In Re Marriage of Assemi , 7 Cal. 4th 896 ( 1994 )

Opinion

GEORGE, J.

Code of Civil Procedure section 664.6¹ provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally on the record 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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”² The issue for our determination is whether, under the circumstances of this marital dissolution proceeding, the oral stipulation for settlement was made “before the court” within the meaning of section 664.6.

As we shall explain, the record in this case establishes that an oral stipulation was made before a person who, pursuant to the stipulation of the parties to pending litigation, was empowered to adjudicate and render a determination of the issues in controversy submitted to him, and that the stipulation was presented to him in the context of his role as a final arbiter who was presiding over the proceeding in which such determination would be made. Under these circumstances, we conclude that the oral stipulation was made “before the court” and therefore was enforceable under section 664.6.

Accordingly, we conclude the trial court properly entered judgment pursuant to section 664.6, enforcing the oral stipulation for settlement between Farid Assemi (husband) and Shirin Assemi (wife). For this reason, the judgment of the Court of Appeal, overturning the trial court judgment on the ground the stipulation was not made “before the court” within the meaning of section 664.6, must be reversed.

I

On June 2, 1989, husband filed this proceeding seeking dissolution of his nine-year marriage to wife in the Fresno County Superior Court. Following wife’s filing of a response, the matter was designated “at issue” and scheduled for a settlement conference. At the settlement conference, the parties appeared in person, with their respective counsel, before Judge Harry Papadakis of the Fresno County Superior Court.

Following settlement discussions and pursuant to the parties’ oral stipulation, made before Judge Papadakis, the court (1) bifurcated the issue of the termination of the parties’ marital status from all other issues, and entered a judgment of dissolution of the marriage, and (2) ordered trial of the remaining issues in controversy, involving primarily the identification and division of community property and the questions of spousal and child support, “referred to binding arbitration,” with one of three designated retired judges to be appointed as arbitrator. The stipulation and order was reduced to writing (hereafter stipulation and order), and was signed by the parties, their counsel, and the settlement conference judge.³ In brief, the stipulation and order provided for the appointment of a retired judge to act as an arbitrator, with the “arbitration” proceedings to be transcribed by a reporter and governed by the rules of evidence and court procedures applicable to superior court trials, and the decision of the arbitrator to be appealable by either party as would be any other final judgment of the superior court.

The arbitration proceedings were scheduled for October 1, 1990, with retired Judge Leonard Meyers of the Fresno County Superior Court acting as the appointed arbitrator agreed upon by the parties. On that date, at Judge Meyers’s law offices, shortly before the proceedings were to commence, the parties, with their respective counsel and accountants present, resumed settlement negotiations. Judge Meyers agreed to delay commencement of the formal proceedings in order to allow the parties a final opportunity to reach an accord with respect to the remaining issues in controversy.

That same day, in the latter part of the afternoon, the parties and counsel advised Judge Meyers that the settlement negotiations had been successful, and sought to state on the record the terms of the settlement, to be transcribed by the certified reporter. At the outset of the transcribed proceedings, Judge Meyers stated that he was “informed that the parties have arrived at a stipulation to dispose of all of the issues that were to be arbitrated.” After the parties’ respective attorneys recited the terms of the settlement, Judge Meyers inquired of counsel whether they “agree[dj” with the stipulation, and counsel for both parties replied affirmatively. When Judge Meyers then inquired of the parties individually whether they understood and agreed to the terms as recited on the record, both husband and wife replied affirmatively. Following further discussion relating to consummation of the settlement, Judge Meyers stated: “Very well. And as the arbitrator, I accept the stipulation, I’m satisfied the parties understand it, accept the stipulation.”

Four months thereafter, on February 5, 1991, husband’s counsel filed a motion for entry of judgment, pursuant to section 664.6, to enforce the parties’ “oral stipulation,” also requesting an award of attorney fees and costs as sanctions pursuant to Civil Code former section 4370.6. In support of the motion, husband filed his own declaration and declarations of his counsel (Stephen Kalemkarian and Kalemkarian’s associate), as well as a transcript of the October 1, 1990, proceedings setting forth the terms of the settlement agreement to which the parties had stipulated.

In his declaration, Kalemkarian related the following events that had led to the motion for enforcement of the stipulated settlement. On October 5, 1990, Kalemkarian delivered to the law offices of wife’s counsel, Norman Fletcher, a proposed draft of a written settlement agreement incorporating the terms to which the parties previously had stipulated orally. On November 1, 1990, Kalemkarian received a letter from Fletcher regarding the proposed draft, stating that “[t]he stipulation and order are acceptable with the following exceptions. . . ,” and listing 14 exceptions, consisting of corrections of typographical errors, clarification of words or phrases, and proposed terms outside the scope of the oral stipulation, relating to child visitation and the purchase of life insurance.

On November 12, 1990, Kalemkarian delivered a letter of that same date to Fletcher’s law offices, together with a revised written settlement agreement incorporating certain of the modifications proposed by Fletcher which, according to Kalemkarian’s letter, were consistent with the parties’ agreement as reflected in the transcript of the October 1, 1990, proceedings.

By letter dated December 7,1990, Fletcher notified Kalemkarian that wife was unwilling to sign the settlement agreement because of her belief that husband had understated by approximately $60,000 the balances of his various bank accounts as of the date of the parties’ separation. Fletcher requested that husband furnish copies of the bank account statements for the period in question.

In response, Kalemkarian’s associate telephoned Fletcher, requesting the number and location of the bank accounts in question, and other information that would enable Kalemkarian to identify those accounts. Fletcher refused to provide that information, insisting instead that (according to his client) husband was fully aware of the accounts, the balances of which allegedly had been understated. Fletcher further represented that he had no objections to the revised written settlement agreement, and that the alleged understatement of bank account balances was the only issue preventing his client from executing the document.

Ultimately, Fletcher advised Kalemkarian that his client was unwilling to execute the agreement because of her firm belief that petitioner had concealed money from her.

In support of his request for sanctions against respondent and her counsel pursuant to Civil Code former section 4370.6, husband presented billings for attorney fees and costs incurred in attempts to enforce the stipulation.

When husband moved for entry of judgment, wife asserted in opposition, among other things, that the oral stipulation was not enforceable under section 664.6 because it had not been presented “before the court” in a judicially supervised proceeding. Wife also submitted her declaration stating that the oral stipulation should not be enforced because it was “grossly unfair” to her.

Following a hearing, the trial court granted husband’s motion and ordered entry of judgment pursuant to the terms of the parties’ oral stipulation. In so ruling, the trial court observed that “[i]t appears clear to this court that the proceeding which took place on October 1st, 1990, was a judicially supervised proceeding.” The trial court also awarded sanctions in the amount of $5,000 to be paid by wife to husband.

On wife’s appeal, the Court of Appeal reversed. The appellate court concluded the oral stipulation for settlement approved by Judge Meyers had not been made “before the court” in the context of section 664.6, because Judge Meyers had not been acting as a judge (i.e., an officer appointed to preside and to administer the law in a court of justice), but solely as an “arbitrator” who was supervising settlement negotiations in the course of an arbitration proceeding.⁴ Holding the oral stipulation was not enforceable under section 664.6, the Court of Appeal set aside the judgment entered by the trial court pursuant to the oral stipulation, and the award of sanctions.

II

Prior to the enactment of section 664.6 (Stats. 1981, ch. 904, 2, p. 3437), California appellate decisions were in conflict as to the appropriate procedure for enforcement of an agreement to settle pending litigation. One line of authority suggested or held the proper procedures for enforcement of settlement agreements were limited to a motion under section 437c for summary judgment (which was to be denied if there was a disputed issue of material fact; see, e.g., Duran v. Duran (1983) 150 Cal.App.3d 176 [197 Cal.Rptr. 497]); a separate suit in equity to enforce the agreement; or (if the defendant was attempting to enforce settlement) an amendment to the pleadings, asserting the settlement as an affirmative defense. (See Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 993 [203 Cal.Rptr. 356].)

Another line of authority, however, recognized the inherent power of a court to enforce, by way of a nonstatutory motion for entry of judgment enforcing the settlement agreement, a settlement agreement presented by the parties in the course of, or as a result of, judicially supervised settlement proceedings. (See, e.g., Gopal v. Yoshikawa (1983) 147 Cal.App.3d 128, 132-133 [195 Cal.Rptr. 36]; see also Corkland v. Boscoe, supra, 156 Cal.App.3d at p. 993-994.) In Gopal, the court reasoned: “[W]hen the fact of settlement and the terms thereof are not subject to reasonable dispute, to require a party to bring a separate suit in equity to enforce the agreement, or raise it by way of affirmative defense during a trial, would defeat the very purpose tiie settlement conference is designed to achieve avoiding the time and expense of trial. . . . When parties to litigation appear before the court and advise it that the controversy has been settled and the terms thereof, courts must have the ability to enforce those agreements. This is necessary not only to control the proceedings before the court, but also to protect the interests of parties who may have materially altered their positions in reliance on the settlement.” (147 Cal.App.3d at p. 132.)

With the enactment of section 664.6, the Legislature not only endorsed the nonstatutory motion procedure approved in the Gopal decision, but expanded it beyond the context of judicially supervised settlement conferences. Under the statute, as amended in 1993,⁵ the trial court may enter judgment pursuant to a stipulated settlement if the stipulation is made in one of two ways: either in a writing signed by the parties outside the presence of the court, or orally on the record before the court. These requirements minimize the possibility of conflicting interpretations of the stipulation or its effect. (See City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 761-762 [234 Cal.Rptr. 353]; Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.App.3d 1168, 1174 [222 Cal.Rptr. 658].) A section 664.6 motion is appropriate, however, even when issues relating to the binding nature or terms of the settlement are in dispute, because, in ruling upon the motion, the trial court is empowered to resolve these disputed issues and ultimately determine whether the parties reached a binding mutual accord as to the material terms. (See Estate of Dipinto (1986) 188 Cal.App.3d 625, 629 [231 Cal.Rptr. 612]; Casa de Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1189 [213 Cal.Rptr. 790].)

The requirement that the parties stipulate orally to a settlement agreement “before the court” has been held to refer to a stipulation presented in a “judicially supervised” proceeding (City of Fresno v. Maroot, supra, 189 Cal.App.3d 755, 762, italics added; Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97 [225 Cal.Rptr. 370], italics added; Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d 1168, 1173, italics added; see Cal. Civil Prac.—Proc. (Bancroft-Whitney 1992), vol. 3, ch. 20, Judgment Pursuant to Stipulation, § 20:11, p. 12), a setting that helps ensure the parties’ understanding of the specific terms of the settlement, and their full appreciation of the finality and binding nature of the stipulation.

It is undisputed that a stipulated settlement 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. (See, e.g., Casa de Valley View Owner’s Assn. v. Stevenson, supra, 167 Cal.App.3d 1182 [during a voluntary settlement conference supervised by a judge, the party litigants orally stipulated on the record to a settlement]; Richardson v. Richardson, supra, 180 Cal.App.3d 91 [during a mandatory settlement conference conducted in judge’s chambers, proposed settlement presented to trial court].)

In contrast, an oral stipulation to settle made by the party litigants at a deposition, but not in the presence of a judge or any other person serving in an officially recognized judicial capacity, does not satisfy the “before the court” requirement, even if the stipulation is placed on the record before a certified reporter. (See City of Fresno v. Maroot, supra, 189 Cal.App.3d at pp. 761-762; Datatronic Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d at pp. 1174-1175.)

Ill

As we shall explain, we conclude that under the circumstances of the present case, the oral stipulation presented by the parties to Judge Meyers on the record⁶ and approved by him on October 1, 1990, was made “before the court” under section 664.6.

At the outset, it is necessary to determine the capacity in which Judge Meyers was acting pursuant to the original stipulation and order. In proceedings under the former Family Law Act (Civ. Code, former § 4000 et seq.), and the current statutory scheme (Fam. Code, § 2000 et seq.), as an expeditious means of resolving disputed issues, trial courts frequently appoint a subordinate court officer to whom is delegated, pursuant to the stipulation of the parties, the authority to render binding factual findings or judicial determinations. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 8, fn. 5 [17 Cal.Rptr.2d 480] [“The best and least expensive method of resolving disputes such as (the family law dispute in Olson), is for the parties to stipulate not only to the appointment of a special master, but also that the special master be empowered to determine the issues . . . .”].) Depending upon the stipulation of the parties, such an officer may serve in the capacity of a temporary judge pursuant to article VI, section 21, of the California Constitution; an arbitrator under the private contractual arbitration provisions of sections 1280-1288.8;⁷ or a referee pursuant to section 638. (See In re Marriage of Olson, supra, 14 Cal.App.4th at p. 8, fn. 5; 2 Witkin, Cal. Procedure (3d ed. 1985) Courts, § 278, at p. 300.)

In the present proceeding, the stipulation and order is ambiguous as to the role to be served by Judge Meyers—specifically as to whether the parties intended that he act as a privately compensated temporary judge or as an arbitrator. The stipulation and order refers to the appointment of a retired judge to be the “trial judge,” but that document also provides for the matter to be set for “binding arbitration” with the retired judge to act as the “arbitrator.”

The position of temporary judge is authorized expressly by article VI, section 21, of the California Constitution, which provides: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” (See 1 Cal. Civil Procedure Before Trial (Cont.Ed.Bar 1993) § 5.46 [“The California Constitution provides civil litigants the opportunity to resolve their disputes in a private trial presided over by a temporary judge.”].) One legal commentator explains: “California has created a full-fledged system of private judges, colloquially ‘rent-a-judge,’ which permits the parties to agree to a temporary judge .... Such an agreement allows the parties to bypass urban courts’ crowded calendars, obtain a trial on a certain, prearranged date convenient to parties and witnesses, and avoid the cost of trailing on a master calendar while waiting for a courtroom.” (Christian, Private Judging, The Alternative Dispute Resolution Practice Guide (1993) § 40.3, p. 3.)

To invoke the constitutional authority empowering a temporary judge to act in this capacity, the parties must submit, for approval of the presiding or supervising judge of the court, a written stipulation designating the proposed temporary judge, and the temporary judge (unless a court commissioner) must take and file an oath of office. (Cal. Rules of Court, rule 244.) Once a temporary judge has taken an oath of office, he or she has the same authority as a regular judge (see generally, Estate of Kent (1936) 6 Cal.2d 154 [57 P.2d 901]), basically is bound by the same rules of evidence and procedures as those applicable in superior court trials, and is empowered to render an appealable judgment in the same manner as a regular judge. (See 2 Witkin, Cal. Procedure, op. cit. supra, Courts, § 284 at p. 307; Christensen, Private Justice: California General Reference Procedure, 1982 Am. B. Found. Res. J. 79, 89.)

The role of an arbitrator acting pursuant to a private written agreement to arbitrate, in proceedings governed by the private arbitration statutory scheme (§ 1280 et seq.), differs from that of a temporary judge in several respects. The arbitrator need not be sworn or take an oath of office in order to serve in that capacity. The arbitration proceedings are not governed by the rules of evidence or judicial procedures applicable to superior court trials, unless the arbitration agreement provides otherwise. (§ 1282.2, subd. (d).) The arbitrator issues an award, rather than a final appealable judgment, and a party to the proceedings must petition the court to confirm, correct, or vacate that award (§ 1285), with limited grounds for correction (§ 1286.6) or vacation (§ 1286.2) being available; additionally, the arbitrator’s decision generally is not reviewable for errors of fact or law (see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6, 11 [10 Cal.Rptr.2d 183, 832 P.2d 899]).

In the present proceedings, the role served by Judge Meyers pursuant to the stipulation and order corresponded more closely to the functions and characteristics of a temporary judge than to those of an arbitrator. Hie stipulation and order contemplated that the proceedings would be governed by the rules and procedures applicable in superior court trials, and that Judge Meyers would render a decision having the same finality and subject to the usual appellate review accorded a judgment rendered by a superior court.

The record fails to reflect, however, that Judge Meyers took an oath of office empowering him to act as a temporary judge, and this circumstance precludes his having served in that capacity. Indeed, the parties do not contend he was acting as a temporary judge.

Instead, as reflected by the stipulation and order, the parties contemplated that Judge Meyers would serve in some hybrid capacity not clearly consistent with either the position of a temporary judge authorized by the California Constitution or that of an arbitrator under the private arbitration statutes.

In determining whether the oral stipulation was presented “before the court” within the meaning of section 664.6, however, we need not attempt to label or define precisely the position occupied by Judge Meyers. We conclude that, in view of the role to be served by Judge Meyers under the stipulation and order, as well as the circumstances under which the stipulated settlement was presented to him, the “before the court” requirement was met in the present case. Judge Meyers was empowered to exercise the adjudicatory functions of an arbitrator (if not a temporary judge) with the authority to render a binding determination of the controverted issues submitted to him by the parties, whether that determination was in the nature of a final judgment, subject to ordinary appellate review, or an arbitrator’s award subject to the procedures of the private arbitration statutory scheme. As such, his role was closely analogous to that of a judge, in a judicial proceeding, empowered to exercise what are essentially judicial functions. “Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally . . . .” (Burchell v. Marsh (1855) 58 U.S. (17 How.) 344, 349 [15 L.Ed. 96, 99].) Arbitrators have been extended the protection of judicial immunity, because they perform “ ‘the function of resolving disputes between parties, or of authoritatively adjudicating private rights.’ ” (Antoine v. Byers & Anderson, Inc. (1993) 508 U.S. _ [124 L.Ed.2d 391, 398, fn. 8, 113 S.Ct. 2167, 2170]; see also § 1280.1 [an arbitrator has the immunity, from civil liability, of a judicial officer].)

For these reasons, we conclude Judge Meyers was empowered to act in a quasi-judicial capacity as arbiter of the controverted issues, and was acting in that capacity in approving the stipulated settlement presented to him.

The record also reflects the parties and their respective counsel presented the stipulated settlement to Judge Meyers, for his approval, in recognition of his authority to effect a binding resolution of the issues in controversy. At the outset, Judge Meyers stated he was informed the parties had reached a stipulation to dispose of all issues to be arbitrated, and, before approving the stipulation, Judge Meyers, in the presence of a certified reporter, questioned the parties whether they understood and agreed to the terms as explicitly defined and recited on the record. They replied affirmatively.

Under these circumstances, the parties’ oral stipulation must be deemed to have occurred in a “judicially supervised” proceeding. (See City of Fresno v. Maroot, supra, 189 Cal.App.3d 757, 762; Richardson v. Richardson, supra, 180 Cal.App.3d 91, 97; Datatronics Systems Corp. v. Speron, Inc., supra, 176 Cal.App.3d 1168, 1173; 3 Cal. Civil Practice Proc., op. cit. supra, Judgment Pursuant to Stipulation, § 20.11, p. 12.) As with a stipulation presented orally before a regular judge in a courthouse setting, the parties in this proceeding, at Judge Meyers’s law offices, were aware of the binding adjudicatory powers conferred upon him by the previous stipulation approved by the superior court, and must have appreciated the purpose and objective of the settlement negotiations and the final, binding nature of the oral stipulation.

For these reasons, we conclude the stipulation orally presented to Judge Meyers, and approved by him, was made “before the court” within the meaning of section 664.6.

The strong policy favoring settlement of litigation supports our conclusion. Frequently, once present and prepared to proceed with trial proceedings before a temporary judge, or arbitration proceedings before an arbitrator, the litigants will embark upon settlement negotiations before or even while engaging in the formal proceedings. Indeed, “proposals for expanded use of [alternative dispute resolution] in the courts focus on early settlement activities . . . .” (State Bar of Cal., Off. of Research, Guide to Court-Related ADR (1993) p. 1-4.) In the event stipulated settlements ultimately reached in negotiations supervised by a temporary judge or an arbitrator were unenforceable under section 664.6, parties and their counsel would be discouraged from attempting to reach a final binding accord in these settings. It is doubtful whether, immediately following successful settlement negotiations supervised by a temporary judge or an arbitrator, the parties would have immediate access to a courtroom with a trial judge available and inclined to permit the parties to recite on the record the terms of a lengthy settlement agreement. During the passage of time before an oral stipulation is reduced to written form, the opportunity would arise for the parties to reconsider and renege on the settlement. Thus, the very objective of the negotiations— avoidance of the time and expense of more formal proceedings—and the purpose of section 664.6’s expeditious procedure for enforcing settlement agreements, would be defeated if such settlements could not be enforced under section 664.6. (See Gopal v. Yoshikawa, supra, 147 Cal.App.3d at p. 132.)

Moreover, such a result also would impede the legislative policy of encouraging “greater use of alternative dispute resolution techniques whenever the administration of justice will be improved.” (Bus. & Prof. Code, § 465, subd. (d).)

Finally, in light of our confirmation in Moncharsh v. Heily & Blase, supra, 3 Cal.4th 1, 8-13, of the broad and conclusive powers of a private arbitrator, generally precluding judicial review of substantive error of law or fact, an anomalous result would occur were we to affirm the holding of the Court of Appeal. A transcript of an arbitration hearing demonstrating gross errors of law or fact would afford no relief to an aggrieved party seeking to overturn the award on substantive grounds, but a transcription of a stipulation to settle, reflecting accurately the terms of the mutual accord reached by the parties, and confirmed on the record before the arbitrator, would be unenforceable, because the stipulation was not recited before a regular judge in a courthouse setting.

IV

Past cases have established that, in ruling upon a section 664.6 motion for entry of judgment enforcing a settlement agreement, and in determining whether the parties entered into a binding settlement of all or part of a case, a trial court should consider whether (1) the material terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties regarding their understanding of those terms, and (3) the parties expressly acknowledged their understanding of and agreement to be bound by those terms. In making the foregoing determination, the trial court may consider declarations of the parties and their counsel, any transcript of the stipulation orally presented and recorded by a certified reporter, and any additional oral testimony. (Casa de Valley View Owner’s Assn. v. Stevenson, supra, 167 Cal.App.3d at p. 1189; Corkland v. Boscoe, supra, 156 Cal.App.3d 989, 994.) The standard governing review of such determinations by a trial court is whether the court’s ruling is supported by substantial evidence. (Estate of Dipinto, supra, 188 Cal.App.3d at p. 629; Casa de Valley View Owner’s Assn. v. Stevenson, supra, 167 Cal.App.3d at p. 1190.)

In the present case, the trial court’s determination that the parties entered into a binding settlement agreement clearly is supported by substantial evidence. As previously noted, the declarations filed in support of the motion and the transcript of the proceedings of October 1, 1990, establish that the parties, represented by counsel, engaged in settlement negotiations over an extended period of time, advised the retired judge of their desire to enter into a settlement disposing of all the matters that were to be arbitrated, explicitly defined and placed on the record the terms of the settlement, and, in response to Judge Meyers’s inquiry, expressly stated they understood and agreed to those terms. Additionally, the documented correspondence between counsel during the several weeks following the October 1, 1990, proceedings discloses that wife’s refusal to execute the written settlement agreement was not based upon a belief that the written agreement did not reflect accurately the terms of the settlement to which she previously had stipulated, but instead rested upon her belated misgivings about having entered into the stipulation.

Accordingly, we conclude the trial court did not err in entering judgment, pursuant to section 664.6, enforcing the stipulated settlement.

V

The judgment of the Court of Appeal is reversed, and the matter is remanded to the Court of Appeal with directions to affirm the judgment of the superior court enforcing the settlement agreement, and to reconsider the issue of the ancillary award of sanctions.

Lucas, C. J., Arabian, J., and Peterson, J.,^* concurred.

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 Prior to its 1993 amendment, section 664.6 provided: “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 1993 amendment to the statute (Stats. 1993, ch. 768, § 1) added, among other provisions, the requirement that a stipulation made orally before the court be placed “on the record.” Although, in the present case, the statute in effect prior to the 1993 amendment governed the section 664.6 motion to enforce the oral stipulation at issue, as we shall explain, we would reach the same conclusion that we reach in the present case regarding the enforceability of the oral stipulation if it were governed by the statute in its current form.

3 The stipulation and order provided in pertinent part: “Appointment of Retired Judge to Be Trial Judge:

“[This] matter shall be, and hereby is, ordered to be set for binding arbitration, under the following conditions:

“a. That one of the following retired judges shall be appointed as Arbitrator in the above-entitled matter: The Hon. Charles F. Hamlin, The Hon. Blame Pettitt, or, The Hon. Leonard M[e]yers.

“b. That the Arbitration hearing of this matter, before said retired judge, shall be set for a date mutually agreeable between counsel, the parties, and the judge to be selected, and shall be set between September 24, 1990, and October 5, 1990. That Norman L. Fletcher, counsel for respondent, shall select which of said three judges shall preside over the Arbitration hearing, and he shall make arrangements therefor, and advise counsel for petitioner of said arrangements, forthwith.

“c. That there shall be a Court reporter present at all of the proceedings to be held in said Arbitration of this matter, with a full and complete record of the proceedings to be made. That all of the California Rules of Evidence and Rules of Court applicable to Trials conducted in the Superior Court shall apply to the Arbitration of this matter.

“d. That the parties right to appeal the decision of the Arbitrator on said hearing shall be reserved to both parties, with all of the Rules for appeals from the Superior Court to be applicable to said Arbitrator’s decision.

“e. That each party shall, and hereby does, have, the right to take one (1) personal deposition of the other party prior to said Arbitration. That both depositions shall be set at a date and time mutually convenient to the parties and their respective counsel, as soon as reasonably possible.”

The stipulation and order concluded with the signing of the document by Judge Papadakis, as follows:

“Done in open court on June 13, 1990, and signed this 11 day of July, 1990.

_[signature]_

Judge of the Superior Court"

4 In concluding Judge Meyers was appointed to act solely as an arbitrator to conduct arbitration proceedings, and that arbitration had only a minimal relationship to the judicial court system, the Court of Appeal found it unnecessary to determine whether the stipulation and order provided for private arbitration under sections 1280-1288.8, or for “judicial arbitration” under sections 1141.10-1141.31.

5 The 1993 amendment to section 664.6 was part of Senate Bill No. 252, which related primarily to “judicial” and private arbitration, including the grounds for disqualification of an arbitrator, and discovery in arbitration proceedings, in addition to enforcement of settlement agreements under section 664.6. (See Legis. Counsel’s Dig., Sen. Bill No. 252, Stats. 1993, ch. 768.) With respect to the amendment of section 664.6, the Legislative Counsel’s Digest explains: “(1) Existing law authorizes the court, upon motion, to enter a judgment in a civil action according to the stipulation of the parties, in writing or orally before the court. [1] This bill would revise that provision to refer to a writing signed by the parties outside the presence of the court or orally on the record before the court, for settlement of the case, and would authorize entry of a stipulated judgment, upon motion, based upon the terms of the settlement The bill would also authorize the court to retain jurisdiction over the parties, at their request, as specified.”

6 Because in the present proceeding the oral stipulation was placed on the record and transcribed by a certified reporter, the 1993 amendment, adding the requirement that a stipulation presented orally be placed “on the record,” does not affect the enforceability of the oral stipulation at issue under the statute in its current form.

7 We refer to private contractual arbitration as distinguished from “judicial arbitration” under sections 1141.10-1141.30. In defining judicial arbitration, one court explained: “ ‘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, and the right to a trial de novo removes the finality of true arbitration. ‘Extrajudicial mediation’ would be closer to correct.” (Dodd v. Ford (1984) 153 Cal.App.3d 426, 432, fn. 7 [200 Cal.Rptr. 256]; see also Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109].)

* Presiding Justice, Court of Appeal, First Appellate District, Division Five, assigned by the Acting Chairperson of the Judicial Council.