Metropolitan News-Enterprise


Monday, January 6, 2003


Page 1


Party That Missed Hearing, But Later Signed Settlement, Allowed to Enforce It Under Code of Civil Procedure


By ROBERT GREENE, Staff Writer


A litigant who was not on hand in court to orally accept a settlement agreement, but later agreed to it in writing, may enforce the accord under the settlement provisions of Code of Civil Procedure Sec. 664.6, this district’s Court of Appeal ruled Friday.

The fact that one of the parties present in court later declined to back up his oral settlement by signing the seven-page written contract did nothing to block enforcement, Justice Robert Mallano wrote for Div. One. It made no difference that the writing contained terms that were not in the oral agreement, since both were materially the same, he said.

“Often, in cases where an oral settlement is placed in the record in a trial court, a written agreement will follow,” Mallano explained. “If difficulties or unresolvable conflicts arise in drafting the written agreement, the oral settlement remains binding and enforceable under section 664.6. Having orally agreed to settlement terms before the court, parties may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms.”

Sec. 664.6 provides that if parties to pending litigation stipulate, “in a writing signed by the parties outside the presence of the court 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 appeals court ruling upholds an order by Los Angeles Superior Court Judge Alban Niles, since retired, enforcing the settlement and expunging a lis pendens filed against a piece of property by would-be purchaser Morad Elyaoudayan, giving notice that the parcel was the subject of litigation.

Elyaoudayan apparently had agreed in Niles’ court on May 16, 2001 to put an end to litigation he had brewing with the sellers and the tenants. He agreed to lift the lis pendens and not to try to buy the property, in exchange for $25,000 from plaintiffs Ben and David Eghballi, who would remain on the property as tenants.

The Eghballis also were in court and also orally agreed to the settlement.

But Leo and Hanna Hoffman, who had title to the property, could not attend the settlement conference that day because they were ill and were being cared for by their daughter, Tina Kushner, who also was a party to the suit.

The Hoffmans and Kushner later signed a written version of the settlement agreement.

By then, though, Ben Eghballi had missed the first of several payments that he was to have made to Elyaoudayan. Sensing the deal was not working, Elyaoudayan sought to back out and refused to sign the written agreement when it was sent to him.

He also declined to remove the lis pendens.

Elyaoudayan argued that there was no enforceable agreement under Sec. 664.6. There was no agreement “orally before the court” he reasoned, since the Hoffmans and Kushner weren’t there to join, and there was no written agreement, since he didn’t sign anything.

Niles saw it differently. So did Div. One.

Mallano called Elyaoudayan’s arguments “inconsistent with common sense and practicality.” The fact that the Hoffmans couldn’t attend the settlement hearing due to illness “should not preclude the other parties from reaching an oral settlement in court and allowing the Hohhmans to agree to the settlement in writing outside the court,” he said.

The case is Elyaoudayan v. Hoffman, 03 S.O.S 75.


Copyright 2003, Metropolitan News Company