In a decision which will have impacts in regard to settlements for some
time to come, the California Court of Appeal, Fourth Appellate District, ruled in
Glenn Provost v. Regents of the University of California (2011) 201 Cal.App.4th
1289 ("Provost") that a Stipulation to Settle, executed as part of a Mediation by
the Plaintiff, is binding against the Plaintiff even though the primary defendant
(an employer) only had an in-house counsel attorney sign the Stipulation, and
individual defendants (who were not paying any money to the Plaintiff) had not
signed the Stipulation in any fashion.
The facts of the Provost case are common enough. In that case, the
Plaintiff, Glenn Provost, who had been employed by the Regents of the
University of California ("Regents") as an anesthesiologist at the University of
California Irvine Medical Center, filed a Complaint under the California
Whistleblower Protection Act, Government Code § 8547, et seq., against the
Regents and two physicians at the Medical Center, Peter Breen and Cindy
Anderson. Setting out several causes of action, the Complaint primarily averred
that Plaintiff was wrongfully terminated after reporting alleged illegal conduct
by the Defendants.
The parties attended Mediation in 2007 and again in 2008. Several days
after the last session in April 2008, they resumed the Mediation process which
resulted in a Stipulation to Settle the matter ("Stipulated Settlement") calling for
the payment of $475,000 to the Plaintiff and a Dismissal of the Complaint
(together with a Dismissal of a Cross-Complaint filed by the Regents). The
Stipulated Settlement incorporated a number of processing terms, including that
the terms of the Stipulated Settlement were subject to approval by the Regents.
The Stipulated Settlement was signed by four people: the Plaintiff, one of his
three lawyers, one of the Regents' in-house counsel, Carolyn Yee, and the
Defendants' attorney. It is noted that the Regents in-house counsel (Ms. Yee) had
attended all the Mediation sessions as the party representative for the Regents.
About one week later, the Plaintiff's counsel filed a Notice of Settlement of Entire
Case.
The Morrison Law Journal
January 2012
Volume VII, Edition 1
The Ties That Bind: Court of Appeal Rules That Stipulation to Settle
Executed By Plaintiff Is Binding Against Plaintiff Even Though No Party
Defendant Signed the Stipulation
By: Edward F. Morriso
n, Jr., Esq.
Larry A. Schwartz, Esq.
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Pursuant to the Stipulated Settlement, the Defendants' counsel prepared a
Settlement Agreement and Release. Having a change of heart, Plaintiff decided
that he did not want to go forward with the settlement and refused to sign the
Settlement Agreement and Release. At a Voluntary Settlement Conference
before the Court, which occurred in October 2008, and after the Regents had
approved the Stipulated Settlement, the Plaintiff advised the Court that he would
not sign the Settlement Agreement and Release under any circumstance.
Thereafter, the Regents then filed a Motion to Enforce the Stipulated
Settlement under Code of Civil Procedure § 664.6. Plaintiff Provost objected to
the Motion arguing that no party other than the Plaintiff had signed the
Stipulated Settlement. The Trial Court agreed with Plaintiff Provost. The
Regents then filed a Petition for Writ of Mandate arguing that its in-house
attorney, as its duly authorized representative, could sign the Stipulated
Settlement, and a signature by an officer was not required under Code of Civil
Procedure § 664.6 given that its in-house counsel executed the Stipulated
Settlement.
The Court of Appeal issued an alternative writ requiring that the denied
Motion be vacated and that the Trial Court decide the Motion on "the other
issues raised." The Trial Court then granted the Motion, after which a judgment,
stating all claims were released, was entered. An appeal then followed from that
judgment.
On appeal, the Court of Appeal ruled that, under Code of Civil Procedure
§ 664.6, the execution of the Stipulated Settlement by the Regents' in-house
attorney representative satisfied the statute, distinguishing Levy v. Superior
Court (1995) 10 Cal.4th 586 and another decision, Gauss v. G.F. Corp. (2002) 103
Cal.App.4th 1110.
The Court of Appeal also rejected Plaintiff Provost's arguments that the
individual Defendants had not signed the Stipulation for Settlement, holding that
they were third party beneficiaries of the Stipulated Settlement and were not
seeking to enforce the Stipulated Settlement as parties to it.
The Provost decision is important for two reasons. First, it holds that an
in-house attorney representative for an organization, such as the Regents, can
appear as a party representative and execute a binding Stipulation for
Settlement. The Provost decision is also important because it explicitly holds that
less than all persons to a Stipulation for Settlement need execute the Stipulation
for it to be binding, and that non-signatories, such as the individual doctor
Defendants in that case, would actually be construed as third party beneficiaries.
About the Authors: Edward F. Morrison, Jr. is the founding partner and
Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional
corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
Publication Note: The Morrison Law Group wishes to disseminate this
publication to all clients and colleagues of the Firm who wish to receive it.
Should any recipient desire to be removed from the distribution list, or wishes to
have a colleague added, please contact Jim Van Dusen at The Morrison Law
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Disclaimer Note: The legal article presented above is intended to provide
general information which may be of interest or use to clients and colleagues of
The Morrison Law Group and should not be construed as legal advice on any
matter.
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