WERDEGAR, J. I respectfully dissent.
This case presents a simple question of statutory interpretation: Is a settlement agreement entered into by a duly authorized attorney on behalf of his or her client enforceable under the summary procedures of Code of Civil Procedure section 664.6?1 The majority concludes it is not. Failing, as a practical matter, to distinguish between the need for authorization of a settlement agreement, on the one hand, and the manner of its execution, on the other, the majority holds that, irrespective of authorization, only settlement agreements executed by the parties personally can be enforced by the section 664.6 procedures. As will appear, this conclusion, in my view, is illogical, contrary to legislative intent, and undermining of the policy underlying enactment of section 664.6.
Citing the truism that the settlement of a lawsuit, as a decision to end the litigation, “implicates a substantial right of the litigants themselves” (maj. opn., ante, at p. 584), the majority reaches its conclusion by narrowly construing “parties” in section 664.6 to encompass only litigants, personally. For the reasons that follow, I would construe “parties” to encompass, as well, litigants acting through their duly authorized attorneys of record.
First, narrowly construing “parties," as does the majority, will waste judicial resources by precluding the enforcement of authorized attorney-signed settlement agreements under section 664.6’s summary procedures.
[587]All agree section 664.6 can be “an expedient and cost effective means of enforcing a settlement agreement.” (City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 762 [234 Cal.Rptr. 353]. See also Diaz v. May (1993) 15 Cal.App.4th 1268, 1271 [19 Cal.Rptr.2d 409].) Narrowly construing the statute will waste judicial resources, because it will bar expeditious enforcement of authorized attorney-signed settlement agreements, thereby necessitating their enforcement under more cumbersome and wasteful alternative procedures.
Section 664.6, as the majority acknowledges, “is not the exclusive means to enforce a settlement. . . . Alternative procedures are a motion for summary judgment, a separate suit in equity, or an amendment to the pleadings . . . .” (Maj. opn., ante, at p. 586, fn. 5], citing Kilpatrick v. Beebe (1990) 219 Cal.App.3d 1527, 1529 [269 Cal.Rptr. 52].) But, as the majority notes, when our Legislature promulgated section 664.6, there was sentiment that “the statutory means of enforcing settlements by motions for summary judgment, separate suits in equity, or amendments to the pleadings were inadequate . . . .” (Maj. opn., ante, at p. 585, citing Gopal v. Yoshikawa (1983) 147 Cal.App.3d 128, 132 [195 Cal.Rptr. 36].) Yet, under the majority’s construction of “parties,” attorney-signed settlement agreements will henceforth be enforceable only by way of these alternative—and inadequate—procedures.
To grasp the critical comparisons, it is important to understand that construing “parties” in section 664.6 to embrace only the party litigants, and not their counsel, will not, as a practical matter, alter the behavior of attorneys (or clients) so as to diminish the number of attorney-signed settlement agreements. The realities of litigation practice are such that, regardless of whether section 664.6 is construed narrowly, to refer only to the party litigants, or more broadly, to embrace their counsel, attorneys may be expected in any event, as a precautionary measure, to obtain litigants’ signatures on settlement agreements whenever they can do so without losing the opportunity to settle. Conversely, attorneys with settlement authority may also be expected to conclude settlements on their own signatures where time and circumstances do not permit obtaining their clients’ signatures. The possibility of enforcement litigation is only a single, relatively minor factor among the many an attorney must consider in deciding, when authorized, whether to conclude a particular settlement agreement.
Opportunities to settle pending litigation frequently present themselves within a restricted window of opportunity—often “on the steps of the courthouse.” Almost invariably, the incentive to settle when the opportunity presents itself will be greater than the incentive to delay settlement so as to secure the clients’ signatures in order to obtain an agreement that will be [588]summarily enforceable under section 664.6. We cannot reasonably expect that construing section 664.6 to preclude enforcement thereunder of attorney-signed agreements will cause counsel in any significant number of cases, having been authorized to settle, nevertheless to forbear from doing so when the opportunity arises but the client is not at hand to sign personally.
While the majority’s construction of section 664.6 thus will not significantly reduce the number of attorney-signed agreements, it will relegate enforcement of such agreements to the nonsummary alternative procedures the majority concedes will still be available. Those alternative procedures are undeniably slower and more expensive than section 664.6’s summary procedures. Inevitably, therefore, the majority’s holding will increase the total judicial resources expended on enforcing attorney-signed settlement agreements.2
Second, contrary to the majority’s suggestion, excluding attorney-signed settlement agreements from the enforcement procedures of section 664.6 will not serve to protect litigants’ substantive rights. The majority’s reasoning in this regard is flawed.
In purporting to discuss the relevant “statutory context,” the majority, significantly, does not focus on section 664.6’s actual language or on the term “parties” as used generally in the Code of Civil Procedure. Instead, the majority offers a red herring: “settlement [of a lawsuit] is such a serious step that it requires the client’s knowledge and express consent.” (Maj. opn., ante, at p. 583, citing 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 194, pp. 221-222.) But this case is not about whether an attorney must have client authority to settle. That an attorney must be specifically authorized to settle a claim (Blanton v. Womancare Inc. (1985) 38 Cal.3d 396 [212 Cal.Rptr. 151, 696 P.2d 645]) is undisputed. This case is only about what procedures will be available to enforce settlements that clients have in fact authorized.
Noting that the settlement of the lawsuit, as a decision to end the litigation, “implicates a substantial right of the litigants themselves,” the majority concludes that “in providing for an enforcement mechanism for settlement by ‘parties,’ the Legislature intended the term to literally mean the litigants personally.” (Maj. opn., ante, at p. 584.) The conclusion, however, does not follow from the stated premise. The unstated assumption is that a narrow construction of “parties” is more protective of litigants’ substantive rights than the broader construction I favor. Such an assumption is not warranted.
[589]No one disputes that “a settlement agreement signed only by the attorney is generally open to the claim it was unauthorized.” (Diaz v. May, supra, 15 Cal.App.4th at p. 1274.) Contrary to the majority’s implied suggestion, however, construing “parties” in section 664.6 to embrace only the individual litigants will not indirectly forestall authorization disputes by diminishing the incidence of attorney-signed settlement agreements generally. As previously discussed, in view of the availability of alternative enforcement procedures and the realities of litigation practice, narrowly construing the statute will not significantly deter attorneys from concluding attorney-signed agreements.
On the other hand, as the majority fails to acknowledge, the question of an attorney’s authorization is within the scope of a section 664.6 hearing. When “ ‘acting upon a section 664.6 motion, the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case.’ ” (Diaz v. May, supra, 15 Cal.App.4th at p. 1275, quoting Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994 [203 Cal.Rptr. 356].) “ ‘Even where there are contentions of disputed facts ... the Legislature has now approved the filing of a motion under section 664.6 . . . .’” (Ibid.) Should authorization issues arise, “ ‘trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone.’” (Ibid.’, see also In re Marriage of Assemi (1994) 7 Cal.4th 896, 905 [30 Cal.Rptr.2d 265, 872 P.2d 1190].) Because section 664.6 proceedings in fact embrace authorization issues, we need not construe that statute as requiring litigants’ personal signatures in order to assure that only authorized agreements are enforced thereunder.
That counsel’s oral stipulation suffices in a section 664.6 enforcement proceeding was impliedly acknowledged by this court in In re Marriage of Assemi, supra, 1 Cal.4th 896. There we noted that “a stipulated settlement agreement presented orally by the party litigants or their counsel to a judge, in the course of a settlement conference supervised by that judge, satisfies the ‘before the court’ requirement of section 664.6. . . .” (Id. at p. 906, citing Casa de Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182 [213 Cal.Rptr. 790] and Richardson v. Richardson (1986) 180 Cal.App.3d 91 [225 Cal.Rptr. 370], italics added.) The majority asserts Assemi “must be read in the context of requiring direct party-litigant participation in the settlement.” (Maj. opn., ante, at p. 586, fn. 3].) Perhaps so. Nevertheless, in citing Richardson, supra, with approval in Assemi, we impliedly recognized that, for purposes of section 664.6, sufficient “party-litigant participation” may be assured even when litigants act through their attorneys. In Richardson, the Court of Appeal upheld enforcement under section 664.6 of a settlement agreement between husband and wife presented [590]by counsel orally to the judge during a mandatory settlement conference and based solely on what “counsel understood” to have been offered. (See Richardson v. Richardson, supra, 180 Cal.App.3d at p. 94, italics added.)
On balance, then, the majority’s construction of “parties” in section 664.6 will not serve, relative to a broader construction, to heighten the protection of litigants’ substantive rights against compromise through unauthorized settlement agreements.
Third, because it will not diminish the number of attorney-signed settlement agreements, the majority’s construction of “parties” will generate none of the policy advantages the majority claims. In particular, the majority’s narrow construction will not, as claimed, “tend[] to ensure that the settlement is the result of [the litigants’] mature and deliberate assent” (maj. opn., ante, at p. 585), because attorneys, as previously stated, will continue to conclude settlement on their own signatures, where necessary. Neither will it (relative to a broader construction) “protects the parties against hasty and improvident settlement agreements” or “minimize[] the possibility of conflicting interpretations of the settlement” (ibid., citing In re Marriage of Assemi, supra, 1 Cal.4th at pp. 904-905; City of Fresno v. Maroot, supra, 189 Cal.App.3d at p. 762; Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.App.3d 1168, 1174 [222 Cal.Rptr. 658]), because attorneys authorized to settle will not forgo the opportunity to settle, though the client is not at hand, on the chance another opportunity will arise when the client is near.
Fourth, construing “parties” to encompass litigants acting through their attorneys of record, as I favor, would be consistent with the Legislature’s intent in enacting and amending section 664.6. As the majority recognizes, “[t]he word ‘parties’ is reasonably susceptible to more than one interpretation.” (Maj. opn., ante, at p. 582, citing Diaz v. May, supra, 15 Cal.App.4th at p. 1273; Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230, 233-234 [221 Cal.Rptr. 412].) To resolve the ambiguity, we look to indicators of legislative intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)
In section 664.6, the majority argues, “the Legislature intended the term to literally mean the litigants personally.” (Maj. opn., ante, at p. 584.) Nothing, however, in the legislative history of section 664.6 supports such a conclusion, nor does the majority claim otherwise. Instead, the majority purports to examine “the statutory context in which [“parties”] is used.” (Maj. opn., ante, at p. 583.) Yet section 664.6’s statutory context actually supports the broader construction of “parties” I favor, not the majority’s construction.
[591]The general signature requirement for court papers in California is that “[e]very pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name . . . .” (§ 128.7, subd. (a).) For the purpose of this general requirement, only “if the party is not represented by an attorney” must the paper be signed by the party, personally. (Ibid.)
The majority acknowledges “the term ‘party,’ as used in a number of our civil procedure statutes, is commonly understood to mean not only the actual litigant, but also the litigant’s attorney of record.” (Maj. opn., ante, at p. 583, citing §§ 437c [“[a]ny party may move for summary judgment”], 438, subd. (b)(1) [“[a] party may move for judgment on the pleadings”], 2017, subd. (a) [“any party may obtain discovery”].) In fact, “ ‘[c]ountless other examples of use of the terms “party” or “parties” appear in our statutes, and it is understood universally that the terms are intended to include the party litigant personally or through his attorney of record.’ ” (Diaz v. May, supra, 15 Cal.App.4th at p. 1272, quoting Haldeman v. Boise Cascade, supra, 176 Cal.App.3d at pp. 233-234.) We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. (People v. Belleci (1979) 24 Cal.3d 879, 884 [157 Cal.Rptr. 503, 598 P.2d 473].)
The majority cannot point to a single affirmative indication our Legislature intended the term “parties” in section 664.6 to have a different meaning than it has generally in the Code of Civil Procedure. Plainly, “[i]n enacting section 664.6, had the Legislature intended ‘parties’ to have a meaning other than this commonly understood meaning, it could and would have provided so in the statute.” (Haldeman v. Boise Cascade, supra, 176 Cal.App.3d at p. 234, citing People v. Rodriguez (1984) 160 Cal.App.3d 207, 213 [206 Cal.Rptr. 563].)
The majority purports to draw upon “the circumstances preceding and surrounding the enactment of section 664.6.” (Maj. opn., ante, at p. 584.) The only “circumstance” the majority cites, however, is the existence in 1981 of “conflicting views concerning the proper procedures to enforce settlement agreements in pending litigation.” (Ibid.) As the majority correctly notes, the Legislature, in section 664.6, addressed the conflict by “creating] a summary, expedited procedure” for enforcement of settlement agreements. (Maj. opn., ante, at p. 585.) That in so doing the Legislature meant to preclude enforcement under section 664.6 of authorized attorney-signed settlement agreements does not, however, follow.
The Legislature in enacting section 664.6 apparently envisioned an “expedient and cost effective” alternative to statutory enforcement procedures. [592](City of Fresno v. Maroot, supra, 189 Cal.App.3d at p. 762.) Had the Legislature intended to achieve its efficiency objective by reducing the incidence of authorization disputes, it presumably could have acted to restrict attorneys’ established practice of signing settlement agreements. Section 664.6, however, neither expressly forbids, nor can, even if narrowly construed, curtail that practice. As noted, moreover, section 664.6 proceedings—as presently constituted—must address authorization concerns.
Apparently, then, the Legislature, in enacting section 664.6, intended to achieve efficiency in the enforcement of settlement agreements not by curtailing authorization disputes, but, rather, through the institution of summary procedures. The efficiency benefits of summary procedures are maximized, of course, when such procedures are available in the widest possible class of cases. A construction of “parties” that permits summary enforcement under section 664.6 of authorized attorney-signed settlement agreements thus accords more with discernible legislative intent than does the majority’s construction, restricting the statute to cases involving only litigant-signed agreements.3
Fifth, construing “parties” to encompass litigants acting through their attorneys would be consistent with the language of section 664.6 itself. Section 664.6 commences with the phrase: “If parties to pending litigation stipulate . . . .” (Italics added.) Because a stipulation is “an agreement between counsel respecting business before the court” (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142 [199 P.2d 952], italics added), the Legislature’s use of the legal term “stipulation” in section 664.6 indicates the Legislature intended “parties” to encompass counsel when acting for the party litigants. (See Woods v. Young (1991) 53 Cal.3d 315, 323 [279 Cal.Rptr. 613, 807 P.2d 455] [statutory words are to be construed in context]; California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844 [157 Cal.Rptr. 676, 598 P.2d 836] [same].)
Sixth, construing “parties” to encompass litigants acting through their attorneys would accord with important public policy considerations. California has a strong policy encouraging settlements. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270 [276 Cal.Rptr. 321, 801 P.2d [593107]2]; T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204 Cal.Rptr. 143, 682 P.2d 338]; McClure v. McClure (1893) 100 Cal. 339, 343 [34 P. 822].) Settlements are common and are negotiated primarily between counsel. If counsel cannot rely among themselves on their own signatures, the process is unduly encumbered and the potential for gamesmanship increased. As real party in interest Golant points out, public policy is promoted by laws and procedures that make the negotiation of binding settlements expedient, efficient and certain.
The majority’s conclusion that “parties” in section 664.6 does not encompass the litigants acting through their attorneys will in practice militate against the policy favoring settlements, because the alternative available enforcement procedures are slower and more expensive. Amending pleadings to assert the settlement as an additional cause of action or as a defense reopens discovery and adds further complications and time to the trial of the action. Material factual disputes often will exist or can be artfully pled in order to defeat summary adjudication. The determination of the issue must then await trial of the entire cause, thus defeating the efficiency purposes underlying the policy favoring settlement.
On the other hand, construing “parties” in section 664.6 to encompass the litigants acting through their attorneys of record would promote the policy favoring settlement, because it would permit the enforcement of attorney-signed settlement agreements under section 664.6’s summary procedures. I agree with real party in interest no satisfactory rationale can be advanced for carving out attorney-signed settlement agreements as a special case to which the statute does not apply.
For the foregoing reasons, I would conclude “parties,” as used in section 664.6, includes the litigants acting through their duly authorized attorneys of record, as well as the litigants personally.
Code of Civil Procedure section 664.6, at the time relevant here, provided 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 term of the settlement.” (Italics added.) All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Nor can the majority claim any efficiency advantage with respect to litigant-úgntd settlement agreements. Significantly, the majority does not argue narrowly construing “parties” will make actual section 664.6 proceedings more efficient. Obviously, any litigant-signed settlement agreement will be summarily enforceable under section 664.6 whether “parties” in that statute is construed broadly or narrowly.
It is also significant that when the Legislature amended section 664.6 in 1994, it made no changes to affect the meaning of “parties,” although it was presumably aware that the Court of Appeal had construed “parties” in Diaz v. May, supra, 15 Cal.App.4th 1268, to include litigants acting through their counsel. Diaz was the most recent and extensively reasoned opinion on point at the time of the amendments. When the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction. (Harris v. Capitol Growth Investors (1991) 52 Cal.3d 1142, 1156 [278 Cal.Rptr. 614, 805 P.2d 873].)