Marriage of Assemi, In re, S032852

CourtUnited States State Supreme Court (California)
Citation7 Cal.4th 896,872 P.2d 1190,30 Cal.Rptr.2d 265
Decision Date26 May 1994
Docket NumberNo. S032852,S032852
Parties, 872 P.2d 1190 In re Marriage of Farid and Shirin ASSEMI. Farid ASSEMI, Respondent, v. Shirin ASSEMI, Appellant.

Page 265

30 Cal.Rptr.2d 265
7 Cal.4th 896, 872 P.2d 1190
In re Marriage of Farid and Shirin ASSEMI.
Farid ASSEMI, Respondent,
Shirin ASSEMI, Appellant.
No. S032852.
Supreme Court of California,
In Bank.
May 26, 1994.

[7 Cal.4th 900]

Page 267

Shirin Assemi, in pro per.

Fletcher & Fogderude and [872 P.2d 1192] Norman L. Fletcher, Fresno, for appellant.

Stephen A. Kalemkarian, David C. Kalemkarian and Bernard N. Wolf, San Francisco, for respondent.

GEORGE, Justice.

Code of Civil Procedure section 664.6 1 provides that "[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally on the record 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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." 2 The issue for our determination is whether, under the circumstances of this marital dissolution proceeding, the oral stipulation for settlement was made "before the court" within the meaning of section 664.6.

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 section 664.6.

Accordingly, we conclude the trial court properly entered judgment pursuant to section 664.6, enforcing the oral stipulation for settlement between [7 Cal.4th 901] Farid Assemi (husband) and Shirin Assemi (wife). For this reason, the judgment of the Court of Appeal, overturning the trial court judgment on the ground the stipulation was not made "before the court" within the meaning of section 664.6, must be reversed.


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

Page 268

[872 P.2d 1193] stipulation and order provided for the appointment of a retired judge to act as an arbitrator, [7 Cal.4th 902] with the "arbitration" proceedings to be transcribed by a reporter and governed by the rules of evidence and court procedures applicable to superior court trials, and the decision of the arbitrator to be appealable by either party as would be any other final judgment of the superior court.

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 section 664.6, to enforce the parties' "oral stipulation," also requesting an award of attorney fees and costs as sanctions pursuant to former Civil Code former section 4370.6. In support of the motion, husband filed his own declaration and declarations of his counsel (Stephen Kalemkarian and Kalemkarian's associate), as well as a transcript of the October 1, 1990, proceedings setting forth the terms of the settlement agreement to which the parties had stipulated.

[7 Cal.4th 903] 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

Page 269

"[t]he stipulation [872 P.2d 1194] 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 Civil Code former section 4370.6, husband presented billings for attorney fees and costs incurred in attempts to enforce the stipulation.

When husband moved for entry of judgment, wife asserted in opposition, among other things, that the oral stipulation was not enforceable under [7 Cal.4th 904] section 664.6 because it had not been presented "before the court" in a judicially supervised proceeding. Wife also submitted her declaration stating that the oral stipulation should not be enforced because it was "grossly unfair" to her.

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, 19 Cal.App.4th 964, 19 Cal.Rptr.2d 7. The appellate court concluded the oral stipulation for settlement approved by Judge Meyers had not been made "before the court" in the context of section 664.6, because Judge Meyers had not been acting as a judge (i.e., an officer appointed to preside and to administer the law in a court of justice), but solely as an "arbitrator" who was supervising settlement negotiations in the course of an arbitration proceeding. 4...

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