Filed 9/10/26 Keshishyan v. County of L.A. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ARMENUI IVETTE B335303
KESHISHYAN,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC707338)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kristin S. Escalante, Judge. Affirmed.
Rios & Associates and Ralph M. Rios for Plaintiff and
Appellant.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz & Su,
Avi Burkwitz, and Sherry M. Gregorio for Defendants and
Respondents.
__________________________
Armenui Ivette Keshishyan appeals after a bench trial in
which the trial court determined she breached an agreement to
settle her lawsuit against her employer and supervisor, the
County of Los Angeles and Carlos Carranza (defendants). The
agreement, reached during private mediation, required the
County to obtain approval of its terms from the County Claims
Board (Claims Board). If approved, the agreement required
Keshishyan to dismiss her lawsuit, release all claims against
defendants, and resign from County employment in exchange for
$95,000. At trial, Keshishyan argued she withdrew her consent
to the agreement before it was approved by the Claims Board
such that it could not be enforced against her. The trial court
instead determined the agreement was an enforceable contract
from which Keshishyan could not unilaterally withdraw and that
defendants were entitled to specific performance of the
agreement’s terms.
On appeal, Keshishyan argues the trial court erred in
(1) finding the agreement to be an enforceable contract,
(2) excluding evidence of her duress and coercion in entering the
agreement at the mediation, (3) enforcing the term requiring her
resignation in violation of public policy, and (4) reconsidering
prior rulings of a different trial court judge who denied
defendants’ motions to enforce the agreement under Code of Civil
Procedure section 664.6 (section 664.6). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Keshishyan and the County’s Representative Sign a
Settlement Agreement After Mediation
Keshishyan began working as a phlebotomist for the
County in January 2006. In May 2018, Keshishyan filed a
2
lawsuit against the County and Carranza, alleging claims under
the California Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.) for national origin/race discrimination and
harassment, disability discrimination and harassment, failure to
accommodate her disability, retaliation, failure to prevent
discrimination and harassment, and failure to correct and
remedy discrimination and harassment. In August 2019, the
parties participated in mediation, during which they executed a
short-form settlement agreement (the agreement).
The first line of the two-page agreement states: “This case
having come on this date for a voluntary mediation, it is hereby
stipulated that subject to Claims Board approval by the County
this matter will be deemed settled pursuant to the following
terms and conditions.” The agreement provided that the County,
on behalf of all defendants, would pay Keshishyan $95,000 “as
payment in full for all claims arising from the events described in
the complaint, arising during her employment,” and would
reimburse her for her portion of the mediation fees. The
agreement then stated: “If Claims Board approval can be
obtained, Plaintiff agree[s] to accept said sum with the knowledge
that she will be barred from proceeding against all defendant[s]
in the future concerning this matter. In consideration of
defendant[s] recommending said settlement to the … Claims
Board, Plaintiff agrees to accept said settlement if it is approved
by the Claims Board.”
As further settlement conditions, the agreement stated
Keshishyan must dismiss the case with prejudice, execute a full
and complete release of all defendants from all claims, and resign
from her employment with the County once the settlement funds
were received. The County must provide a neutral reference on
3
Keshishyan’s behalf and not oppose her future application for
disability retirement benefits. The agreement provided the court
would retain jurisdiction to enforce its terms and conditions
pursuant to section 664.6. For its final term, the agreement
stated: “If approved by the Claims Board, this mediation
settlement agreement is intended to be binding and enforceable
and reflects the final agreement between the parties to this
dispute, and each of them, pursuant to Evidence Code [s]ection
1123.”
Keshishyan and her counsel, Yolanda Slaughter, signed the
agreement under a handwritten note stating, “I agree to accept
this settlement if it is approved by the Claims Board.” The
County representative who attended the mediation, Karen Frank
Nunn, signed under a handwritten note stating, “I agree to
recommend this settlement to the Claims Board.” Carranza did
not attend or sign the agreement at the mediation.
A month later, in September 2019, Keshishyan filed a
notice of settlement that indicated a request for dismissal of the
entire case would be filed upon completion of specified terms in
the parties’ settlement agreement. In November 2019, the
Claims Board approved the settlement.
In December 2019, Keshishyan replaced her counsel.
B. Defendants Twice Move To Enforce the Agreement, and
Each Motion Is Denied
In January 2020, defendants moved to enforce the
agreement under section 664.6. Defendants argued the
agreement was valid and enforceable and that they had
performed their obligations under the agreement’s terms.
Specifically, defendants stated the County had secured Claims
Board approval of the settlement in November 2019, reimbursed
4
Keshishyan for her portion of the mediation fees, and finalized a
formal long-form settlement agreement and release with
Keshishyan’s counsel. However, defendants asserted,
Keshishyan was refusing to honor the agreement and sign the
release “because, according to her counsel, [she] has changed her
mind and no longer wants to resign from County employment.”
In opposition, Keshishyan argued the agreement was not
valid because it was not signed by all parties and because she
signed it under duress from her former counsel and the mediator.
She also argued she had “revoked the Agreement prior to the
Boards’ [sic] Approval” and “[t]he [County] Board of Supervisors
was aware [she] had revoked the agreement and was not going to
resign.” In a supporting declaration, Keshishyan stated: “On
September 6, 2019, I wrote a letter to the Board of Supervisors
and personally delivered a letter asking to get my job back and
explained the situation that I was pressured to sign resignation.
I called to make sure my letter was in their hands and I was
informed that it’s in Labor Division department.” She explained
her letter thus “informed the Board of [her] refusal to resign and
not wanting to settle, at least two months before the Board was
scheduled to make a decision on [her] case.”
In August 2020, the trial court (Judge Patricia Nieto)
denied defendants’ motion to enforce under section 664.6 because
Carranza, a named party, had not signed the agreement. The
court declined to consider Keshishyan’s additional argument that
the agreement was invalid because of duress.
In making its ruling, the court noted it was not finding the
settlement agreement “unenforceable.” Rather, the court
clarified it determined only that Carranza’s failure to sign the
agreement “precludes Defendants’ use of the summary procedure
5
found in section 664[.6] and the strict requirements found
therein. There are many other conventional enforcement
procedures that are available to the Defendants.”
In September 2020, defendants filed a second motion to
enforce, with which they presented a copy of the agreement that
Carranza had since signed. Defendants also argued Carranza’s
signature was not necessary to enforce the agreement because
Carranza was a third-party beneficiary to the agreement and
because the County was paying the settlement and indemnifying
Carranza for all liabilities associated with the case as his
employer.
Keshishyan opposed the second motion on the same
grounds as the first motion. She also asserted defendants were
improperly seeking to relitigate an issue the court had already
decided. Keshishyan again supported her opposition with a
declaration describing a letter to the Board of Supervisors that
informed it of her refusal to resign and settle the case.
In October 2020, the court (Judge Nieto) denied defendants’
second section 664.6 motion. The court determined the
agreement could not be enforced because it was contingent on
Claims Board approval and Keshishyan revoked the agreement
before it was approved.
C. Defendants File a Cross-complaint, and Their Breach of
Contract Claim Is Tried by the Court
In September 2021, defendants filed a cross-complaint,
alleging causes of action for breach of contract and promissory
estoppel based on Keshishyan’s refusal to perform under the
agreement.
The case proceeded to trial in January 2023. The trial
court (Judge Kristin Escalante) bifurcated the trial, with an
6
initial bench trial on defendants’ cross-claim for breach of
contract and their request for specific performance of the
agreement. The bench trial lasted two days and included three
witnesses: Nunn, Keshishyan, and Carranza.
1. Nunn
Nunn testified she served as the chief of the claims and
litigation department for the County’s Department of Health
Services. In that position, she played an active role in mediation
proceedings for the County. Nunn was present at Keshishyan’s
mediation and signed the agreement on behalf of the County.
She understood the parties to have reached a settlement and
described the agreement as “a fully-executed settlement subject
to the Board’s approval … for whatever … the moneys are, then it
goes on to be processed. But on the day that we sign off, it is a
fully-executed settlement.”
Nunn also described the mandatory approval process once
the County settles a case, which usually takes three to six
months. She explained a settlement of $95,000 would be
presented for review to the Claims Board, which is a division of
the Board of Supervisors, and that she was responsible for
presenting Keshishyan’s settlement terms to the Claims Board as
the County representative who attended the mediation with
Keshishyan.
Nunn presented the agreement to the Claims Board at its
November 2019 meeting, and the Claims Board approved the
settlement terms, including the payment of $95,000 to
Keshishyan. Nunn explained that, despite having Claims Board
approval, the settlement could not be processed without
Keshishyan’s signature on the long-form settlement and release,
7
which in turn prevented the dispersal of the settlement funds to
Keshishyan.
While Nunn testified she was not aware of Keshishyan’s
letter to the Board of Supervisors at the time of the Claims Board
meeting, defendants later stipulated the County was aware of the
letter before the meeting.
2. Keshishyan
Keshishyan attended the mediation with her former
counsel (Slaughter). Keshishyan signed the agreement and knew
it provided she would be paid $95,000 in exchange for her
resignation. But she understood the agreement to not be final
because it still required Claims Board approval.
Keshishyan told Slaughter two days before, on the day of,
and a day after the mediation that she did not want to resign
from her job. After the mediation, she wanted to revoke the
agreement. When she shared this with Slaughter, Slaughter told
her to “move on.” Slaughter proceeded to negotiate the long-form
settlement and release and file the notice of settlement without
Keshishyan’s knowledge. Keshishyan never signed the finalized
release because she did not want to resign. She also had no
knowledge of a check the County delivered to Slaughter two
weeks after the mediation that was marked as reimbursement for
Keshishyan’s portion of the mediation fees.
Keshishyan testified that about a month after the
mediation she wrote and hand-delivered a letter to the Board of
Supervisors that expressed she did not want to proceed with the
settlement. Keshishyan stated her letter was meant to “revok[e]
any agreement made at the mediation.” She explained she went
to the Board of Supervisors because the agreement indicated the
8
“board has to approve it, and I went there before they approve it
to tell them this is not what I want, please don’t approve it.”
Keshishyan’s letter was admitted as an exhibit. In the
letter, Keshishyan first provided background of the harassment
she contends led to her lawsuit. She then stated that, on
August 6, 2019, “I had a case mediation and my case was settled
and I was pressured to sign a resignation agreement.”
Keshishyan stated she “didn’t do anything wrong to resign” and
had worked very hard in her career. Keshishyan stated “this
case is under review by the Board to approve the settlement, but
this is not what I want, what I want is to work free from
retaliation, harassment and discrimination.” Keshishyan
requested, “I would like the [Board] to look deep into my case and
see what I did wrong. I have a trial date on [January 28, 2020]
and I truly want my job back. I don’t want to resign. … I was not
planning on resigning that day.” The letter concluded, “Please
review my case and make an appropriate decision.”1
The letter referred to attached documents, including
patient recognition letters and letters of recommendations from
“various doctors, pharmacists, nurse practitioners and charge
nurses which accurately portray my hard work ethic, and respect
towards patients and coworkers.” These attachments were not
presented at trial, but Keshishyan testified the described
documents were meant to show she was a “good worker.”
Keshishyan called the Board of Supervisors the day after
she delivered the letter and was informed the letter was with the
1 The letter also describes what Keshishyan contended
occurred at the mediation, but the trial court did not admit these
portions of the letter into evidence based on the mediation
privilege.
9
board. Slaughter was upset Keshishyan had contacted the board,
and Keshishyan substituted in new counsel after their
relationship broke down.
Keshishyan acknowledged that, over a year after the
mediation, she applied for disability retirement benefits, which
was consistent with her plan to separate from County
employment. She testified she was “forced” to apply by the
mediator and Slaughter. Keshishyan withdrew her application
for benefits before it was considered.
3. Carranza
Carranza confirmed he was not present at the mediation.
He could not recall any details regarding a settlement agreement.
D. Trial Court Ruling
The trial court ruled in defendants’ favor. In its statement
of decision, the court found the agreement was a valid,
enforceable contract and that Keshishyan had no right to
withdraw from the agreement and “back out of the settlement”
before the Claims Board had an opportunity to approve the
agreement. The court rejected Keshishyan’s argument that the
agreement was not valid because Carranza was not at the
mediation and did not sign the agreement until after the Claims
Board approved the settlement terms. The court also rejected
Keshishyan’s argument that it was bound by Judge Nieto’s prior
orders denying defendants’ motions to enforce the agreement
under section 664.6. The court, on its own motion, concluded
reconsideration was warranted and vacated the prior orders.
The court entered a judgment dismissing the case, ordering
that defendants were entitled to specific performance of the
agreement and Keshishyan was to resign from County
employment after she received the $95,000 in settlement funds.
10
Keshishyan timely appealed from the judgment.
DISCUSSION
A. Standard of Review
“ ‘In reviewing a judgment based upon a statement of
decision following a bench trial, we review questions of law de
novo, and we review the trial court’s findings of fact for
substantial evidence.’ ” (State of California ex rel. Rapier v.
Encino Hospital Medical Center (2022) 87 Cal.App.5th 811, 828;
accord, Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150,
162.) “[F]indings of fact are liberally construed to support the
judgment and we consider the evidence in the light most
favorable to the prevailing party, drawing all reasonable
inferences in support of the findings.” (Ribakoff, at p. 162;
accord, Keading v. Keading (2021) 60 Cal.App.5th 1115, 1125.)
“A trial court’s determination of whether the parties
entered into a binding settlement for all or part of a case is
reviewed for ‘whether the court’s ruling is supported by
substantial evidence.’ ” (Eagle Fire & Water Restoration, Inc. v.
City of Dinuba (2024) 102 Cal.App.5th 448, 470 (Eagle Fire).)
B. Substantial Evidence Supports the Trial Court’s
Determination the Agreement Was an Enforceable Contract
Keshishyan challenges the judgment by arguing an
enforceable contract was never formed. She describes the
agreement as “only a proposal” and contends she revoked her
acceptance to that proposal before it was approved by the Claims
Board and signed by Carranza. As a result, Keshishyan asserts,
the agreement lacked mutual consent and was not enforceable
against her.
11
1. The agreement’s plain language and the parties’
conduct consistent with its terms demonstrates
mutual consent to be bound by the agreement
“ ‘A settlement agreement is a contract, and the legal
principles which apply to contracts generally apply to settlement
contracts.’ ” (Canaan Taiwanese Christian Church v. All World
Mission Ministries (2012) 211 Cal.App.4th 1115, 1123;
Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
810.) “Under California law, the basic requirements for an
enforceable contract are (1) parties capable of contracting, (2) the
consent of those parties, (3) a lawful object, and (4) adequate
consideration.” (Eagle Fire, supra, 102 Cal.App.5th at p. 468; see
Civ. Code, § 1550.) The parties’ consent must be free, mutual,
and communicated by each to the other. (Civ. Code, § 1565.)
Generally, consent is mutual only if “ ‘the parties all agree upon
the same thing in the same sense.’ ” (Sellers v. JustAnswer LLC
(2021) 73 Cal.App.5th 444, 460; see Civ. Code, § 1580.) “Mutual
consent is determined through an objective standard that
examines the reasonable meaning of the parties’ words and acts;
it is not determined through silent unexpressed intentions.”
(Eagle Fire, at p. 468; see Sellers, at p. 460 [“ ‘If there is no
evidence establishing a manifestation of assent to the “same
thing” by both parties, then there is no mutual consent to
contract and no contract formation.’ ”].) “The existence of mutual
consent is a question of fact.” (Eagle Fire, at p. 468.)
Substantial evidence supports the trial court’s finding that
both sides intended to be bound by the agreement upon its
signing at the mediation. In the agreement, the signing parties
made corresponding promises to “recommend this settlement to
the Claims Board” and “accept this settlement if it is approved by
12
the Claims Board” above their signatures. The agreement also
states the County’s “recommending said settlement to the …
Claims Board” constituted consideration for Keshishyan’s
promise to accept the settlement if it was approved by the Claims
Board. Thus, the plain language of the agreement shows
formation of a contract. (See Bleecher v. Conte (1981) 29 Cal.3d
345, 350 [“A bilateral contract is one in which there are mutual
promises given in consideration of each other.”]; accord, Juen v.
Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 979-980.)
Moreover, the parties’ actions consistent with the
agreement’s terms suggested there was mutual consent to form a
binding contract. Keshishyan’s then-counsel filed a notice of
settlement indicating the case had been settled with a conditional
settlement and negotiated the long-form settlement and release
with defendants’ counsel. Other such evidence includes
Keshishyan applying for disability retirement benefits, the
County reimbursing Keshishyan’s mediation fees, and the County
performing its duty to submit and recommend the settlement
terms to the Claims Board.
Keshishyan’s letter to the Board of Supervisors also
supported the conclusion the parties mutually intended to be
bound by the agreement’s terms. As the trial court pointed out,
in her letter, Keshishyan “did not state ... she revoked her
consent to the settlement agreement, that she wanted to back out
of the settlement, or that she wanted to continue to litigate the
case. Nor did she state that the Board should not consider
whether to approve the settlement agreement. Rather, she
expressly recognized that the Board would be reviewing the
settlement and attempted to persuade the members to allow her
to keep her job based on the evidence submitted with the letter
13
showing she was a good employee.” The letter was more
consistent with a plea to modify an already formed contract than
an attempt to revoke a mere offer to form a contract. Substantial
evidence thus supports the trial court’s determination that the
parties formed an enforceable contract based on their mutual
consent to be bound by the agreement reached at mediation.
Notwithstanding this evidence showing mutual consent,
Keshishyan argues she was still free to withdraw her consent to
the agreement before the Claims Board approved the settlement
terms. She contends the agreement’s conditional language
regarding Claims Board approval shows that approval was a
condition precedent, without which the agreement could have no
effect. In other words, she argues, Claims Board approval was
necessary to form an enforceable contract in the first instance.
We disagree.
A term in an agreement stating it is subject to a third
party’s approval does not necessarily deprive the agreement of all
force absent such approval. (See Frankel v. Board of Dental
Examiners (1996) 46 Cal.App.4th 534, 549 (Frankel); Jacobs v.
Freeman (1980) 104 Cal.App.3d 177, 190.) Frankel provides a
fitting comparison for the case at hand. There, a dentist entered
a stipulation to settle a disciplinary proceeding brought by the
executive director of the state Board of Dental Examiners.
(Frankel, at pp. 541-542.) The stipulation stated that “[s]hould
the Board of Dental Examiners, for any reason, fail or refuse to
adopt this stipulation, it shall be of no force or effect as to either
party.” (Id. at p. 542.) Before the board took any action, the
dentist sought to withdraw his consent to the stipulation. (Ibid.)
The board then adopted the stipulation. (Ibid.) The trial court
rejected the dentist’s subsequent argument that he had the right
14
to withdraw his consent because the stipulation stated it would
have no effect without board approval. (Id. at p. 543.)
The appellate court affirmed, holding that “implied in the
agreement is an obligation to submit the stipulation to the Board
for consideration and to give the Board a reasonable period of
time to act on it. [Citations.] The potential lack of approval by
the Board, which would have relieved the parties of their
obligations under the agreement but did not occur, is simply a
‘condition subsequent’ which ‘is not a valid basis for concluding
that the contract is not presently binding and effective.’
[Citation.] By impliedly agreeing to permit the Board to confer
and decide whether to approve or reject the settlement, Frankel
could not withdraw his assent to the stipulation before the Board
had a reasonable opportunity to act on it.” (Frankel, supra,
46 Cal.App.4th at p. 541.)
The same logic applies here. As discussed, the agreement
required the County to recommend the settlement to the Claims
Board. The parties’ consent to this requirement also impliedly
recognized they would provide the Claims Board with a
reasonable opportunity to consider the terms and decide whether
to approve or reject them. (See Frankel, supra, 46 Cal.App.4th at
pp. 546, 548 [“Since the stipulation and surrounding
correspondence are silent as to the time by which the Board must
act upon the stipulation after receiving it, the parties necessarily
intended the Board to have a reasonable time to do so.”].) Under
these circumstances, the condition of Claims Board approval of
the agreement is not, as Keshishyan suggests, a condition
precedent to the formation of a contract. Rather, it is a condition
subsequent triggering performance on the rest of the parties’
contractual obligations under the agreement’s terms. (See id. at
15
p. 550 [describing condition of board approval as a “condition
subsequent, i.e., a future event upon the happening of which [the
dentist’s agreements and obligations no longer would be binding
on him]; see also Jacobs v. Freeman, supra, 104 Cal.App.3d at
p. 190 [describing condition of board approval as a “condition
precedent to the seller’s duty to convey title to the land [pursuant
to the contract] rather than a condition precedent to the
formation of a contract”].) If that condition was not satisfied, the
parties would be relieved of those obligations; but its mere
existence did not prevent formation of a contract, nor did it allow
Keshishyan to freely withdraw her consent from a fully formed
contract.
In sum, the evidence at trial was sufficient to establish the
parties intended the agreement reached at mediation would bind
them to submit the settlement to the Claims Board and perform
the other obligations under the agreement if the Claims Board
approved the settlement terms. Because the agreement was
therefore a valid, enforceable contract, Keshishyan had no power
to unilaterally revoke her acceptance to or withdraw from the
agreement before the Claims Board had an opportunity to
consider the settlement terms.
2. Carranza’s signature was not necessary to the
agreement
Keshishyan also argues an enforceable settlement
agreement was not formed because Carranza did not sign the
agreement until a year after the mediation and only after
Keshishyan withdrew her acceptance to the agreement.
Keshishyan relies exclusively on Levy v. Superior Court (1995)
10 Cal.4th 578, overruled by statute as recognized in Greisman v.
FCA US, LLC (2024) 103 Cal.App.5th 1310 (Greisman), for its
16
holding (now abrogated) that where a party litigant did not
personally sign a settlement agreement, it is not enforceable
under section 664.6.2 (Levy, at p. 586.) However, while Judge
Nieto refused to enforce defendants’ first section 664.6 motion
because Carranza had not yet signed the agreement, section
664.6 did not apply to the subsequent proceedings on defendants’
cross-claim for breach of contract.
Section 664.6 “ ‘provide[s] a summary procedure for
specifically enforcing a settlement contract.’ ” (Greisman, supra,
103 Cal.App.5th at p. 1321.) Due to its summary nature, strict
compliance with the requirements of section 664.6, including its
requirement that the “parties” have signed the settlement
agreement, is required. (§ 664.6, subd. (a); see Mesa RHF
Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913,
917; Sully-Miller Contracting Co. v. Gledson/Cashman
Construction, Inc. (2002) 103 Cal.App.4th 30, 37-38.) But, as
Judge Nieto recognized, the expedited statutory procedure under
section 664.6 is “not an exclusive means to enforce a settlement”
and there are other available enforcement procedures, such as
defendants’ cross-claim for breach of the agreement. (See Levy,
supra, 10 Cal.4th at p. 586, fn. 5; see In re Marriage of Woolsey
(2013) 220 Cal.App.4th 881, 898 [“ ‘ “[t]he statutory procedure for
2 The Legislature has since “overturned Levy” by amending
section 664.6, effective January 1, 2021, to “ ‘explicitly grant[ ]
the authority to stipulate to settlements to attorneys, on behalf of
the parties they represent,’ to ‘streamline this process in order to
meet the goals of efficiency and economy.’ ” (W. Bradley Electric,
Inc. v. Mitchell Engineering (2024) 100 Cal.App.5th 1, 18, fn. 7;
see Greisman, supra, 103 Cal.App.5th at pp. 1323-1326; § 664.6
(Stats. 2020, ch. 290, § 1).)
17
enforcing settlement agreements under section 664.6 is not
exclusive. It is merely an expeditious, valid alternative
statutorily created” ’ ”].) Outside the context of a motion to
enforce under section 646.6, the statute’s strict requirements may
not be applicable.
Keshishyan provides no reasoning or authority to suggest
that, without Carranza’s signature, the agreement was
unenforceable for purposes of defendants’ breach of contract cross-
claim. Thus, she has forfeited the argument. (County of
Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861 [court may
disregard and treat as forfeited points not supported by legal
argument and authority]; accord, Hernandez v. First Student, Inc.
(2019) 37 Cal.App.5th 270, 277.) Keshishyan’s argument fails on
the merits in any event, because the enforceability of the
agreement does not depend on Carranza’s signature.
Generally, the failure of parties or their authorized
representatives to sign or otherwise assent to a settlement
agreement would affect its enforceability. Such manifestation of
assent to a contract is typically necessary to “ ‘protect[] parties
from impairment of their substantial rights without their
knowledge and consent.’ ” (Williams v. Saunders (1997)
55 Cal.App.4th 1158, 1163.) However, as defendants note, the
agreement did not require Carranza to pay any money toward the
settlement, to take any affirmative action, to give up anything, or
to release any claims he had. While Carranza was nominally a
party to the agreement, he was merely a beneficiary under its
terms. The agreement provided the County would pay
Keshishyan $95,000 “on behalf of itself and all other named and
unnamed [defendants]” in return for, among other things, a
dismissal of the action with prejudice and full and complete
18
release by Keshishyan of “all defendant(s) from known and
unknown claims.” As defendants argue, “[a]ll parties with the
duty to perform signed the contract”; the agreement’s
enforceability thus did not depend on Carranza’s signature.
The court in Provost v. Regents of University of California
(2011) 201 Cal.App.4th 1289, reached a similar conclusion, even
though that case involved a motion to enforce a settlement
agreement under section 664.6. In that case, the plaintiff
contended that even if the stipulated settlement was enforceable
against the plaintiff by the institutional defendant that had
signed it, “the individual defendants may not enforce it because
they did not sign the document.” (Id. at p. 1298.) However, the
appellate court held the individual defendants’ signatures were
not required because they were “third party beneficiaries of the
stipulated settlement.” (Ibid.) The court concluded “the
language of the stipulated settlement demonstrates it was made
for the benefit of the individual defendants, ‘[t]he case is settled
as to all claims ...’ and the ‘entire action [is] dismissed [with]
prejudice.’ … Performance of those acts disposes of the case
against all parties, even without the signatures of the individual
defendants on the stipulated settlement.” (Ibid.) Likewise, in
the instant case, mutual performance of the terms of the
agreement would dispose of the entire case as to all parties,
including Carranza, whether or not he signed the agreement. His
signature was not necessary to make it enforceable.
C. The Trial Court Did Not Err in Excluding Mediation
Evidence of Duress and Coercion
Keshishyan next argues the trial court erred in excluding
evidence she sought to introduce at trial to show she was
pressured and coerced into signing the agreement at the
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mediation. The court ruled such evidence was inadmissible
based on the mediation privilege set forth in Evidence Code
section 1119.
Evidence Code section 1119 provides, in relevant part, “No
evidence of anything said or any admission made for the purpose
of, in the course of, or pursuant to, a mediation or a mediation
consultation is admissible or subject to discovery, and disclosure
of the evidence shall not be compelled,” and further, “[a]ll
communications, negotiations, or settlement discussions by and
between participants in the course of a mediation or a mediation
consultation shall remain confidential.” (Evid. Code, § 1119,
subds. (a), (c).) “[T]he mediation confidentiality provisions of the
Evidence Code were enacted to encourage mediation by
permitting the parties to frankly exchange views, without fear
that disclosures might be used against them in later
proceedings.” (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194.) To
carry out that purpose, the statutory scheme (including Evidence
Code section 1119) “unqualifiedly bars disclosure of
communications made during mediation absent an express
statutory exception.” (Foxgate Homeowners’ Assn. v. Bramalea
California, Inc. (2001) 26 Cal.4th 1, 15.)
Keshishyan contends her testimony of duress and coercion
should have been admitted under the exception in Evidence Code
section 1123, subdivision (d). That exception is for “[a] written
settlement agreement prepared in the course of, or pursuant to, a
mediation ... if the agreement is signed by the settling parties”
and “the agreement is used to show fraud, duress, or illegality
that is relevant to an issue in dispute.” (Evid. Code, § 1123, subd.
(d). italics added.) In other words, the statute allows for
admission of a written agreement to show duress. It does not, as
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Keshishyan suggests, provide unfettered license for the
admission of any evidence related to purported duress, such as
her excluded testimony.
Keshishyan also argues excluding evidence of duress and
coercion “subverts” the purposes of mediation by insulating
unlawful agreements from judicial scrutiny. But policy concerns
of this kind are to be considered and resolved by the Legislature,
not this court. (See Foxgate Homeowners’ Assn. v. Bramalea
California, Inc., supra, 26 Cal.4th at p. 17.) In Provost v. Regents
of University of California, supra, 201 Cal.App.4th at pages 1302-
1303, the plaintiff similarly argued evidence supporting his claim
of duress and coercion in signing a settlement at mediation must
be admitted because “the ‘conduct’ was so egregious the
confidentiality requirement could not ‘shield[ ]’ it.” The court
rejected the argument, noting that, “in banning any court-created
exceptions to the statutory confidentiality protections, the
Supreme Court emphasized that the Legislature had weighed the
possibility of some unfair results against the strong public policy
supporting mediation and come down on the side of mediation.”
(Id. at p. 1303; see also Cassel v. Superior Court (2011) 51 Cal.4th
113, 136 [“The Legislature decided that the encouragement of
mediation to resolve disputes requires broad protection for the
confidentiality of communications exchanged in relation to that
process, even where this protection may sometimes result in the
unavailability of valuable civil evidence.”].) We reach the same
conclusion here.
D. The Trial Court Did Not Err in Enforcing the Agreement’s
Resignation Requirement
Keshishyan argues that even if the agreement was
otherwise enforceable, the court could not enforce the
21
requirement for her to resign without violating the Silenced No
More Act as it amended Government Code section 12964.5 (Sen.
Bill No. 331 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 638, § 2)) and
Code of Civil Procedure section 1002.5. She contends
enforcement of the resignation requirement violated these
statutes because it “forc[ed] a harassment victim to resign in
exchange for monetary settlement.”
Keshishyan did not raise this argument at trial. She
concedes she first raised the argument in her objections to the
court’s proposed judgment. As a result, Keshishyan forfeited the
argument. (Insurance Co. of State of Pennsylvania v. American
Safety Indemnity Co. (2019) 32 Cal.App.5th 898, 923 [theory
raised for first time in objections to proposed judgment does not
preserve the issue for appeal]; see also Colony Ins. Co. v.
Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750 [“Because
Colony failed to raise the issue of waiver/estoppel until its post-
trial objections to the statement of decision, it forfeited the
argument”].)
But even if we exercised our discretion to consider the
forfeited argument, we would find no error. As amended,
Government Code section 12964.5 makes it an unlawful
employment practice “for an employer, in exchange for a raise or
bonus, or as a condition of employment or continued
employment,” to require an employee to sign “a release of a claim
or right [under FEHA]” or “a nondisparagement agreement or
other document to the extent it has the purpose or effect of
denying the employee the right to disclose information about
unlawful acts in the workplace.” (Gov. Code, § 12964.5, subd.
(a)(1)(A)(i), (a)(1)(B)(i).) The statute also makes it an unlawful
employment practice “for an employer or former employer to
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include in any agreement related to an employee’s separation
from employment any provision that prohibits the disclosure of
information about unlawful acts in the workplace.” (Id.,
§ 12964.5, subd. (b)(1)(A).)3 Notwithstanding these protections,
the statute provides it “does not apply to a negotiated settlement
agreement to resolve an underlying claim under [FEHA] that has
been filed by an employee in court.” (§ 12964.5, subd. (d)(1); see
id., § 12964.5, subd. (d)(2) [“ ‘negotiated’ means that the
agreement is voluntary, deliberate, and informed, the agreement
provides consideration of value to the employee, and that the
employee is given notice and an opportunity to retain an attorney
or is represented by an attorney”].)
Keshishyan does not even attempt to show how the
agreement violates any of the unlawful employment practice
provisions under Government Code section 12964.5. Nor does
she show the agreement here was anything other than a
negotiated settlement agreement for which those provisions do
not apply.
Code of Civil Procedure section 1002.5 is also inapplicable.
That statute generally renders void any provision in an
agreement to settle an employment dispute that is entered into
on or after January 1, 2020, that “prohibit[s], prevent[s], or
otherwise restrict[s] a settling party that is an aggrieved person
from obtaining future employment with the employer against
3 Keshishyan misquotes Government Code section 12964.5,
subdivision (b)(1), as stating: “An employer shall not require an
employee to waive the right to obtain employment, or to resign
from, terminate, or otherwise limit their current employment, as
a condition of entering into a settlement agreement related to a
claim of harassment or discrimination.”
23
which the aggrieved person has filed a claim.” (Code Civ. Proc.,
§ 1002.5, subd. (a).) Although the agreement included a provision
that Keshishyan would not reapply or be rehired for County
employment, the agreement was entered before January 1, 2020.
Because Code of Civil Procedure section 1002.5 states it applies
to settlement agreements entered on or after January 1, 2020, it
does not apply here.
E. The Trial Court Was Not Bound by the Denials of the
Motions To Enforce the Agreement Under Section 664.6
Finally, Keshishyan argues the trial court judge (Judge
Escalante) erred in reconsidering and reversing Judge Nieto’s
prior denials of defendants’ motions to enforce the agreement.
Keshishyan asserts the agreement’s enforceability was a “settled”
issue and contends Judge Escalante “disregarded [the prior]
rulings without identifying new facts or law” and in doing so
“undermine[d] consistency and due process.”
Keshishyan’s suggestions that the issue of the agreement’s
enforceability was “settled” and could not be relitigated without
new facts or law are incorrect. The orders denying defendants’
motions to enforce under section 664.6 were interim, non-final
rulings. (See Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293
[order denying § 664.6 motion is an interlocutory ruling because
“denial of the motion, rather than finally disposing of the action,
expressly leaves it open”]; accord, Walton v. Mueller (2009)
180 Cal.App.4th 161, 167.) “The trial court’s determination the
statutory prerequisites [under § 664.6] were not satisfied is not
dispositive as to whether a contract in fact existed.” (Harris v.
Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 306, italics
added; accord, Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110,
1122.) Judge Nieto recognized as much in denying defendants’
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first motion to enforce, explaining her determination that
defendants had not complied with the “strict requirements” for
use of the summary procedure found in section 664.6 did not
necessarily render the agreement “unenforceable” or preclude
defendants from pursuing “other conventional enforcement
procedures.”
In any event, “a trial court has inherent power to
reconsider an interim ruling on its own motion.” (Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233, 1248; see La Francois v. Goel (2005) 35 Cal.4th 1094, 1108
[“If a court believes one of its prior interim orders was erroneous,
it should be able to correct that error no matter how it came to
acquire that belief.”].) As a general rule, a trial court judge
cannot overturn the order of another trial court judge. (Paul
Blanco’s Good Car Co. Auto Group v. Superior Court (2020)
56 Cal.App.5th 86, 99 (Paul Blanco’s); accord, Ziller Electronics
Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)
This rule supports the orderly administration of justice, the
integrity of our courts, and scarce judicial resources. (Paul
Blanco’s, at pp. 99-100.) However, an exception to the general
rule exists where the record shows the original trial court judge is
no longer “available.” (Ibid.; see Ziller Electronics Lab GmbH, at
p. 1232.) Such unavailability may be established where the
original judge has retired. (Paul Blanco’s, at p. 100;
International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th
784, 786, fn. 1.)
The record shows Judge Nieto retired from the bench in
June 2021, after which Judge Escalante inherited this case.
Thus, Judge Nieto was not available to consider the issue of the
agreement’s enforceability when it again arose during the bench
25
trial on defendants’ cross-complaint in January 2023. Instead,
Judge Escalante could properly rule on the issue.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their
costs on appeal.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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