Marriage of Assemi, In re
| Decision Date | 14 April 1993 |
| Docket Number | No. F015899,F015899 |
| Citation | 14 Cal.App.4th 1490,19 Cal.Rptr.2d 7 |
| Parties | Previously published at 14 Cal.App.4th 1490, 19 Cal.App.4th 964 14 Cal.App.4th 1490, 19 Cal.App.4th 964 In re the MARRIAGE OF Farid D. and Shirin D. ASSEMI. Farid D. ASSEMI, Respondent, v. Shirin D. ASSEMI, Appellant. |
| Court | California Court of Appeals Court of Appeals |
We hold that an oral settlement agreement recited before an arbitrator appointed pursuant to either the Judicial Arbitration Act (Code Civ.Proc., § 1141.10, et seq.) or the General Arbitration Act (Code Civ.Proc., § 1280 et seq.) may not be enforced on motion under Code of Civil Procedure section 664.6 (hereafter section 664.6).
On June 13, 1990, the day originally set for trial of their marital dissolution action, 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. Shortly before the arbitration hearing began, the parties undertook settlement negotiations and informed the retired judge that they might be able to arrive at a complete resolution of their controversy. The retired judge consented to the parties' request to postpone the hearing, with the understanding that if the case was not settled the contested proceeding would begin immediately.
The parties, their attorneys and their CPA's 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, the husband noticed a motion requesting entry of judgment pursuant to section 664.6 and demanding attorney fees as sanctions pursuant to Civil Code section 4370.6. The motion was heard on March 6, 1991. After lengthy arguments, the court ordered enforcement of the settlement pursuant to section 664.6. It found that the binding arbitration was a "judicially supervised proceeding," the importance and solemnity of which were understood by the parties. The court also determined that the parties understood and consented to the terms of the settlement agreement, understood it was intended to resolve the action, and understood it was to "be a binding agreement for both of them."
Section 664.6 provides as follows:
"If parties to pending litigation stipulate, in writing 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 statute, which took effect on January 1, 1982, provides an expedient and cost effective means of enforcing settlement agreements. (Estate of Dipinto (1986) 188 Cal.App.3d 625, 630, 231 Cal.Rptr. 612.) Before its enactment, parties often brought nonstatutory speaking motions to implement alleged settlement agreements. This device maintained a questionable and checkered legal standing. Though there was some support for its use, most courts criticized the procedure. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 992-993, 203 Cal.Rptr. 356.) By the enactment of section 664.6, the Legislature endorsed and expanded speaking motions to enforce settlement agreements. (Corkland, 156 Cal.App.3d at p. 994, 203 Cal.Rptr. 356; Richardson v. Richardson (1986) 180 Cal.App.3d 91, 96, 225 Cal.Rptr. 370.)
Appellant contends the trial court erred when it enforced the oral agreement because the settlement was neither in writing 2 nor made "before the court." She claims the retired judge was not a judicial officer within the contemplation of the statute. Respondent counters that the proceeding before the retired judge had all the indicia of a formal proceeding and therefore satisfied the spirit and intent of section 664.6.
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, 222 Cal.Rptr. 658.) 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 section 664.6. The trial court entered an order enforcing the oral agreement.
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 at p. 1173, 222 Cal.Rptr. 658.) 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, 222 Cal.Rptr. 658.) 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, 234 Cal.Rptr. 353.)
The Maroot court found Datatronic's reasoning to be sound, and reversed the trial court's order enforcing the oral stipulation. "Unless the [settlement] agreement is judicially supervised or in writing and signed by the parties, the intent of the parties when they verbalized the settlement is vulnerable to conflicting interpretations and the summary procedure authorized by section 664.6 should not be available." (Id. at p. 762, 234 Cal.Rptr. 353.)
We agree with the literal interpretation placed on section 664.6 by Datatronic and followed by Maroot. In most instances, the words "court" and "judge" are used synonymously in statutes, and will be construed as such when it is necessary to carry out the obvious purpose of the Legislature. (See Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 424, 152 Cal.Rptr. 31; Newby v. Bacon (1922) 58 Cal.App. 337, 339, 208 p. 1005.) In general, a "judge" is "a public officer, appointed to preside and to administer the law in a court of justice." (Black's Law Dictionary (6th ed., 1990), p. 841; see also Elections Code §§ 28 & 29.) We find nothing which suggests the Legislature meant anything different when it used the word "court" in this statute. Accordingly, "before the court" means precisely what it says; an oral settlement agreement is not enforceable under section 664.6 unless it has been recited on the record before a judge of a court of this state authorized to act as such under the laws of this state.
We need not determine whether the parties' stipulation 3 in this case was one for general arbitration under Code of Civil Procedure section 1280 et seq., which applies to arbitration conducted pursuant to a private agreement between the parties, or instead one for judicial arbitration under Code of Civil Procedure section 1141.10 et seq., 4 which applies to arbitration under the auspices of the judicial system. 5 Regardless of which arbitration scheme this agreement fell into, the parties were not "before [a] court" when they recited their settlement before the retired judge.
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.) (Dodd v. Ford, supra, 153 Cal.App.3d 426, 432, fn. 7, 200 Cal.Rptr. 256.)
While the trial court may retain some...
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