Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C04-01451
SIMONS, J.
Defendants A.G. Edwards & Sons, Inc. (A.G. Edwards), and Douglas Potter (Potter) appeal from a stipulated judgment confirming an arbitration award in favor of plaintiff Sandra Crook. Defendants contend the trial court erred in denying their motion to enforce a settlement reached during a prearbitration mediation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the outset, it is important to note that much of the record in this case has been filed under seal in this court, due to the parties’ agreement to maintain the confidentiality of the settlement terms. On appeal, both parties obtained permission to file their briefs under seal. We have endeavored in this decision to maintain the confidentiality of the sealed documents. We did inform the parties that, in light of this court’s constitutional obligation to decide this appeal in a reasoned written decision (Cal. Const., art. VI, § 14), it would be necessary to disclose certain settlement terms in order to explain our reasoning. Neither party objected.
Plaintiff is a financial consultant who has worked in the Walnut Creek office of A.G. Edwards since the year 2000. In March 2003, Potter became branch manager of the office. In August 2004, plaintiff filed suit against defendants, alleging that Potter sexually harassed her, that defendants retaliated against her when she complained, and that defendants intentionally caused her severe emotional distress. The case was ordered into arbitration.
Plaintiff agreed to settle her claims against defendants at a mediation on October 14, 2005. The parties memorialized their agreement in a handwritten memorandum of understanding (MOU). The MOU contemplated the parties would formalize the settlement in a subsequent typewritten agreement.
On November 1, 2005, defendants sent plaintiff a draft Confidential Settlement Agreement and Release (Draft Agreement). On November 22, plaintiff notified defendants that she rejected and/or revoked the Draft Agreement and MOU, relying on language in the Draft Agreement and MOU that she argued permitted her to do so.
In January 2006, defendants filed a motion to enforce the MOU. The trial court denied the motion.
The parties arbitrated plaintiff’s claims and the arbitration panel awarded plaintiff compensatory and punitive damages, attorney’s fees, costs, and interest. In September 2007, the trial court issued a judgment in accordance with the award pursuant to the parties’ stipulation.
DISCUSSION
Defendants contend the trial court erred in denying their motion to enforce the settlement reached at the October 2005 mediation. The handwritten MOU contained terms resolving all of plaintiff’s claims against defendants and specified that the terms would “be subsequently memorialized in a formal, typed Confidential Settlement Agreement and Release (‘Agreement’).” The MOU contained a provision granting plaintiff “the rights to review and revoke the agreement in accordance with the provisions of the Older Workers’ Benefit Protection Act.” The trial court relied on that revocation provision, concluding it gave plaintiff the right to reject the Draft Agreement presented by defendants in November 2005.
Plaintiff contends that defendants waived any objection to the judgment because they stipulated to it. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-402.) This issue does not affect our fundamental appellate jurisdiction. (Id. at p. 399.) Because we conclude the trial court did not err in denying the motion to enforce the MOU, we need not address plaintiff’s waiver argument.
The parties agree with this characterization of the language of the provision. We rely on the parties’ representations, because the relevant language is cutoff on the copy of the MOU in the record.
Interpretation of a settlement agreement is governed by the same principles applicable to any other contract. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) The fundamental goal is to give effect to the mutual intent of the parties. (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.) That mutual intent is determined by “ ‘objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.) “The question is what the parties’ objective manifestations of agreement or objective expressions of intent would lead a reasonable person to believe.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
When a dispute arises over the meaning of contract language, the court must decide “ ‘whether the language is “reasonably susceptible” to the interpretation[s] urged by the part[ies].’ ” (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448.) Even if an ambiguity is not evident in the language of the contract, extrinsic evidence of the parties’ intent may show that a contract is reasonably susceptible to a party’s interpretation. (Ibid.) As explained in Morey v. Vannucci, supra: “Where the meaning of the words used in a contract is disputed, the trial court must provisionally receive any proffered extrinsic evidence which is relevant to show whether the contract is reasonably susceptible of a particular meaning. [Citations.] . . . Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible. [Citations.]” (64 Cal.App.4th at p. 912; see also Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1350-1351.) The same extrinsic evidence may be used to show that a contract is ambiguous and to aid in interpretation of the contract. (Wolf, at p. 1351.) Where the interpretation does not involve credibility determinations regarding conflicting extrinsic evidence, we independently review the trial court’s determination on appeal. (Ibid.) The extrinsic evidence is undisputed and the parties agree the standard of review in this case is de novo.
Defendants contend the revocation provision in the MOU only permitted plaintiff to revoke settlement of any claim under the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. § 621 et seq.), because the Older Workers Benefit Protection Act (OWBPA) (29 U.S.C. § 626(f)) only relates to ADEA claims. The United States Supreme Court summarized the act as follows: “The OWBPA provides: ‘An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary. . . . [A] waiver may not be considered knowing and voluntary unless at a minimum’ it satisfies certain enumerated requirements . . . .” (Oubre v. Entergy Operations, Inc. (1998) 522 U.S. 422, 426-427, quoting 29 U.S.C. § 626(f)(1).) Because the OWBPA provides plaintiff no rights vis-a-vis her non-ADEA claims (Oubre, at pp. 426-428; Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1367-1368), defendants argue that the revocation provision in the MOU cannot be construed to permit plaintiff to revoke her settlement as to those claims.
Although plaintiff did not actually assert a claim under the ADEA, defendants suggest that the settlement sought to resolve all potential claims arising out of plaintiff’s employment.
Defendants’ analysis misses the mark. The critical issue in interpreting the MOU is not what revocation rights the OWBPA requires, but what rights the parties intended to confer. The MOU does not state that “plaintiff has the right to revoke her assent to settlement of any ADEA claim” or that “plaintiff has the revocation rights provided by the OWBPA.” Instead, the MOU grants plaintiff the right to revoke “the agreement . . . in accordance with” the OWBPA. The MOU at the outset defines “Agreement” as the anticipated “formal, typed Confidential Settlement Agreement and Release.” Accordingly, plaintiff contends the MOU expresses the parties’ intention to extend the OWBPA review and revocation procedures to the anticipated formal agreement in its entirety.
The reasonableness of plaintiff’s construction is demonstrated by defendants’ conduct subsequent to execution of the MOU. Before any dispute arose, defendants mailed plaintiff the Draft Agreement (labeled “Confidential Settlement Agreement and Release”) for her execution. As a formal memorialization of the MOU, the document necessarily reflects defendants’ understanding of the MOU. The Draft Agreement contains a detailed review and revocation provision, which is not limited to ADEA claims. In particular, it states plaintiff “[i]s, through and in accordance with the terms set forth in this Agreement, releasing [defendants] from any and all claims she has or may come to have against [defendants],” “[h]as a full twenty-one (21) days after receipt of this Agreement within which to review and consider the Agreement,” and “[h]as seven (7) days after the execution of this Agreement within which she may revoke this Agreement.” Notably, the review period clearly runs from the date of delivery of the Draft Agreement and the revocation period begins after execution of the document. The only specific reference to the ADEA is a provision that plaintiff is not waiving any ADEA claims that may arise after execution, presumably in contrast to the prospective waiver as to other claims. The Draft Agreement, prepared by defendants before any dispute arose, shows that the MOU is reasonably susceptible to plaintiff’s construction.
The same evidence is also an “ ‘objective manifestation[] of the parties’ intent’ ” (People v. Shelton, supra, 37 Cal.4th at p. 767) that helps us properly construe the MOU. Because there is no evidence that the parties specifically discussed and agreed on the scope of the revocation provision, “the conduct of the parties after the execution of the contract, and before any controversy arose, may be considered in order to attempt to ascertain the parties’ intention. [Citation.] ‘It is well settled that although an agreement may be indefinite or uncertain in its inception, the subsequent performance of the parties will be considered in determining its meaning for they are least likely to be mistaken as to the intent. [Citations.]’ [Citations.]” (Oceanside 84, Ltd. v. Fidelity Federal Bank, supra, 56 Cal.App.4th at p. 1449; see also Shelton, at p. 767.) Defendants evidenced their understanding of the scope of the revocation language in the MOU when they mailed plaintiff the Draft Agreement with provisions extending the OWBPA review and revocation procedures to the entire agreement.
The 21-day review period and seven-day revocation period specified in the Draft Agreement are the same periods specified in the OWBPA. (29 U.S.C. § 626(f)(1)(F) & (G); Oubre v. Entergy Operations, Inc., supra, 522 U.S. at pp. 428-429.)
We construe the MOU to grant plaintiff the right to review and revoke the Draft Agreement in its entirety, not just as to any ADEA claim. Because plaintiff exercised her right to reject the Draft Agreement before expiration of the review period, the trial court did not err in denying defendants’ motion to enforce the MOU.
Because the MOU provided plaintiff the right to review and revoke the Draft Agreement, we reject defendants’ contention that the revocation period commenced upon execution of the MOU.
DISPOSITION
The judgment is affirmed. The matter is remanded for consideration of any request for attorney fees. Plaintiff is awarded her costs on appeal.
Plaintiff requests attorney fees on appeal. Any claim for attorney fees should be made pursuant to rule 3.1702 of the California Rules of Court.
We concur. JONES, P.J., NEEDHAM, J.