B. Was Ms. Olam unduly pressured to sign the MOU?
There is an additional, independently sufficient basis for the
court's decision to grant defendants' Motion to Enforce the
Plaintiff has failed completely to satisfy the second,
essential element of the test for undue influence: she has not
proved that she was subjected by anyone to "undue pressure."
In the factual setting before us, there are three
theoretically possible sources of undue pressure: defendants
and/or their counsel, the mediator, and plaintiff's attorney —
1. Mr. Herman
Plaintiff has never contended that Mr. Herman was the source of
undue pressure. Nor is it clear that relief under California
Civil Code §§ 1689(b)(1) and 1575 would be appropriate even if a
party proved that a mediator had subjected her to undue pressure.
2. Ms. Voisenat
Plaintiff vaguely intimated at some point that her own lawyer
at the time, Ms. Voisenat, somehow pushed or "urged" her to
settle. The court rejects any attempt to expand California Civil
Code §§ 1689(b)(1) and 1575 to include as a source of "undue
influence" the complaining party's own lawyer. Plaintiff has set
forth no law that would support extension of the doctrine of
undue influence in this respect. Expanding the doctrine in this
way would encourage clients and counsel to manufacture bases for
trying to avoid commitments otherwise fully enforceable. The law
offers alternative avenues of recourse to clients who are in fact
abused by their own lawyers.
We hasten to add that the evidence in the record falls woefully
short of supporting a finding that Ms. Voisenat pressured Ms.
Olam to do anything. According to Ms. Olam, she had very little
contact with Ms. Voisenat all day. Surely a half nod from a
lawyer (as Ms. Olam says she saw from Ms. Voisenat just before
signing the MOU) cannot constitute undue pressure. From all the
evidence, we find that Ms. Voisenat was the secondary player in
these negotiations, which were in fact dominated by her client.
There is absolutely no basis for a finding that any action by Ms.
Voisenat remotely overbore plaintiff's will.
3. Defendants and Their Counsel
Similarly, there is no evidence that could support a finding
that the defendants or their lawyer put any pressure on Ms. Olam
during the mediation. As the plaintiff herself testified, there
was essentially no interaction and no communication between her
and defendants (or their lawyer) during the mediation.
Plaintiff emphasized that at the end of the session (roughly
12:00-1:00 a.m.), when she signed the MOU, the participants were
"hurried" and that she perceived this hustle as pressure to sign
the paper placed before her.
Mr. Herman agreed that at the end of the session "there was an
atmosphere in both rooms to get moving." He also acknowledged
that this atmosphere is "less than the ideal way to sign
documents." But he insisted that no one urged plaintiff to "hurry
up," that she appeared to read the MOU, that he waited until she
indicated that she was ready to sign the MOU before he went to
retrieve the copy that the defendants had signed (so all
signatures would be on the same document).
In sum, there is no evidence that plaintiff was subjected to
anything remotely close to undue pressure.*fn67
Because plaintiff has failed to prove either of the necessary
elements of undue influence, and because she has established no
other grounds to escape the contract, she signed on September 10,
1998, the court GRANTS defendants' Motion to Enforce the
settlement contract that is memorialized in the MOU.
Mr. Herman's August 23, 1999 testimony is UNSEALED.
On Wednesday, October 13, 1999 at 4:00 p.m., the parties
shall appear by telephone for a status conference — prepared to
discuss the appropriate date by which Ms. Olam must vacate the
Naples Property. Counsel for plaintiff must initiate the
conference call and, with both parties on the line, must call the
court at (510) 637-3326.
IT IS SO ORDERED.