Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC312118, Mark V. Mooney, Judge. Reversed.
Greenberg Glusker Fields Claman & Machtinger, Harvey R. Friedman and Rachel J. Wilkes for Plaintiff, Cross-defendant and Appellant.
Jones Day, Brian A. Sun and Frederick D. Friedman for Defendants, Cross-complainants and Respondents.
MOSK, J.
Blix Street Records, Inc. ("Blix Street") appeals from a judgment entered on a purported settlement agreement pursuant to Code of Civil Procedure section 664.6. We reverse because the parties did not, in accordance with the requirements of section 664.6, stipulate to a settlement orally before the court or in a writing, bearing the signatures of all of the settling parties.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We refer to “settlement agreement” without taking a position as to whether it is enforceable.
The following facts are not disputed.
Eva Cassidy was a singer and songwriter who died in 1996. Her parents, respondents Hugh and Barbara Cassidy, inherited rights to Eva’s work. In November of 1997, Hugh and Barbara Cassidy entered into an exclusive licensing agreement for exploitation of Eva Cassidy recordings with William Straw, doing business as Blix Street Records, the predecessor of Blix Street. The agreement was modified in 1999. Straw is the president of Blix Street. Disputes arose about royalty payments and about Hugh and Barbara Cassidy's plan to have a motion picture made about their daughter's life. In March of 2004, Blix Street sued Hugh and Barbara Cassidy; Allen Gelbard; and Eva Cassidy Partners, LLC ("ECP"), in which Gelbard was a partner. Hugh and Barbara Cassidy and their son Daniel (collectively the Cassidys) subsequently cross-complained against Blix Street and Straw.
On March 24, 2006, after jury selection had begun, the Cassidys and Blix Street engaged in a day-long mediation. Hugh and Barbara Cassidy were present with their counsel. Straw was present with his counsel. Daniel Cassidy, who was in Iceland, was not present, but according to counsel for the Cassidys, had informed his counsel, Brian Sun, "that he had my proxy to execute my settlement of the case reached at mediation." Gelbard, who was then in bankruptcy, was not present at the mediation, nor was any representative of ECP. Prior to the mediation, Gelbard and his counsel, Christopher Dieterich, informed Sun that Sun was authorized to settle the case on behalf of Gelbard and ECP, and that Gelbard and ECP would agree to any settlement that did not require them to pay any money. The mediation resulted in a handwritten settlement agreement.
The settlement agreement provides, “Although subject to more formal documentation, including the preparation and filing of a dismissal of the entire action with prejudice, this is a final binding agreement subject to judicial enforcement pursuant to CCP 664.6.” The document was signed by Straw, for himself and for Blix Street; Hugh Cassidy; Barbara Cassidy; and Sun for David Cassidy. Under “approved as to form” the document was signed by Blix Street's counsel and Brian Sun for the Cassidys.
The settlement agreement extends the licensing agreement, and provides, inter alia, for minimum amounts over a period of years, a means to determine the amount of royalties, a business plan, cooperation for the motion picture, and releases. The settlement agreement specifically says that, “The parties hereby release all claims of any type or nature from inception through today, including rights as to Gelbard, Engel [a former attorney for some of the parties] and Eva Cassidy Partners, LLC (Gelbard and ECP to be releasors under the more formal agreement documents) . . .” and that Blix Street's first payment to the Cassidys “shall occur upon delivery to Blix's counsel of a full, executed dismissal of the entire action with prejudice and any order necessary from the U.S. Bankruptcy Court and U.S. Trustee.”
The trial was scheduled to resume on April 3. The parties informed the trial court that the case had settled. On March 26, after consultation with counsel for the Cassidys, counsel for Blix Street sent the trial court an email that states, “the parties reached a settlement at the mediation on Friday, March 24, 2006 and signed a document that can be enforced pursuant to CCP Section 664.6. We need to get a signature from the Eva Cassidy Partnership . . . which should not be that difficult. There are issues relating to the release of claims against Gelbard given his bankruptcy that we need to navigate, but the case has settled. We appreciate all of your help and work in this matter and hope this news means that you can spend more of your vacation enjoying yourself rather than reading lengthy, albeit positively fascinating, briefs and depositions.”
The trial court called the case on April 3. The record reflects only the presence of attorneys. After an unreported chambers conference, the trial judge dismissed the jury, saying that the case had been settled. The trial court had the parties state their positions for the record. Counsel for Blix Street stated the case had settled, and said, “The matter, subject to having the long form agreement being prepared and obtaining the approval of the bankruptcy court with regard to the Gelbard piece and the Eva Cassidy Partners piece, the case is settled, subject to those two provisos, which we expect will be resolved in the next 30 days." Counsel for the Cassidys mentioned that coordination with the bankruptcy court would be necessary and then said, "But the parties have reached a settlement, and we think it's enforceable under the C.C.P. and we have to go get the rest of it done." Dieterich (counsel for Gelbard and ECP) was present at the hearing. He said "Agreed." There was no objection from Blix Street. Blix Street claims, however, that during the April 3 Chamber conference, Brian Sun reported Gelbard said he would not sign the settlement nor release Blix Street from a potential malicious prosecution claim without compensation. The parties themselves did not agree orally before the court as to a settlement.
On April 10, a new attorney for Blix Street and Straw wrote to counsel for the Cassidys, stating he had advised his clients that in his opinion, the settlement agreement was neither binding nor enforceable because there was no agreement on material terms and because Gelbard had not signed it. He added, however, that he had been authorized to negotiate a long-form settlement agreement.
On April 24, another lawyer for Blix Street and Straw wrote to the Cassidys’ lawyer on behalf of Straw and Blix Street, stating the former’s conclusion that the Settlement Agreement was not enforceable because Gelbard had not signed it and because there was no meeting of the minds on many material terms. He asked counsel for the Cassidys to inform the bankruptcy court that there was "nothing to approve."
On April 25, Dieterich advised the Cassidys that "Eva Cassidy Partners LLC and Allen Gelbard individually are all affirming that they are willing to execute the typed version (or the handwritten version if necessary) of the 'Settlement Agreement' . . . ." He also told the Cassidys that he had signed the Settlement Agreement for Gelbard and ECP, and that Gelbard had agreed to sign it.
Blix Street filed an opposition to the Cassidys' motion in the bankruptcy court. At the May 10 hearing in that court, Gelbard personally advised that court that he had signed the settlement agreement and settled the case. The bankruptcy court denied the Cassidys' motion without prejudice, finding, "This is a settlement of this trial in the state court, and you've either got a deal that's going to settle the whole trial or you don't, and I think that I should step aside and allow the state court judge to make a determination . . . Then you should come back here to approve it . . . ." The court said, "You know, again, if everybody to a settlement comes in and says, 'We're thrilled. Here's the settlement agreement,' you'd be amazed how fast I'll sign the order."
In May, the parties filed status conference reports in the trial court. Blix Street wrote that "the parties are still negotiating the material terms of the long form agreement," that "settlement has not yet been consummated," and that the settlement agreement had not settled the case. Blix Street contended there was no settlement agreement because the settlement agreement had not been signed by two indispensable parties, Gelbard and ECP; the bankruptcy court had denied the Cassidys' motion; and there was "numerous material terms" to which the parties had not agreed. Although Gelbard had told the bankruptcy court that he had signed the settlement agreement, Blix Street wrote that Gelbard had not signed, was unwilling to sign, and had threatened litigation. Blix Street asked for a 30 day continuance of the order to show cause to dismiss the action. The Cassidys said the agreement was enforceable because Gelbard and ECP have accepted the terms of the agreement, but wrote that if the continuing negotiations failed, they would seek enforcement of the settlement agreement.
In June, the Cassidys moved the superior court for entry of judgment based on the settlement agreement, under section 664.6. With the motion, they submitted Sun's declaration that at the mediation, he had "full authority from [Daniel Cassidy] to settle the case;" Daniel Cassidy's declaration that he had reviewed a copy of the settlement agreement and that "I approve and agree to the terms of the March 24 Settlement Agreement;" and Gelbard's declaration that he had signed the settlement agreement and told the bankruptcy trustee that he wanted to settle the case on those terms, that he was one of the three managers of ECP, that all three managers had voted to approve the Settlement Agreement, and that Dieterich had signed on their behalf.
Blix Street opposed the motion with a pleading similar to its May status report, and adding as a new ground, the fact that Daniel Cassidy signed through counsel. The court granted the motion and ordered the Cassidys to prepare the judgment. Blix Street's motion for reconsideration was denied.
The Cassidys then proposed a judgment. Blix Street filed objections. The trial court signed a revised version of the judgment the Cassidys originally proposed.
Prior to the revised judgment, additional facts about the bankruptcy proceedings were brought to the trial court's attention. After the motion for entry of judgment was granted, the Cassidys again moved the bankruptcy court for approval of the settlement. Blix Street opposed this motion, informing the bankruptcy court that Blix Street intended to appeal the judgment in the trial court. The bankruptcy court granted the motion "to the extent the State Court makes a final determination that there is a binding settlement agreement."
DISCUSSION
Blix Street contends that the settlement agreement should not have been enforced for a number of reasons. Because we conclude that the settlement agreement could not be enforced under section 664.6 for lack of necessary signatures, we need not discuss those other issues. As to the interpretation and application of section 664.6 on undisputed facts, we exercise de novo review. (Elnekave v. Via Dolce Homeowners Assn. (2006) 142 Cal.App.4th 1193, 1198.)
Section 664.6 states: “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. 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.” There is no contention that the parties stipulated orally before the court. The only issue is as to the sufficiency of the signatures on the writing.
Cases, including one from our Supreme Court, have held that “signed by the parties” means the litigants themselves—not those on their behalf. (See, e.g., Levy v. Superior Court (1995) 10 Cal.4th 578, 584-585; Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1117-1118 (Gauss); Elnekave v. Via Dolce Homeowners Assn., supra, 142 Cal.App.4th 1193; Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299.) As stated in Gauss, “In fact [Levy] construes the term ‘party’ in section 664.6 to mean ‘the specific person or entity by or against whom legal proceedings are brought.’ (Levy v. Superior Court, supra, 10 Cal.4th at p. 583, italics added; see also Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37 [126 Cal.Rptr.2d 400] [agreement belatedly signed by corporate officer did not satisfy Levy’s party-signature requirement]; Burckhard v. Del Monte Corp. (1996) 48 Cal.App.4th 1912, 1914-1915 [Levy rule barred enforcement under § 664.6 of settlements not signed by plaintiffs claiming asbestos-related injury or the corporate defendant].)” (Gauss, supra, 103 Cal.App.4th at p. 1118.)
Whether the signing party be an agent (Gauss), spouse, or attorney (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162-1163), the requirements of section 664.6 are not met if the actual party does not sign the agreement. As one authority has stated, “The term ‘parties’ used in Code of Civil Procedure section 664.6 means the litigants themselves, not their attorneys of record or other agents.” (Weil, Brown, etc., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 12:956, p. 12(II)-104.)
The court in Gauss, supra, 103 Cal.App.4th at page 1119 stated, “The cases following Levy have recognized no exceptions to the rule that litigants themselves must sign a settlement for it to be enforceable under section 664.6. (See, e.g., Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304-306 [87 Cal.Rptr.2d 822] [interpreting Levy to require signature of all parties to a settlement, not just the party against whom enforcement is sought]; Williams v. Saunders, supra, 55 Cal.App.4th at pp. 1162-1163 [Levy precludes enforcement under § 664.6 of settlement signed by spouse].) In Murphy v. Padilla (1996) 42 Cal.App.4th 707, 716 [49 Cal.Rptr.2d 722], the Sixth District Court of Appeal concluded Levy and Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700 [45 Cal.Rptr.2d 740] (concerning motions to enforce oral settlements made before the court) precluded reliance on agency principles as a means of satisfying the requirements of section 664.6. Indeed, Levy itself holds that the signature of a duly authorized attorney, who acts as an agent of the client (see Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109]), does not suffice to permit enforcement of a settlement under section 664.6. (See Levy v. Superior Court, supra, 10 Cal.4th at pp. 586, 592 (dis. opn. of Werdegar, J.).) We concur in the Murphy court’s assessment that, in determining the Legislature intended strict safeguards to prevent section 664.6 from becoming a tool of abuse, the Levy decision ‘appear[s] to reject traditional agency analysis . . . .’ (Murphy v. Padilla, supra, at p. 716.)”
In the instant case, Gelbart, ECP and Daniel Cassidy, all parties, did not originally sign the settlement agreement and at no time did they orally affirm the agreement before the court. Respondents concede that “Mr. Gelbard initially had qualms about the Settlement Agreement.” That is the very reason for requiring signatures. Although Gelbard told the bankruptcy court that he signed the agreement, the record does not contain the agreement with his signature. In the agreement submitted to the trial court, there is not even a place for a signature of Gelbard or ECP. Daniel Cassidy’s attorney, Brian Sun, signed the agreement on behalf of Daniel Cassidy. That Brian Sun had a purported “proxy” makes him no more able to sign on behalf Daniel Cassidy for purposes of section 664.6 than any other agent or attorney. In California “proxy” is a term used in connection with authorization to vote an interest in an entity. (Corp. Code, §§ 178, 5069, 15611, subd. (aa), 15901.02, 17001, subdivision (ai); see Black’s Law Dictionary (8th ed. 2004) 1263 [“One who is authorized to act as a substitute for another; especially in corporate law, a person who is authorized to vote another’s stock shares”].) A “proxy” is the equivalent of an agent for a limited purpose; signature of the person having the proxy does not satisfy the requirements of section 664.6.
Daniel Cassidy’s declaration filed in support of the motion to enforce the settlement agreement contains the statement, “I approve and agree to the terms of the March 24 Settlement Agreement.” Gelbard also stated in a declaration that he agreed to the terms and that he has signed a copy of the agreement. He said he expected bankruptcy court approval. Under existing authority, these declarations do not satisfy the signature requirements of the statute. The authorities suggest that for purposes of section 664.6, the settlement agreement itself must be signed by the parties specified in that agreement and that after-the-fact affirmations are not sufficient.
Section 664.6 provides that “a writing signed by the parties” may be enforced. Gauss, supra, 103 Cal.App.4th at p. 1118 notes that the settlement was not enforceable because “[n]one of the settlement documents” bears the required signatures. In Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37, the court said, “[w]e conclude that a party cannot satisfy section 664.6’s signature requirement simply by adding its signature to a document that does not call for it. The purpose of section 664.6’s signed writing requirement—to provide unequivocal proof of the parties’ intent to enter a binding settlement—would be frustrated if courts enforced written agreements pursuant to that section where, as here, the agreement only contemplates the signature of one party. Section 664.6 requires the parties’ signatures because ‘settlement is such a serious step that it requires the client’s knowledge and express consent. (1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 194, pp. 221-222.)’ (Levy v. Superior Court (1995) 10 Cal.4th 578, 583 [41 Cal.Rptr.2d 878, 896 P.2d 171].) A party’s signature fails to convey such knowledge and consent unless it is contained in a document that was clearly intended by that party to be a binding settlement agreement.”
Here the signatures were not contained in the settlement agreement, and there was not even a place for the signatures of Gelbard and ECP. Moreover, Gelbard’s signature was not valid until the bankruptcy court approved the agreement.
The bankruptcy court refused to approve the agreement until the California courts had approved the settlement agreement. This was because Blix had asserted that there was no settlement agreement. The attorney for Gelbard and ELC acknowledged that the trustee in bankruptcy was the real party in interest and bankruptcy court approval was necessary.
Accordingly, the trial court erred in enforcing the settlement agreement pursuant to section 664.6. We express no opinion on whether the settlement agreement is enforceable by other means, such as by a summary judgment, separate suit in equity, or an amendment to the pleadings. (See Levy v. Superior Court, supra, 10 Cal.4th at p. 586, fn. 5; Elnekave v. Via Dolce Homeowners Assn., supra, 142 Cal.App.4th at p. 1199-1200, fn. 4.)
DISPOSITION
The judgment is reversed. Appellants are to recover costs on appeal.
I concur: KRIEGLER, J.
ARMSTRONG, Acting P. J.
I respectfully dissent.
In my view (and as the Cassidys argue) the doctrines of estoppel, waiver, and forfeiture apply to this case. Blix Street signed the Settlement Agreement as "a final binding agreement subject to judicial enforcement pursuant to CCP 664.6," with full knowledge of the facts it now asserts as bars to enforcement. In reliance on the fact that Blix Street signed, and agreed to tell the court that the case had settled, the Cassidys stopped trial preparation and joined Blix Street in urging the court to dismiss the jury. It lost the opportunity to take steps -- a faxed signature from Daniel? -- which would have protected it from just the kind of position Blix Street now takes in its efforts to avoid the Agreement it signed. The Cassidys' participation in a day long mediation and all their efforts to settle this case have bought them only lost time, lost money, and new issues to litigate.
The court, which had no choice but to rely on Blix Street's representations, has also suffered. It dismissed the jury and put aside the parties' "lengthy, albeit positively fascinating, briefs and depositions." Now, it must begin again, and not because Blix Street was the victim of any unfairness or suffered any harm. Blix Street merely changed its mind. Blix Street is attempting to use Levy v. Superior Court (1995) 10 Cal.4th 578 as an escape hatch through which it can avoid the obligations it voluntarily undertook. I do not believe that the Supreme Court intended to allow such conduct. Blix Street did not insist that the Settlement Agreement be signed personally by Daniel Cassidy or ECP or Gelbard when it signed the Agreement, or when it told the court that the case had settled, and in my view it may not do so now.
"Forfeiture is the failure to make the timely assertion of a right" (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371), and waiver is the intentional relinquishment or abandonment of a known right or "loss of an opportunity or a right as a result of a party's failure to perform an act it is required to perform, regardless of the party's intent to abandon or relinquish the right." (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 314-315.) By not acting at the time of the settlement, Blix Street forfeited and waived any rights it had under the theories it now asserts. Further, Blix Street's assertion in response to the Cassidys' motion to enforce the Agreement, that the case had not settled, was entirely inconsistent with its earlier position, that the case had settled and the jury could be dismissed. That creates an estoppel. "'A party cannot thus "blow hot and cold." [Citations.] The courts would be impotent indeed if they were compelled to approve such duplicity.'" (Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 679.)
I emphasize: Blix Street not only settled the case, it explicitly agreed that the settlement was enforceable under section 664.6. The benefits of enforcement under that statute were part of the bargain the parties reached.
In Levy, supra, attorneys (outside the parties' presence) negotiated the settlement of an action. The negotiation culminated in a letter written by one lawyer and confirmed by the other, who wrote on it: "This document . . . is acceptable," and signed his own name -- not for or as his client, but as himself. One of the clients later refused to sign the formal settlement agreement. The other client filed a motion to enforce under section 664.6. The Supreme Court held that the agreement could not be so enforced and that the statute's requirement that the writing be "signed by the parties" means that the parties themselves must sign. (Levy, supra, 10 Cal.4th at p. 586.) The Court found that "Because the settlement of a lawsuit is a decision to end the litigation, it obviously implicates a substantial right of the litigants themselves. Given this circumstance and section 664.6's focus on settlements, we conclude that in providing for an enforcement mechanism for settlements by 'parties,' the Legislature intended the term to literally mean the litigants personally." (Id. at p. 584.)
Levy has been applied to any number of situations, but no case holds that equitable doctrines do not apply -- and I believe that they do. "Levy's clear concern was protecting parties from harm caused by either their own or their attorney's improvidence, or their attorney's unauthorized actions." (Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1294; see Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1580.) Here, no party, least of all Blix Street, has been harmed by any action of counsel.
None of the concerns Levy expressed when it interpreted section 664.6 are present here. Levy wrote that "settlement is such a serious step that it requires the client's knowledge and express consent," (id. at p. 583) and that "The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. It also protects parties from impairment of their substantial rights without their knowledge and consent." (Id. at p. 585, citations and footnote omitted.)
In this case, the settlement did not impair any party's substantial rights, without that party's consent. Blix Street directly participated in the negotiation, with the assistance of counsel, and pronounced itself satisfied by the result. This was no hasty or improvident settlement, but was commenced by and with the principal parties, after trial began. No conflicting interpretations have been advanced, and the Agreement itself states that it is final, binding, and summarily enforceable, indicating that the parties understood the seriousness and finality of their agreement.
Further, it is obvious that Blix Street never came to any harm through Daniel Cassidy's signature through counsel, or even had any fear of harm. It signed the Settlement Agreement and accepted his signature through counsel. It did not even raise any issue concerning Daniel's signature until after he moved to enforce the Agreement, once again binding himself to its terms.
Nor did Blix Street have any concern about Gelbard or ECP. The majority notes that the record reflects that Gelbard at one point had "qualms" about the Agreement, and concludes that "that is the very reason for requiring signatures." But the record also establishes that Blix Street knew about Gelbard's qualms (which were temporary) before it represented to the court that the case had settled. In my view, if Blix Street had no problem with Gelbard's qualms or Gelbard's signature at that point, the issue cannot be raised now, especially because Gelbard signed the Agreement before the Cassisdys moved to enforce it. The majority notes that our record does not include a copy of the Agreement with Gelbard's signature. True, but it does include his declaration that he had signed, which is no doubt sufficient to bind him.
The question of Gelbard's and ECP's signatures is, at any rate, a red herring. The Settlement Agreement on its own terms does not depend on their signatures. Instead, they were to "be releasors under the more formal agreement documents" to be prepared later. Further, Blix Street repeatedly obligated itself to obtain those signatures, telling the court that "we need to get a signature" from ECP and that "we need to navigate" issues relating to Gelbard, impliedly acknowledging that the covenant of good faith and fair dealing implied in the Settlement Agreement imposed on it "the obligation to do everything that the contract presupposes they will do to accomplish its purpose." (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) In fact, that is the law whether or not Blix Street acknowledged it. The Agreement obligated Blix Street to make best efforts to obtain signatures from ECP and Gelbard. It failed to make such efforts, and cannot now complain about the lack of signature, or the form of the signature.
When it mattered, when problems could have been fixed, Blix Street was content with everything it now objects to. The problems became problems only after Blix Street changed its mind about the Agreement. Blix Street seeks to use Levy as a free change-of-mind pass. I do not believe that it should be allowed to do so.
Further, in my view, this case is distinguished from Levy and its progeny because Daniel Cassidy gave his lawyer his proxy "to execute my settlement of the case." That means that Sun was not signing for himself, as were the lawyers in Levy and Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, or as Daniel's agent, as in Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110 and Murphy v. Padilla (1996) 42 Cal.App.4th 707, 716. He was signing as Cassidy, a different matter. (See also Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1707-1708 [statute not satisfied by lawyers' oral assent to settlement during conference call with judge]; Williams v. Saunders (1997) 55 Cal.App.4th 1158 [statute not satisfied where a wife "authorized" her husband and co-defendant to sign for her]; and Sully-Miller Contracting Co. v. Gladson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 33 [statute not satisfied by signature on a unilateral offer to settle, which did not call for that signature].)
The differences are real and significant. As the Supreme Court found, where a lawyer signs, as that lawyer, the client's rights may be compromised. And as we all know, a claim of agency can easily result in litigation concerning the existence of the agency or the scope of the agency and so on. An act through a proxy is not vulnerable to that kind of claim. A proxy may be revoked, but I do not know that an act undertaken while the proxy is valid can be rescinded.
The majority writes that "proxy" is primarily used in connection with proxy voting in a corporate context. The concept is not, however, limited to that use or that context. A "proxy" is "One who is authorized to act as a substitute for another." (Black's Law Dictionary (8th ed. 2004); In re Jennings (2004) 34 Cal.4th 254, 263 [one who purchases alcohol "for" an underage person "acts as a buyer by proxy"].) Daniel was not a non-signing party. He gave Sun his proxy, and signed through that mechanism. That makes this case unlike any of the cases on which the majority relies.
Finally, because I would affirm, I note that I find no merit to Blix Street's other contentions on appeal. In sum, the contention that the Settlement Agreement was merely a revocable, and revoked, "offer to settle" is belied by the language of the Agreement. Lack of bankruptcy court approval did not bar enforcement under section 664.6 for the same reasons that lack of Gelbard's and ECP's signatures did not. The Settlement Agreement obliged Blix Street to obtain that approval, not to thwart the Cassidys' attempts to do so. As to the argument that the Settlement Agreement lacked material terms, I can only write that the purportedly missing terms were not material to Blix Street when it signed the Agreement as a final, binding, and enforceable agreement, and thus cannot be deemed material now.