Filed 3/19/13 Bajan v. Mikos CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MATTHEW BAJAN, JR., et al.,                                         D061380

         Plaintiffs and Respondents,

         v.                                                         (Super. Ct. No. 37-2008-00094754-
                                                                     CU-FR-CTL)
JAN MIKOS et al.,

         Defendants and Appellants.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard E.

L. Strauss, Judge. Reversed.


         Matthew Bajan, Jr. (Matthew) and Boguslaw Bajan (Boguslaw) (collectively

Brothers) successfully moved for a judgment under Code of Civil Procedure section

664.6 (section 664.6) to enforce a written settlement agreement among multiple parties,

including Jan and Halina Mikos. The Mikoses appeal, contending the court erred in

entering judgment under section 664.6 because the Mikoses revoked the settlement
agreement before all parties personally signed the agreement and because the agreement

was the result of undue influence, economic duress, and mistake.

       We conclude the judgment must be reversed because of the lack of a timely

signature by one of the settling parties (Boguslaw). This conclusion means only that the

settlement agreement is not enforceable through the expedited section 664.6 procedure.

It does not preclude the enforcement of the written settlement agreement through other

procedural means, including an amendment of the pleadings or an independent breach of

contract action. Based on our holding, we do not reach the Mikoses' undue

influence/mistake contentions and omit a full discussion of these contentions in the

opinion.

           RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

       The parties' participation in the multi-party settlement arose from the Brothers'

lawsuit against Jan and Halina Mikos and the estate and trust of Henry Lisowski (the

Mikos/Lisowski lawsuit). In their lawsuit, the Brothers alleged the Mikoses and

Lisowski engaged in wrongful conduct (including fraud and forgery) to alter their father's

will and unlawfully converted their father's estate assets that should have gone to the

Brothers. The Brothers also alleged these defendants were responsible for their father's

death. They alleged they first discovered the wrongful conduct by the Mikoses and

Lisowski when a police detective contacted them with relevant information while the

detective was investigating the death of Lisowski's wife (Rosa). Lisowski was thereafter

convicted of murdering Rosa, and Lisowski committed suicide while awaiting sentencing

for Rosa's murder.

                                             2
       Numerous other individuals also sued Lisowski's trust and estate, including Rosa's

survivors (who brought a wrongful death lawsuit) and various creditors and other

claimants.

       On October 4, 2011, numerous parties who had claims against the Lisowski estate

and trust engaged in a lengthy mediation of all claims asserted in the various lawsuits,

including the Brothers' action against the Mikoses and Lisowski, and the wrongful death

action brought by Rosa's survivors. The all-day mediation was conducted by attorney

Douglas Barker. The Mikoses were physically present at all times and were represented

by counsel. Matthew was physically present, but Boguslaw, who is a judge in Poland,

was not present. However, the same counsel represented both Brothers, and Boguslaw

was in telephone contact with Matthew and counsel during the settlement negotiations.

All other parties and their counsel were physically present except Jessica Ramos, Rosa's

adult daughter.

       At the end of that day (October 4), all parties agreed to a detailed comprehensive

multi-party written settlement agreement entitled "AGREEMENT OF SETTLEMENT

AND MUTUAL GENERAL RELEASE" (Settlement Agreement). The Settlement

Agreement contained provisions making clear the agreement was intended as a final

resolution of all disputes and controversies between and among the parties. The

Settlement Agreement allowed the parties to sign the agreement in counterparts, and each

party represented that he or she reached agreement with the assistance or advice of

counsel, had made an investigation into the facts, and understood the contents of the

agreement.

                                             3
       Under the written settlement terms, the Brothers agreed to release their claims

against the Mikoses (including waiving a prior monetary sanctions award) in exchange

for the Mikoses' transferring their home into an irrevocable trust which provided the

Mikoses with a life estate with the remainder to the Brothers upon the death of both

Mikoses. The Settlement Agreement also contained numerous detailed provisions about

all parties' rights to the assets of the Lisowski estate and trust.

       The Settlement Agreement was signed on October 4, 2011 by: (1) the executor of

Lisowski's estate (and the executor's counsel); (2) the successor trustee and beneficiary of

Lisowski's trust (and his counsel); (3) Matthew, who signed the agreement twice: once in

his individual capacity and once "as agent under power of attorney for Boguslaw Bajan";

(4) the Brothers' counsel; (5) the Mikoses; (6) the Mikoses' counsel; (7) Rosa's adult son;

(8) the guardian ad litem for Rosa's two minor children; and (9) the guardian ad litem's

counsel.1

       About two weeks later, on October 17, the Mikoses notified the court and the

Brothers' counsel by letter that they intended to revoke or rescind their consent to the

Settlement Agreement. They claimed their agreement to the settlement resulted from




1      Although Jessica Ramos (Rosa's adult daughter) was not present at the time of the
signing, there is evidence showing she signed and dated the Settlement Agreement later
that evening. Based on the court's order, we presume the court found this evidence
credible and find substantial evidence in the record supporting this conclusion. We thus
omit further discussion of the Mikoses' claim that Jessica did not timely sign the
agreement.

                                                4
"undue influence and mistake" and that they did not understand the alternatives and

consequences of the settlement before signing the agreement.

       Two weeks later, on November 2, the Brothers filed a motion under section 664.6,

requesting the court enter judgment on, and enforce, the Settlement Agreement. The

Brothers attached the Settlement Agreement that contained personal signatures from all

parties, except for Boguslaw's personal signature. As noted, Matthew had signed the

Settlement Agreement on behalf of Boguslaw. The Brothers also submitted the

declaration of their counsel who stated that during the multi-party settlement

negotiations, the Mikoses were represented at all times by their own attorney and the

Mikoses' attorney was fully aware of the relevant facts through litigation motions and

extensive discovery.

       The Mikoses opposed the motion. They argued the Settlement Agreement was not

enforceable under section 664.6 because two of the parties (Jessica Ramos and

Boguslaw) did not personally sign the agreement, arguing that "case law clearly holds

that in order to be entitled to the expedited relief under [section] 664.6, all parties must

personally sign." Relying on paragraph 3.1 of the Settlement Agreement, they also

argued that they revoked the agreement before it became effective. Paragraph 3.1 states:

"This Agreement shall become immediately effective at the time that this Agreement is

signed by all of the parties set forth above . . . ."

       The Mikoses also requested the court to rescind the agreement because it was the

product of undue influence, economic duress, and mistake of fact. In support of this



                                                 5
argument, they submitted their lengthy declarations in which they said they are elderly,

not in good health, and were unfairly pressured to sign the Settlement Agreement.

       In reply, the Brothers argued the Mikoses' October 17, 2011 revocation letter was

ineffective because it was communicated after the Settlement Agreement was fully

executed on October 4, 2011. They also submitted a new copy of the Settlement

Agreement with Boguslaw's personal signature, dated November 8, 2011. This new copy

of the Settlement Agreement contained an additional typewritten signature line at the

bottom of page 9 with Boguslaw's signature. The Brothers also submitted a copy of a

notarized "SPECIAL POWER OF ATTORNEY" document, executed on September 28,

2011 by Boguslaw, in which Boguslaw authorized Matthew to act on his behalf with

respect to the Mikos/Lisowski litigation.

       The Brothers additionally submitted their counsel's declaration who stated in

relevant part: "At the [October 4] mediation, it was explained to the mediator . . . and

counsel for the various parties, that [Matthew] had authority by virtue of a Special Power

of Attorney which had been signed and notarized, to represent his brother Boguslaw's

interests at the mediation. A copy of the Power of Attorney was provided to all counsel

who requested it. [¶] . . . [¶] . . . During the mediation, [Matthew] phoned his brother

[Boguslaw] in Poland, and spoke with him concerning the offers and counter offers that

were being made, both with respect to the claims against Mr. and Mrs. Mikos, and the

Lisowski trust and estate. [¶] . . . [¶] . . . [After the mediation, the Settlement Agreement]

was sent by Federal Express to Boguslaw in Poland. He signed and returned the

Agreement."

                                              6
      After considering the parties' written submissions and holding a hearing, the court

granted the Brothers' motion to enforce the settlement and entered judgment on the

Settlement Agreement under section 664.6.

      The Mikoses appeal.

                                     DISCUSSION

      The Mikoses contend the court erred in enforcing the written Settlement

Agreement under section 664.6 because: (1) the agreement was not personally signed by

Boguslaw before the Mikoses revoked the agreement; and (2) the settlement must be

vacated because of undue influence, economic duress or mistake of fact. Because we

conclude the first argument has merit we do not reach the second argument.

                       I. Summary of Applicable Legal Principles

      The Legislature enacted section 664.6 to provide an expedited procedure to

enforce a settlement agreement executed during pending litigation. (Weddington

Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) The procedure is available

only when "certain requirements that decrease the likelihood of misunderstandings are

met." (Levy v. Superior Court (1995) 10 Cal.4th 578, 585 (Levy); Conservatorship of

McElroy (2002) 104 Cal.App.4th 536, 548-549.) Section 664.6 is not the exclusive

procedure for enforcing a settlement agreement. (Levy, supra, 10 Cal.4th at p. 586, fn.

5.) Even when the statutory procedure is unavailable, a party may enforce a settlement

agreement through other means such as a motion for summary judgment or a breach of

contract action. (Ibid.; Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1122

(Gauss).)

                                            7
       Section 664.6 provides, in relevant part: "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." (Italics added.)

       In Levy, the California Supreme Court defined the statutory term " 'parties' " to

mean "the specific person or entity by or against whom legal proceedings are brought."

(Levy, supra, 10 Cal.4th at p. 583.) Under this definition, the court held that a written

settlement agreement is unenforceable under section 664.6 unless a party "personally"

signs the agreement. (Id. at p. 584.) Because the settlement agreement in Levy was

signed by the litigant's attorneys but not by the litigant personally, the court held the

agreement could not be enforced under the summary procedure of section 664.6. (Id. at

p. 586.) Under this holding, an attorney's signature does not satisfy the signature

requirement even if the party gave his or her attorney the specific authority to enter into

the settlement. (See id. at pp. 583-584.)

       In interpreting section 664.6 in this manner, the Levy court reasoned that

"settlement is such a serious step that it requires the client's knowledge and express

consent." (Levy, supra, 10 Cal.4th at p. 583.) The court further observed that a party-

signature requirement will "tend[ ] 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



                                              8
settlement. [Citations.] It also protects parties from impairment of their substantial rights

without their knowledge and consent." (Id. at p. 585, fn. omitted.)

       California courts have since strictly applied Levy's holding and have consistently

declined to recognize any exceptions to the rule that litigants themselves must sign a

written settlement agreement to permit enforcement under section 664.6. (Gauss, supra,

103 Cal.App.4th at pp. 1116-1123; Sully-Miller Contracting Co. v. Gledson/Cashman

Construction, Inc. (2002) 103 Cal.App.4th 30, 37 (Sully-Miller); Williams v. Saunders

(1997) 55 Cal.App.4th 1158, 1162-1164 (Williams); Murphy v. Padilla (1996) 42

Cal.App.4th 707, 716.) Under these holdings, section 664.6 is not available to enforce a

settlement agreement if a party did not personally sign the agreement, even if the

agreement was signed by the party's agent and the party expressly authorized the agent to

enter into a settlement on its behalf. (See Gauss, supra, 103 Cal.App.4th at pp. 1116-

1122; Williams, supra, 55 Cal.App.4th at pp. 1162-1164.) Moreover, the statutory

requirement of a "writing 'signed by the parties' " means all the parties to the settlement

agreement, including "the parties seeking to enforce the agreement under section 664.6

and against whom the agreement is sought to be enforced." (Harris v. Rudin, Richman &

Appel (1999) 74 Cal.App.4th 299, 305.)

                                        II. Analysis

       The Brothers acknowledge Levy's party-signature requirement is a prerequisite to

section 664.6 enforcement and recognize that Boguslaw did not initially personally sign

the Settlement Agreement. However, they argue the Settlement Agreement was

nonetheless enforceable under section 664.6 because: (1) Matthew signed the agreement

                                              9
on Boguslaw's behalf under a written and notarized power of attorney; and (2) any

insufficiency in satisfying the party-signature requirement was remedied when Boguslaw

signed the Settlement Agreement about one week after the Brothers filed their section

664.6 motion.

       Under well settled law, neither argument has merit.

       First, the fact that Matthew signed the settlement agreement under a power of

attorney is insufficient to satisfy Levy's personal-signature requirement. The Special

Power of Attorney signed by Boguslaw grants Matthew the power to act as Boguslaw's

"attorney-in-fact . . . for the purpose of representing [Boguslaw] . . . in all aspects of the

[Mikos/Lisowski] litigation" and provides Matthew "full authority to act in any manner

necessary. . . , including the power to prosecute, settle and otherwise resolve the litigation

. . . ." Under California law, a person acting under a written power of attorney generally

has "the same rights and privileges that would be accorded the principal if the principal

were personally present and seeking to act." (Prob. Code, § 4300.)

       Relying on the broad language of the Special Power of Attorney and California

law governing powers of attorney, the Brothers argue that because Matthew had the full

written authority to bind Boguslaw to the Settlement Agreement and act on his behalf in

the litigation, Matthew's signature should be sufficient to satisfy section 664.6's party-

signature requirement.

       Although the argument is persuasive when considered in isolation, we must

evaluate the factual and legal issues in the specific statutory context in which this case

arises. A person acting under a written power of attorney is essentially acting in the role

                                              10
of an authorized agent. (See Prob. Code, § 4051.) As with a contract signed under a

power of attorney, a contract signed by an agent with authority to act on the principal's

behalf is binding on the principal. (Civ. Code, §§ 2316, 2330, 2337.) However, the Levy

court and its progeny have made clear that an agency relationship—even an express

one—is insufficient to satisfy section 664.6's party-signature requirement. The courts

have consistently rejected traditional agency analysis with respect to the enforceability of

a settlement agreement under the section 664.6 procedure. (See Critzer v. Enos (2010)

187 Cal.App.4th 1242, 1255 [" 'Levy . . . prevent[s] respondents from relying on agency

principles to satisfy the requirements of section 664.6' "]; Gauss, supra, 103 Cal.App.4th

at pp. 1118-1119; Williams, supra, 55 Cal.App.4th at pp. 1162-1164.) Even where a

party gives a third party the specific power to settle a matter on his or her behalf, the

courts have held the third party's signature on a settlement document is insufficient to

permit enforcement under section 664.6. (Gauss, supra, 103 Cal.App.4th at pp. 1118-

1119.)

         In this regard, this case is indistinguishable from Gauss, supra, 103 Cal.App.4th

1110. In Gauss, the defendant expressly authorized in writing a third party entity to act

as its exclusive agent in the defense and settlement of asbestos-related claims alleged

against it. (Id. at p. 1113.) When the plaintiff sought to enforce a settlement agreement

signed by the specially designated agent, the Court of Appeal held that a settlement

agreement signed by the designated agent on the defendant's behalf could not be enforced

under section 664.6 because it had never been signed by the defendant personally. (Id. at

pp. 1116-1123.) Noting that "Levy itself holds that the signature of a duly authorized

                                              11
attorney, who acts as an agent of the client [citation] does not suffice to permit

enforcement of a settlement under section 664.6" (id. at p. 1119), the Gauss court stated

that "[s]ection 664.6, as construed by the Supreme Court in Levy, simply does not permit

the use of its summary, expedited procedures to enforce a settlement agreement signed

only by a party's agent." (Id. at p. 1121.)

       Similarly, in Williams, the court held that even assuming the defendant (who was

out of the country) expressly gave authority to her husband and codefendant to settle the

case on her behalf, the lack of the defendant's personal signature on the settlement

agreement precluded enforcement under section 664.6. (Williams, supra, 55 Cal.App.4th

at pp. 1160, 1162-1164; see also Murphy v. Padilla, supra, 42 Cal.App.4th at p. 716

[Levy precludes reliance on agency principles to satisfy the requirements of the statute].)

       The Brothers argue that a conclusion that section 664.6 is unavailable here would

"undercut and abrogate the statutory scheme created by the [L]egislature regarding

powers of attorney," particularly where the absent party is "aged, or disabled, or lives in

another country."

       Although this policy argument is compelling, we are required to enforce statutes

as they are written and as they are interpreted by the California Supreme Court. Under

the holding and rationale of Levy, a party—and not the party's agent—must sign the

settlement agreement for the agreement to be enforceable under the expedited procedures

of section 664.6. To the extent this result is inconsistent with other important public

policies, we are bound by the holdings of our high court. Moreover, underlying the

Brothers' policy argument is their suggestion that the Levy rule unfairly eradicates

                                              12
California's power-of-attorney rules. This premise is faulty. The Levy rule does not

affect the full enforceability of a settlement agreement executed by an attorney-in-fact

under a power of attorney. The rule instead precludes only one statutorily-created

procedural vehicle for enforcing a settlement agreement. Moreover, this is not a case

where the party was incapacitated in the sense that he could not have executed the

settlement agreement in a timely fashion. The record shows that Boguslaw was involved

in the settlement discussions through the telephone and there was no evidence that he did

not have the ability to promptly provide a signature through technological or other means

(e.g., fax machine or email or rapid mail service).

         The Brothers alternatively contend the court properly granted their section 664.6

motion because the record shows that all parties eventually signed the agreement.

However, it is undisputed that Boguslaw's signature was not obtained until after the

Mikoses gave written notice that they were revoking their acceptance of the agreement

and several weeks after the Brothers moved for enforcement of the agreement under

section 664.6. The Mikoses' revocation of their consent to the agreement eliminated the

manifestation of mutual consent that is required by section 664.6. The Mikoses' letter

revoking their consent before all party-signatures had been obtained on the written

Settlement Agreement precluded enforcement under the expedited procedure of section

664.6.

         One of the purposes underlying Levy's strict party-signature requirement is to

minimize at a summary hearing the possibility of conflicting interpretations of the

settlement agreement and of the validity of each party's acceptance of the agreement.

                                              13
(See Levy, supra, 10 Cal.4th at p. 585.) In this case of an initial signature by an agent

followed by an attempted contract revocation by the opposing side, the court was

required to resolve various preliminary factual questions related to the contractual

enforcement issues, such as the nature and scope of the agency and the validity of the

revocation. The Legislature did not intend the expedited section 664.6 procedure to be

used as a substitute for contract enforcement actions. The unilateral addition of

Boguslaw's signature after the Mikoses had revoked their consent and after the Brothers

had filed their section 664.6 motion did not bring this matter within section 664.6's strict

statutory requirements. (See Sully-Miller, supra, 103 Cal.App.4th at p. 37.)

         In this regard, the Brothers' reliance on Elyaoudayan v. Hoffman (2003) 104

Cal.App.4th 1421 (Elyaoudayan) is unhelpful. Under section 664.6, a settlement

agreement is enforceable if parties to pending litigation personally sign the settlement

agreement or the parties personally stipulate to the settlement before the court. In

Elyaoudayan, an oral settlement agreement was recited on the record before the court and

was personally consented to by some, but not all, of the parties. (Elyaoudayan, supra, at

pp. 1424-1425.) The parties who were not present in the courtroom later signed a

stipulation attaching a transcript of the court proceeding at which the settlement was

recited. (Id. at p. 1426.) The Court of Appeal held that, because "[a]ll parties agreed to

the settlement in one form or the other or both," it was enforceable under section 664.6

notwithstanding the " 'mix and match' approach to the manner of agreement." (Id. at p.

1432.)



                                             14
       We agree with this principle. But in Elyaoudayan, unlike here, there were no facts

showing that a party sought to revoke the agreement before the remaining parties'

personal signatures were obtained on the transcript of the oral hearing. The issue here is

whether obtaining a party's signature after the opposing parties had revoked their consent

is sufficient to allow enforcement under section 664.6. Applying well settled law in this

state, enforcement under section 664.6 is not permitted under these circumstances.

       Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289 is also

distinguishable. Provost held that when a party to pending litigation is a corporation or

other similar entity that must act through individuals, the entity may appoint an employee

(with appropriate knowledge and position) as the "authorized representative" of the party

and section 664.6's party-signature requirement is satisfied if this representative signs the

settlement agreement. (Provost, supra, at pp. 1296-1297.) In so holding, the Provost

court distinguished Gauss, by explaining that in Gauss the corporate party appointed a

third party agent, rather than a corporate employee, as the authorized representative in the

litigation and settlement negotiations. (Provost, supra, at p. 1296.) Provost is

inapplicable here because each of the Brothers is an individual rather than an entity. As

in Gauss and Williams, an agent's signature on a settlement agreement is insufficient to

satisfy section 664.6's personal signature requirement, even if the agent was specifically

provided with settlement powers and even if the agent was a codefendant in the action.

       Our conclusion that the lack of Boguslaw's timely personal signature precludes

enforcement under section 664.6 does not mean the Settlement Agreement is invalid or

unenforceable. " '[T]he statutory procedure for enforcing settlement agreements under

                                             15
section 664.6 is not exclusive. It is merely an expeditious, valid alternative statutorily

created. [Citation.] Settlement agreements may also be enforced by motion for summary

judgment, by a separate suit in equity or by amendment of the pleadings . . . .' " (Gauss,

supra, 103 Cal.App.4th at p. 1122.)

       We emphasize that the issues whether the parties' consent to the Settlement

Agreement was properly manifested and whether the agreement is binding on the

Mikoses under California law are not before us. Specifically, our conclusion that

Matthew's signature on behalf of his brother was inadequate to permit enforcement under

section 664.6 has no relevance to the issue whether Matthew had the lawful authority to

sign the Settlement Agreement on Boguslaw's behalf, thus binding the parties under

contract principles and rendering the Mikoses' revocation invalid. The record supports

that Boguslaw gave Matthew the specific authority under the power of attorney to handle

all aspects of the litigation, including settling the litigation. Moreover, Boguslaw

personally participated in the settlement negotiations by telephone. Additionally, there is

substantial evidence supporting the court's implied finding that when the Mikoses signed

the agreement they were represented by counsel and had the time to reflect and consider

the settlement terms.




                                             16
                                  DISPOSITION

     Judgment reversed. Each party to bear its own costs.



                                                            HALLER, J.
WE CONCUR:



HUFFMAN, Acting P. J.



NARES, J.




                                         17
