IN RE: the MARRIAGE OF Farid D. and Shirin D. ASSEMI. (1993)

OPINION

 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).

FACTS AND PROCEEDINGS BELOW

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.”

DISCUSSION

I. Section 664.6

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.

II. Arbitration

 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.)  “ ‘Judicial arbitration’ is obviously an inapt term, for the system it describes is neither judicial nor arbitration.   The hearing is not conducted by a judge,⁶ and the right to a trial de novo⁷ removes the finality of true arbitration.  ‘Extrajudicial mediation’ would be closer to correct.”  (Dodd v. Ford, supra, 153 Cal.App.3d 426, 432, fn. 7, 200 Cal.Rptr. 256.)

While the trial court may retain some jurisdiction over cases it has ordered to judicial arbitration (see, for example, Nanfito v. Superior Court, supra, 2 Cal.App.4th at pp. 319–320, 2 Cal.Rptr.2d 876.), this does not mean the proceedings before the arbitrator are “judicially supervised.”   The opposite is the case.   When a timely arbitration takes place as ordered, the court will not have occasion to deal with the action unless there is a proper request for a trial de novo.  (See Code Civ.Proc., § 1141.23.)   If a trial de novo occurs, the award will be relevant only with respect to the fixing of costs.  (See Code Civ.Proc., § 1141.20.)   In addition, the fact that the California Rules of Court provide detailed provisions concerning the selection of arbitrators (see Cal.Rules of Court, Rules 1601–1609) and the conduct of the hearings (see Cal.Rules of Court, Rules 1610–1614) only makes the process subject to those rules;  it does not make the process subject to direct judicial supervision.   We find nothing in the Judicial Arbitration Act which discloses a legislative intent to treat judicial arbitrators as judges for purposes of the application of section 664.6.

 General arbitration (Code Civ.Proc., § 1280 et seq.) has even less connection to California courts.   A general arbitration agreement is independently enforceable, and “has a life of its own outside the judicial system.”  (Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1316, 251 Cal.Rptr. 749.)⁸  The involvement of the trial court is limited to “hearing motions to compel arbitration and enforce any award”.  (Dodd v. Ford, supra, 153 Cal.App.3d at p. 432, 200 Cal.Rptr. 256.)   The rules pertaining to the selection of arbitrators and the conduct of the hearings are matters almost entirely subject to the mutual desires of the parties.  (Code Civ.Proc., § 1282.2;  Blanton v. Womancare, Inc., supra, 38 Cal.3d 396, 402, fn.5, 212 Cal.Rptr. 151, 696 P.2d 645.)   For example, general arbitration proceedings may be conducted by anyone selected by the parties, such as a non-lawyer with special expertise in a particular field.  (Gear v. Webster (1968) 258 Cal.App.2d 57, 63, 65 Cal.Rptr. 255 [real estate agents and real estate brokers];  Hope v. Superior Court (1981) 122 Cal.App.3d 147, 150, 154–155, 175 Cal.Rptr. 851 [Members of the New York Stock Exchange].)  The policy underlying section 664.6 cannot favor a construction of the statute that would equate a general arbitrator with a public judicial officer or the general arbitration process with a judicially supervised proceeding.

The lack of any requirement that a formal record be kept of judicial or general arbitration proceedings is also crucial.   The Judicial Arbitration Act does not make any provision for reporters.   California Rules of Court, Rule 1614, subdivision (b), expressly prohibits a record of the proceeding except as directed by the arbitrator for his or her personal use only.   Under the General Arbitration Act, the use of court reporters is a matter left to the agreement of the parties.  (Code Civ.Proc., § 1282.2.)   In the absence of a formal record, where the recollections or personal notes of the attorneys, parties, or arbitrator are the only means by which the trial court on a motion under section 664.6 may determine the terms of the purported settlement, “the intent of the parties when they verbalized the settlement is vulnerable to conflicting interpretations.”  (City of Fresno v. Maroot, supra, 189 Cal.App.3d at p. 762, 234 Cal.Rptr. 353.)   Use of a summary procedure in such circumstances is inappropriate.  (Ibid.)

 That the parties in this case may have included provisions in their agreement which modified procedures otherwise applicable to judicial or general arbitration, or both, is immaterial.   For example, the fact the parties consented to give binding effect (except for appellate review) to the retired judge's decision, or that the parties elected to employ a court reporter who was present to record the oral settlement agreement, does not transform what is not a proceeding before a court into one that is before a court.   The key under section 664.6 is the identity of the officer who supervises the proceeding where the oral settlement is recited.   For the same reason, it is also immaterial that the proceeding was “solemn” or that the parties may have understood the terms and intended binding effect of the settlement agreement.

 We recognize, as did the court in Datatronic, that pretrial settlements are favored and are to be encouraged.  (Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d at p. 1173–1174, 222 Cal.Rptr. 658.)   We also recognize the parties could have taken steps which might have made the settlement effective and enforceable, such as immediately returning to the trial court and placing the agreement on the record before a family court judge or stipulating before the retired judge that the agreement become the award of the arbitrator in the arbitration proceedings.   However, they did no such thing and we are not called upon here to determine whether any action of that sort would have been efficacious.   On the facts before us, we cannot refuse to apply a specific statute such as section 664.6 according to its plain meaning in order to carry out some purpose that does not appear on the face of the statute.  (People v. Knowles (1950) 35 Cal.2d 175, 182–183, 217 P.2d 1.)   The Legislature is certainly free to amend section 664.6 if it wishes.

III.–IV **

DISPOSITION

The order enforcing the oral settlement under section 664.6 is reversed.   The ancillary order for sanctions under Civil Code section 4370.6 is also reversed.

FOOTNOTES

1.   There is no evidence in this record to support a determination that the oral settlement was subject to the condition subsequent that it be reduced to writing.

2.   Respondent does not dispute this assertion.

3.   The agreement to submit the remaining disputed issues to a retired judge for a final decision was contained in a written “Stipulation and Order,” which covered, in addition to the provisions concerning arbitration, a number of subjects, including the vacation of the trial date, the joint legal and physical custody of the minor children of the marriage, and the bifurcation of the trial and the entry of a judgment of dissolution of the marital status.   The portion of the document comprising the stipulation was signed by the parties and their respective attorneys.   The portion comprising the order was signed by Judge Papadakis, acting judge of the superior court.

4.   For purposes of this opinion, we do not consider the effect, if any, of California Rules of Court, Rule 1600.5, which exempts family law actions from judicial arbitration.

5.   The provisions of the two statutory schemes are independent and mutually exclusive.  (Porreco v. Red Top RV Center (1989) 216 Cal.App.3d 113, 118–119, 264 Cal.Rptr. 609.)   Private arbitration is by its essence binding while judicial arbitration offers the opportunity for a de novo trial after the arbitration has been completed.  (Porreco, supra, 216 Cal.App.3d at pp. 118–119, 264 Cal.Rptr. 609;  see also Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 402, 212 Cal.Rptr. 151, 696 P.2d 645;  Code Civ.Proc., §§ 1141.20, 1141.30, 1285.)Whether an agreement is one for general arbitration or one for judicial arbitration is to be determined in accord with the standard rules which apply to the construction of all contracts;  the decisive factor is the parties' objective intention at the time the agreement was entered into.   (Porreco, 216 Cal.App.3d at p. 119, 264 Cal.Rptr. 609.)

6.   A judge may, however, serve without compensation.  (§ 1141.18.)

7.   It has been held that this right may be waived without taking the parties' agreement outside the scope of judicial arbitration.  (See Porreco v. Red Top RV Center, supra, 216 Cal.App.3d at p. 119, 264 Cal.Rptr. 609;  compare Dodd v. Ford (1984) 153 Cal.App.3d 426, 431–432, 200 Cal.Rptr. 256 and Porreco v. Red Top RV Center, supra, 216 Cal.App.3d at p. 119, 264 Cal.Rptr. 609.)

8.   As we earlier noted, we take no position about whether the provision in this case for binding arbitration before the retired judge made the parties' agreement one for general as opposed to judicial arbitration.  (See Dodd v. Ford, supra, 153 Cal.App.3d at p. 431–432, 200 Cal.Rptr. 256 and Porreco v. Red Top RV Center, supra, 216 Cal.App.3d at p. 119, 264 Cal.Rptr. 609.)

FOOTNOTE.   See footnote *, ante.

DIBIASO, Associate Justice.

ARDAIZ, Acting P.J., and VARTABEDIAN, J., concur.