The pressure to settle family law cases is intense. We’ve all seen judges lecture clients about how the best custody schedules are decided by the parents rather than the children, and how litigating over property and support will drain the family estate to the dregs. Unrepresented parties find themselves in FCS mediation sessions with the belief they must agree. The purpose of Mandatory Settlement Conferences, where temporary judges are employed, is to pressure parties to reach an agreement today. While often frustrating when we know our client is in the right and the other side is being unreasonable, in many, perhaps most cases, there will come a time when further litigation will not be able to recover more money than would be gained by simply taking whatever offer is on the table at the moment. Whether that settlement offer comes from grudging, attritional negotiation, the successful result of skillful litigation before that point, the case will enter its endgame.
Settlement is usually a multi-stage process, and there are dozens of steps along this process where the agreement may stumble and the parties may be sent back to the negotiating table or back to Court. However, once both parties have signed and initialed a document, we generally allow ourselves a sigh of relief. The hard part, we tell ourselves, is over. For good or for ill, the agreement has been reached.
But what is it that has changed with that signature? It is not quite the process of offer and acceptance we are taught in law school, though it is closely related. The answer is Code of Civil Procedure §664.6
WHAT IS CODE OF CIVIL PROCEDURE §664.6?
CCP 664.6, in summary, says that a party may make a motion to enter as a judgment a stipulation in writing signed by the parties, or recited before the court. Before §664.6, the only means for enforcing a settlement was often a for summary judgment under CCP §437(c) or a nonstatutory “speaking” motion. (Corkland v. Bosco (1984) 156 Cal.App.3d 989) Enforcement via §664.6 derives from contract law and is subject to the same limitations and governing principles as any other written agreement. This means that attempts to stipulate can be withdrawn like an offer before they are signed (Sully-Miller Contracting Co v. Gledson/Cashman Construction (2002) 126 Cal.App.4th 30, 35-36); and the language of the stipulation should be interpreted to give effect to the mutual intent of the parties. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, citing Gouvis Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 649).
What are the Limitations?
CCP §664.6 is powerful, but not unlimited. As we know, statutes mean what they say, no more and no less (at least, most of the time). Firstly, the parties must have actually agreed to the settlement terms. (Hines v. Lukes (2008) 167 Cal.App.4th 1174). This has a twofold effect – if there was not agreement, the court cannot enter judgment, but also, the Court cannot insert terms that were not actually agreed to. (Leeman v. Adams Extract & Spice, LLC, supra 236 Cal.App.4th 1367). The Court may not create the material terms of a settlement, s opposed to deciding what terms the parties themselves have agreed upon. (Steller v. Sears (2010) 189 Cal.App.4th 175).
As oral agreements before the Court, or written agreements reached during a settlement conference, are often necessarily abbreviated and imprecise. Before enforcing a settlement, the Court must assess whether the settlement terms were “reasonably well defined and certain” and whether the parties explicitly acknowledged they understood and agreed to be bound by the terms. (In re Marriage of Assemi (1994) 7 Cal.4th 896). There are often subsequent attempts to reduce the more informal agreement to a writing, and it is not unusual for buyer’s remorse to kick in during these negotiations. If those subsequent negotiations fall through, the Court may not enter any of those more complex terms as a judgment, but neither does refusal to sign a subsequent written agreement allow one to escape a §664.6 motion on terms orally entered before the Court. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429-1430).
There are a number of cases dealing with specific edge case scenarios involving §664.6. Originally, §664.6 did not allow for attorneys to enter stipulations on their clients’ behalf. Indeed, a court ruled that it applies even when attorneys are not present for and do not ratify the agreement. (In re Marriage of Hasso (1991) 229 Cal.App.3d 1174). Thanks to an update to the statutory language on January 1, 2021, an attorney may sign or represent a client’s agreement orally at court. (Greisman v. FCA US, LLC (2024) 324 Cal.Rptr.3d 182). We know that a settlement entered before an arbitrator and supervisor of settlement proceedings may be enforced, while a settlement recited before a court reporter at a deposition does not. (In re Marriage of Assemi (1994) 7 Cal.4th 896, City of Fresno v. Maroot (1987) 189 Cal.App.3d 755).
This author is not aware of any cases interpreting the effects of §664.6 on custody or domestic violence cases. In fact, our firm is currently litigating an appellate case relating to this question. The opinion of this author is that §664.6 should not be applied in those cases because there is an independent duty of the Court to make findings in both those types of cases. There is support for this application in In re Jason E, a juvenile dependency case in which the parents’ agreement did not override the dependency court’s duty to choose the child’s best interests. (In re Jason E (1997) 53 Cal.App.4th 1540, 1547-48). Although not a family case, the court in Leeman found that an agreement did not override the requirement for findings under Health and Safety Code §25249.7. (Leeman v. Adams Extract & Spice, LLC supra 236 Cal.App.4th at 1376). It is a known problem in DV specifically that parties are often pressured to settle when it is against their best interests, which can cause tragic outcomes. (Fam. Code §6305, Melissa G. v. Raymond M (2018) 27 Cal.App.5th 360). Although the legislature has attempted to redress this via statute, it is a recurring problem.
CONCLUSION
CCP §664.6 is a powerful statute that works with California’s strong public policy in favor of settlement. Unfortunately, the overworked, overburdened court system often attempts to bully litigants into settling when it may not be in their best interests, a perennial problem. It is vitally important to not only guide clients towards favorable settlements, but to empower them not to allow litigation fatigue and pressure from an overworked court to settle for something that is against their best interests. §664.6 is waiting in the wings, and sometimes a signature or spoken assent born from a moment of emotion is sufficient to derail an entire case.
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