the oral stipulation was not enforceable under
Following a hearing, the trial court granted husband‘s motion and ordered entry of judgment pursuant to the terms of the parties’ oral stipulation. In so ruling, the trial court observed that “[i]t appears clear to this court that the proceeding which took place on October 1st, 1990, was a judicially supervised proceeding.” The trial court also awarded sanctions in the amount of $5,000 to be paid by wife to husband.
On wife‘s appeal, the Court of Appeal reversed. The appellate court concluded the oral stipulation for settlement approved by Judge Meyers had not been made “before the court” in the context of
II
Prior to the enactment of
Another line of authority, however, recognized the inherent power of a court to enforce, by way of a nonstatutory motion for entry of judgment enforcing the settlement agreement, a settlement agreement presented by the
With the enactment of
It is undisputed that a stipulated settlement presented orally by the party litigants or their counsel to a judge, in the course of a settlement conference supervised by that judge, satisfies the “before the court” requirement of
In contrast, an oral stipulation to settle made by the party litigants at a deposition, but not in the presence of a judge or any other person serving in an officially recognized judicial capacity, does not satisfy the “before the court” requirement, even if the stipulation is placed on the record before a certified reporter. (See City of Fresno v. Maroot, supra, 189 Cal.App.3d at pp. 761-762; Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d at pp. 1174-1175.)
III
As we shall explain, we conclude that under the circumstances of the present case, the oral stipulation presented by the parties to Judge Meyers on the record6 and approved by him on October 1, 1990, was made “before the court” under
At the outset, it is necessary to determine the capacity in which Judge Meyers was acting pursuant to the original stipulation and order. In proceedings under the former Family Law Act (
In the present proceeding, the stipulation and order is ambiguous as to the role to be served by Judge Meyers—specifically as to whether the parties intended that he act as a privately compensated temporary judge or as an arbitrator. The stipulation and order refers to the appointment of a retired judge to be the “trial judge,” but that document also provides for the matter to be set for “binding arbitration” with the retired judge to act as the “arbitrator.”
The position of temporary judge is authorized expressly by
To invoke the constitutional authority empowering a temporary judge to act in this capacity, the parties must submit, for approval of the presiding or supervising judge of the court, a written stipulation designating the proposed temporary judge, and the temporary judge (unless a court commissioner) must take and file an oath of office. (
Once a temporary judge has taken an oath of office, he or she has the same authority as a regular judge (see generally, Estate of Kent (1936) 6 Cal.2d 154 [57 P.2d 901]), basically is bound by the same rules of evidence and procedures as those applicable in superior court trials, and is empowered to render an appealable judgment in the same manner as a regular judge. (See 2 Witkin, Cal. Procedure, op. cit. supra, Courts, § 284 at p. 307; Christensen, Private Justice: California General Reference Procedure, 1982 Am. B. Found. Res. J. 79, 89.)
The role of an arbitrator acting pursuant to a private written agreement to arbitrate, in proceedings governed by the private arbitration statutory scheme (
In the present proceedings, the role served by Judge Meyers pursuant to the stipulation and order corresponded more closely to the functions and characteristics of a temporary judge than to those of an arbitrator. The stipulation and order contemplated that the proceedings would be governed by the rules and procedures applicable in superior court trials, and that Judge Meyers would render a decision having the same finality and subject to the usual appellate review accorded a judgment rendered by a superior court.
The record fails to reflect, however, that Judge Meyers took an oath of office empowering him to act as a temporary judge, and this circumstance precludes his having served in that capacity. Indeed, the parties do not contend he was acting as a temporary judge.
Instead, as reflected by the stipulation and order, the parties contemplated that Judge Meyers would serve in some hybrid capacity not clearly consistent with either the position of a temporary judge authorized by the California Constitution or that of an arbitrator under the private arbitration statutes.
In determining whether the oral stipulation was presented “before the court” within the meaning of
“Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally . . . .” (Burchell v. Marsh (1855) 58 U.S. (17 How.) 344, 349 [15 L.Ed. 96, 99].) Arbitrators have been extended the protection of judicial immunity, because they perform “the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” (Antoine v. Byers & Anderson, Inc. (1993) 508 U.S. 429, 436 [124 L.Ed.2d 391, 398, fn. 8, 113 S.Ct. 2167, 2170]; see also
For these reasons, we conclude Judge Meyers was empowered to act in a quasi-judicial capacity as arbiter of the controverted issues, and was acting in that capacity in approving the stipulated settlement presented to him.
The record also reflects the parties and their respective counsel presented the stipulated settlement to Judge Meyers, for his approval, in recognition of his authority to effect a binding resolution of the issues in controversy. At the outset, Judge Meyers stated he was informed the parties had reached a stipulation to dispose of all issues to be arbitrated, and, before approving the stipulation, Judge Meyers, in the presence of a certified reporter, questioned the parties whether they understood and agreed to the terms as explicitly defined and recited on the record. They replied affirmatively.
Under these circumstances, the parties’ oral stipulation must be deemed to have occurred in a “judicially supervised” proceeding. (See City of Fresno v. Maroot, supra, 189 Cal.App.3d 757, 762; Richardson v. Richardson, supra, 180 Cal.App.3d 91, 97; Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d 1168, 1173; 3 Cal. Civil Practice Proc., op. cit. supra, Judgment Pursuant to Stipulation, § 20:11, p. 12.) As with a stipulation presented orally before a regular judge in a courthouse setting, the parties in this proceeding, at Judge Meyers‘s law offices, were aware of the binding adjudicatory powers conferred upon him by the previous stipulation approved by the superior court, and must have appreciated the purpose and objective of the settlement negotiations and the final, binding nature of the oral stipulation.
For these reasons, we conclude the stipulation orally presented to Judge Meyers, and approved by him, was made “before the court” within the meaning of
The strong policy favoring settlement of litigation supports our conclusion. Frequently, once present and prepared to proceed with trial proceedings before a temporary judge, or arbitration proceedings before an arbitrator, the litigants will embark upon settlement negotiations before or even while engaging in the formal proceedings. Indeed, “proposals for expanded use of [alternative dispute resolution] in the courts focus on early settlement activities . . . .” (State Bar of Cal., Off. of Research, Guide to Court-Related ADR (1993) p. I-4.) In the event stipulated settlements ultimately reached in negotiations supervised by a temporary judge or an arbitrator were unenforceable under
Moreover, such a result also would impede the legislative policy of encouraging “greater use of alternative dispute resolution techniques whenever the administration of justice will be improved.” (
Finally, in light of our confirmation in Moncharsh v. Heily & Blase, supra, 3 Cal.4th 1, 8-13, of the broad and conclusive powers of a private arbitrator, generally precluding judicial review of substantive error of law or fact, an anomalous result would occur were we to affirm the holding of the Court of Appeal. A transcript of an arbitration hearing demonstrating gross errors of law or fact would afford no relief to an aggrieved party seeking to overturn the award on substantive grounds, but a transcription of a stipulation to settle, reflecting accurately the terms of the mutual accord reached by the parties, and confirmed on the record before the arbitrator, would be unenforceable, because the stipulation was not recited before a regular judge in a courthouse setting.
IV
Past cases have established that, in ruling upon a
In the present case, the trial court‘s determination that the parties entered into a binding settlement agreement clearly is supported by substantial evidence. As previously noted, the declarations filed in support of the motion and the transcript of the proceedings of October 1, 1990, establish that the parties, represented by counsel, engaged in settlement negotiations over an extended period of time, advised the retired judge of their desire to enter into a settlement disposing of all the matters that were to be arbitrated, explicitly defined and placed on the record the terms of the settlement, and, in response to Judge Meyers‘s inquiry, expressly stated they understood and agreed to those terms. Additionally, the documented correspondence between counsel during the several weeks following the October 1, 1990, proceedings discloses that wife‘s refusal to execute the written settlement
Accordingly, we conclude the trial court did not err in entering judgment, pursuant to
V
The judgment of the Court of Appeal is reversed, and the matter is remanded to the Court of Appeal with directions to affirm the judgment of the superior court enforcing the settlement agreement, and to reconsider the issue of the ancillary award of sanctions.
Lucas, C. J., Arabian, J., and Peterson, J.,* concurred.
MOSK, J.—I dissent.
Our text in this case is
As a general matter, this court grants review in order to “secure uniformity of decision or the settlement of important questions of law . . . .” (
*Presiding Justice, Court of Appeal, First Appellate District, Division Five, assigned by the Acting Chairperson of the Judicial Council.
I
Because the Court of Appeal below satisfactorily addressed and resolved the issue in this proceeding, its opinion, prepared by Justice Dibiaso, merits quotation at length. But first, the history of
It is
At the outset, the Court of Appeal stated the facts and the procedural background.
“On June 13, 1990, the day originally set for trial of their marital dissolution action [in the Fresno County Superior Court], Shirin D. Assemi, the wife, and Farid D. Assemi, the husband, reached a stipulation bifurcating the trial and consenting to the entry of a judgment of dissolution of marriage as to status only. A comprehensive stipulation concerning joint legal custody and joint physical custody of the couple‘s two minor children was also reached. The trial date was taken off calendar. In addition, the parties agreed to set the case for ‘binding arbitration’ and to select a retired judge to resolve the remaining disputed issues between them.
“The arbitration hearing was scheduled for October 1, 1990, at the offices of the retired judge chosen by the parties under their agreement [viz., Leonard Irving Meyers]. Shortly before the arbitration hearing began, the parties undertook settlement negotiations and informed the retired judge that
“The parties, their attorneys and their [certified public accountants] spent nearly the entire day in negotiations. All remaining issues were discussed. Late that afternoon, a compromise settlement was concluded, and the retired judge was called into the room where the parties orally recited the terms of the settlement, which were recorded and later transcribed by a certified shorthand reporter. Under questioning by the retired judge, both parties acknowledged that they understood their agreement constituted a complete settlement of all of their grievances and that they understood and consented to the terms of the settlement. The retired judge stated that, as arbitrator, he accepted the settlement and that he was satisfied the parties understood it. He also explained that an order based on the arbitration was unnecessary ‘because we haven‘t had an arbitration.’
“Although the parties, through their respective counsel, had considerable communications concerning a formal written settlement agreement, no such instrument was ever executed.1 Ultimately, . . . husband noticed a motion requesting entry of judgment pursuant to
At this point, the Court of Appeal turned to its discussion of the law.
“[
“[Wife] contends the trial court erred when it enforced the oral agreement because the settlement was neither in writing2 nor made ‘before the court.’ She claims the retired judge was not a judicial officer within the contemplation of the statute. [Husband] counters that the proceeding before the retired judge had all the indicia of a formal proceeding and therefore satisfied the spirit and intent of
“In Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.App.3d 1168 [222 Cal.Rptr. 658], during the taking of a deposition of a witness held in a private law office, the parties reached an apparent settlement of the litigation. The agreement was recorded and later transcribed by the court reporter present for the deposition. Both parties stated on the record that they understood the terms of the settlement and agreed to be bound by them. (Id. at p. 1170.) When one of the parties later refused to sign a formal written document reflecting the settlement arrived at during the deposition, the other party brought a motion under
“After reviewing the extant authorities, the appellate court reversed, holding in part that ‘an oral stipulation made before the court must be just that: a statement made on the record at a judicially supervised proceeding.’ (Datatronic, supra, 176 Cal.App.3d at p. 1173.) Although the appellate court acknowledged the general policy favoring pretrial settlement of lawsuits, it was of the view nonetheless that an oral settlement made at a judicially supervised proceeding ‘protect[s] the interests of the parties to the agreement and ensure[s] their full appreciation of the nature and finality of such settlement proceedings.’ (Id. at p. 1174.) The court concluded that the deposition where the settlement agreement was orally recited was not a judicially supervised proceeding. (Ibid.)
“A panel of this court faced the same issue in a similar factual context in City of Fresno v. Maroot (1987) 189 Cal.App.3d 755 [234 Cal.Rptr. 353]. There, an oral settlement stipulation in a condemnation action was taken and transcribed by a certified shorthand reporter during a deposition. A written agreement was never executed by all the parties. (Id. at pp. 756-757, 760.)
“The Maroot court found Datatronic‘s reasoning to be sound, and reversed the trial court‘s order enforcing the oral stipulation. ‘Unless the [settlement]
“We agree with the literal interpretation placed on
“We need not determine whether the parties’ stipulation3 in this case was one for general arbitration under [the General Arbitration Act at]
Notes
“[This] matter shall be, and hereby is, ordered to be set for binding arbitration, under the following conditions:
“a. That one of the following retired judges shall be appointed as Arbitrator in the above-entitled matter: The Hon. Charles F. Hamlin, The Hon. Blaine Pettitt, or, The Hon. Leonard M[e]yers.
“b. That the Arbitration hearing of this matter, before said retired judge, shall be set for a date mutually agreeable between counsel, the parties, and the judge to be selected, and shall be set between September 24, 1990, and October 5, 1990. That NORMAN L. FLETCHER, counsel for respondent, shall select which of said three judges shall preside over the Arbitration hearing, and he shall make arrangements therefor, and advise counsel for petitioner of said arrangements, forthwith.
“c. That there shall be a Court reporter present at all of the proceedings to be held in said Arbitration of this matter, with a full and complete record of the proceedings to be made. That all of the California Rules of Evidence and Rules of Court applicable to Trials conducted in the Superior Court shall apply to the Arbitration of this matter.
“d. That the parties right to appeal the decision of the Arbitrator on said hearing shall be reserved to both parties, with all of the Rules for appeals from the Superior Court to be applicable to said Arbitrator‘s decision.
“e. That each party shall, and hereby does, have, the right to take one (1) personal deposition of the other party prior to said Arbitration. That both depositions shall be set at a date and time mutually convenient to the parties and their respective counsel, as soon as reasonably possible.”
The stipulation and order concluded with the signing of the document by Judge Papadakis, as follows:
“Done in open court on June 13, 1990, and signed this 11 day of July, 1990.
[signature]
JUDGE OF THE SUPERIOR COURT” The agreement to submit the remaining disputed issues to a retired judge for a final decision was contained in a written ‘Stipulation and Order,’ which covered, in addition to the provisions concerning arbitration, a number of subjects, including the vacation of the trial date, the joint legal and physical custody of the minor children of the marriage, and the bifurcation of the trial and the entry of a judgment of dissolution of the marital status. The portion of the document comprising the stipulation was signed by the parties and their respective attorneys. The portion comprising the order was signed by Judge [Harry N.] Papadakis, acting judge of the superior court.
“Whether an agreement is one for general arbitration or one for judicial arbitration is to be determined in accord with the standard rules which apply to the construction of all contracts;
“‘Judicial arbitration has little connection to the courts. It has been described as a “sabbatical from the courthouse.” (Nanfito v. Superior Court (1991) 2 Cal.App.4th 315, 319 [2 Cal.Rptr.2d 876].) “Judicial arbitration” is obviously an inapt term, for the system it describes is neither judicial nor arbitration. The hearing is not conducted by a judge,6 and the right to a trial de novo7 removes the finality of true arbitration. “Extrajudicial mediation” would be closer to correct.’ (Dodd v. Ford, supra, 153 Cal.App.3d 426, 432, fn. 7.)
“While the trial court may retain some jurisdiction over cases it has ordered to judicial arbitration (see, e.g., Nanfito v. Superior Court, supra, 2 Cal.App.4th at pp. 319-320[]), this does not mean the proceedings before the arbitrator are ‘judicially supervised.’ The opposite is the case. When a timely arbitration takes place as ordered, the court will not have occasion to deal with the action unless there is a proper request for a trial de novo. (See
“General arbitration (
the decisive factor is the parties’ objective intention at the time the agreement was entered into. (Porreco, [supra,] 216 Cal.App.3d at p. 119.)
“The lack of any requirement that a formal record be kept of judicial or general arbitration proceedings is also crucial. The Judicial Arbitration Act does not make any provision for reporters.
“That the parties in this case may have included provisions in their agreement which modified procedures otherwise applicable to judicial or general arbitration, or both, is immaterial. For example, the fact the parties consented to give binding effect (except for appellate review) to the retired judge‘s decision, or that the parties elected to employ a court reporter who was present to record the oral settlement agreement, does not transform what is not a proceeding before a court into one that is before a court. The key under
“We recognize, as did the court in Datatronic, that pretrial settlements are favored and are to be encouraged. (Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d at pp. 1173-1174.) We also recognize the parties could have taken steps which might have made the settlement effective and
“There is no other basis in this record upon which to conclude the parties were before a court when they recited the oral settlement agreement. The retired judge was not acting in the capacity of a temporary judge under Article VI, section 21 of the California Constitution or
“It is true the strict requirements of [California Rules of Court,] rule 244 are not jurisdictional. (In re Horton (1991) 54 Cal.3d 82, 90 [284 Cal.Rptr. 305, 813 P.2d 1335].) California case law has recognized for some time that voluntary participation before a subordinate officer who lacks authority in that capacity may be tantamount to an agreement that he or she act as a temporary judge. Thus, in a matter tried before a referee of the superior court, it has been held where the parties acted in accordance with the rulings of the referee, strict compliance with rule 244 is not necessary. (In re Mark L. (1983) 34 Cal.3d 171, 178-180 [193 Cal.Rptr. 165, 666 P.2d 22].) Similarly, a court commissioner may conduct a trial in a capital case where no oral or written stipulation of the parties authorized the commissioner to sit as a temporary judge but where defense counsel, knowing the officer was a court commissioner, proceeded to trial without objection. (In re Horton, supra, 54 Cal.3d at pp. 91-93.) However, this tantamount-to-a-stipulation rationale has thus far been applied to cases involving official court referees and commissioners before whom proceedings were conducted without adequate written stipulations. (In re Mark L., supra, 34 Cal.3d 171, 178-179.) Here, it is undisputed the retired judge was not an appointed and sworn commissioner or referee of a court of this state, and he did not purport to be acting as a temporary judge of the superior court.
“Finally, the evidence does not support a conclusion that the retired judge was a special master appointed by the Superior Court or that he acted in an official capacity as a retired judge assigned by the Chief Justice of California to perform the duties of a judge of the Fresno County Superior Court. (See
The Court of Appeal disposed of the matter of sanctions in short order.
“At the hearing on the motion under
“We need not decide the merits of the parties’ respective contentions on this subject concerning the scope and application of [former]
The Court of Appeal rendered judgment accordingly.
II
The majority are contrary to the Court of Appeal. Their reasoning is different. So is their result. They are wrong.
As originally enacted in 1981,
Early in 1993, the Court of Appeal below gave the Legislature an all but express invitation to abrogate
In amending
In parts of their opinion, the majority appear simply to remove
In other parts of their opinion, the majority appear “merely” to deprive
The majority‘s rewriting of “before the court” as “before the court or a ‘quasi-court‘” deserves little comment. It is tantamount to repeal.
The majority‘s rewriting of “before the court” as “before the court or an arbitrator” deserves comment only slightly more extensive. They assert that the “1993 amendment . . . was part of” a bill that “related primarily to . . . arbitration . . . .” (Maj. opn., ante, at p. 905, fn. 5.) Had the Legislature intended what they claim to discover, it would surely have spoken the word “arbitrator” or one of its cognates. It did not. Its silence is deafening.
The illegitimacy of the majority‘s efforts to remove
When parties to pending litigation enter into a settlement, they enter into a contract. Such a contract is, of course, subject to the general law governing all contracts. (Cf. T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277-283 [204 Cal.Rptr. 143, 682 P.2d 338] [speaking of offers by a party to compromise under
Obviously, the Legislature may exempt settlements otherwise within the coverage of the statute of frauds from invalidity thereunder. It may do so expressly. It may apparently also do so impliedly, to the extent that such settlements are “enforceable” under
Just as obviously, however, a court may not make any similar exemption. It may not do so expressly. It may not do so impliedly, by construing
It must be emphasized that to construe
On one point at least, the majority are right. To construe
III
For the reasons stated above, I would affirm the judgment of the Court of Appeal.
Baxter, J., concurred.
KENNARD, J.—I dissent.
The Legislature, by statute, has defined the conditions under which a court may grant a party‘s motion to enforce an agreement to settle pending litigation. The Legislature has decided that a court should grant such a motion if, but only if, (a) the agreement is in writing and signed by the parties, or (b) the agreement has been recited “before the court.” (
A basic rule of law, rooted in the doctrine of separation of powers, states that courts may not enlarge the terms of a statute. (
In deciding the conditions under which settlement agreements should be enforced, the Legislature undoubtedly sought to further the strong public policy in favor of settlement agreements. But this is not the only interest at stake. If it were, the Legislature would have enacted a much broader statute, permitting parties to enforce by motion virtually any settlement agreement that promised to terminate the litigation in whole or in significant part. That the Legislature did not enact such a statute shows its sensitivity to other values worthy of consideration.
Another interest at stake here is the parties’ interest in avoiding the loss of valuable rights through agreements they do not fully understand or have not carefully considered. Because litigation is enormously expensive, and court resources are strained to the limit, pressure to settle is intense. Under the weight of this pressure, a party may give an indication of assent to settlement terms without fully comprehending their meaning or appreciating their consequences. By providing that the agreement be reduced to writing and signed, or recited and assented to in the presence and under the supervision of a duly sworn judicial officer, the Legislature has sought to protect parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle. (See City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 762 [234 Cal.Rptr. 353].)
There is also a substantial public interest in avoiding unnecessary litigation. Nothing is gained if the price of settling a lawsuit is a new round of litigation about the meaning or enforceability of the settlement agreement. To avoid this new round of litigation, the terms of the agreement and the parties’ assent thereto must be memorialized in a way that minimizes later factual disputes. By requiring either a writing signed by the parties or a recitation before a duly sworn judicial officer who can be counted upon to make the inquiries necessary to clear up any ambiguities, the Legislature has sought in
Should the scope of
The interest of the parties in avoiding poorly understood and improvident agreements seems to be of little concern to the majority. The majority states that when parties have reached a settlement, any delay resulting from lack of immediate access to a courtroom would permit parties to renege and thereby impede use of alternative dispute resolution devices. (Maj. opn., ante, p. 910.) I submit that any agreement so fragile that it collapses on the way to the courthouse does not truly reflect mature and deliberate assent by the parties and for that very reason should not be enforced.
The interest of the judiciary in establishing a record that eliminates factual disputes likewise receives scant consideration by the majority. Here, the arbitrator did not participate in the settlement negotiations. When the agreement was recited before him, the arbitrator made no effort to clarify the agreement‘s terms, and he accepted at face value, without further inquiry, the parties’ statements that they understood the agreement. Because the arbitrator reasonably believed that his role in the litigation was at an end, it is not surprising that he made no further effort to make a record that would minimize later factual disputes and provide solid assurance that the parties’ assent to the agreement was knowing and voluntary.
The Court of Appeal correctly concluded that the statutory conditions under which a court is permitted to enforce a settlement agreement on motion by a party are not present here. Rather than rewrite the statute, I would affirm the judgment of the Court of Appeal.