Corkland v. Boscoe

• Decision Date: 05 June 1984
• Court: California Court of Appeals Court of Appeals
• Parties: Alvin CORKLAND, Plaintiff and Respondent, v. Jerrold BOSCOE et al., Defendants and Appellants. AO15176.

Page 356

203 Cal.Rptr. 356

156 Cal.App.3d 989

Alvin CORKLAND, Plaintiff and Respondent, v. Jerrold BOSCOE et al., Defendants and Appellants.

AO15176.

Court of Appeal, First District, Division 5, California.

June 5, 1984.

Roger L. Meredith, Law Offices of Jack K. Berman, San Francisco, for plaintiff and respondent.

Randall E. Kay, New & Kay, San Francisco, for defendants and appellants.

KING, Associate Justice.

In this case we hold that if parties to pending litigation stipulate orally before the court or in writing to a settlement of all or a part of the case, the trial court upon the motion of a party may enter judgment pursuant to the terms of the settlement. The Legislature has now provided that a motion to enter judgment pursuant to such a settlement need not be a motion for summary judgment.

Jerrold A. Boscoe and Ducorp, Inc., appeal from an order in two consolidated cases granting a motion by Alvin Corkland to compel enforcement of a settlement agreement. We affirm the order.

In 1980 Boscoe and Corkland each filed complaints arising from a dispute over transactions and ventures concerning certain real properties. The parties filed a written settlement agreement on September 8, 1980, which provided for the execution and exchange of various documents including promissory notes and deeds of trust.

On March 10, 1981, Corkland filed a motion to compel enforcement of the settlement agreement. In a supporting declaration he stated that he had performed all of his obligations (except for making a $12,500 payment that was not due until Boscoe and Ducorp, Inc., had fully performed their obligations), and that four acts remained to be performed by Boscoe and Ducorp: (1) execution and delivery of a $150,000 note and deed of trust, (2) execution and delivery of a $310,000 promissory note, (3) execution and delivery of an accompanying $310,000 trust deed modification, and (4) division and delivery of certain furniture. The motion and supporting declaration did not mention the fact, as set forth in both parties' briefs on appeal and referred to in the trial court's subsequent order, that Boscoe and Ducorp had already tendered the disputed documents but had subsequently withdrawn them.

In their opposition memorandum, Boscoe and Ducorp stated that on March 13, 1981, they had tendered performance of the first three acts remaining to be performed (execution and delivery of the various documents), and that the parties had agreed that performance of the fourth act (division and delivery of furniture) would be arranged between the parties. Their memorandum also made no mention of the prior delivery and withdrawal of documents, and the documents delivered on March 13 apparently differed in form from the withdrawn documents. Boscoe and Ducorp filed no opposing declarations or affidavits, and the record contains no transcript of the hearing on the motion.

At the hearing on the motion to compel, counsel for Corkland evidently argued that Corkland was entitled to execution and delivery of documents in the same form as the withdrawn documents. On the day after the hearing, counsel for Boscoe and Ducorp wrote a letter to the court, asserting that the documents whose execution and delivery were sought by counsel for Corkland at the hearing (evidently the withdrawn documents) were "inconsistent" with the terms of the settlement agreement. The letter did not identify any of the alleged inconsistencies. In an answering letter, counsel for Corkland argued in favor of the consistency of the withdrawn documents.

The court granted the motion to compel. In its order it stated, "it is clear that the settlement agreement includes not only that document denominated 'Settlement Agreement,' but the two promissory notes and deeds of trust executed pursuant thereto and later withdrawn by Boscoe. It is indisputed that there was a meeting of the minds of all the parties as to all material portions of the notes and deeds, and there is no substantial reason to further delay the consummation of the agreement." (Emphasis added.)

Boscoe and Ducorp challenge the use of the nonstatutory "speaking" motion to enforce the settlement agreement. They rely on Hastings v. Matlock (1980) 107 Cal.App.3d 876, 166 Cal.Rptr. 229, which disapproved the use of such a motion to compel enforcement of an unpleaded, out-of-court oral settlement. Corkland relies on Gregory v. Hamilton (1978) 77 Cal.App.3d 213, 142 Cal.Rptr. 563, which approved the use of a nonstatutory "speaking" motion to enforce a judicially supervised settlement agreement. In granting the motion the court below specifically determined that Hastings was distinguishable and that Gregory applied.

Numerous decisions have criticized Gregory, holding that a motion to enforce a settlement agreement must be treated as a motion for summary judgment (which is to be denied if there is a disputed issue of material fact). ¹ (Duran v. Duran (1983) 150 Cal.App.3d 176, 179, 197 Cal.Rptr. 497 [court specifically overruled its prior decision in Ford v. State of California (1981) 116 Cal.App.3d 507, 172 Cal.Rptr. 162, which approved the use of the nonstatutory "speaking" motion sanctioned by Gregory]; DeGroat v. Ingles (1983) 143 Cal.App.3d 399, 401, 191 Cal.Rptr. 761; Mancina v. Hoar (1982) 129 Cal.App.3d 796, 801, 181 Cal.Rptr. 347; Nabi v. Laudermill (1982) 130 Cal.App.3d 282, 284, 182 Cal.Rptr. 368; Hastings v. Matlock, supra, 107 Cal.App.3d at p. 880, 166 Cal.Rptr. 229.) According to these decisions, the only appropriate procedures for enforcement of settlement agreements are to move for summary judgment, to file a separate suit in equity to enforce the agreement, or (if the defendant is attempting to enforce settlement) to amend the pleadings and assert the settlement as an affirmative defense.

This court recently reviewed Gregory and its progeny in Gopal v. Yoshikawa (1983) 147 Cal.App.3d 128, 195 Cal.Rptr. 36. We observed that "DeGroat, Nabi, Mancina, and Hastings, supra, all had complications which were not present in Gregory, nor in the instant case. They all involved either out-of-court negotiations, enforcement by a judge other than the one who presided over the settlement conference, or conditional settlements in which it was alleged that a condition subsequent failed to materialize. The themes common to these criticisms of the enforcement procedures concern the extent of judicial supervision and disputes over whether an agreement was reached or, if so, its terms." (Id., at p. 132, 195 Cal.Rptr. 36.) Similarly, Duran v. Duran, supra, which was decided after Gopal, also involved an alleged out-of-court settlement. (Duran v. Duran, supra, 150...