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Glenn Provost v. Regents of the University of California et al

December 14, 2011

GLENN PROVOST, PLAINTIFF AND APPELLANT,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 05CC09542) Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Requests for judicial notice.

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

Judgment affirmed. Appellant's request for judicial notice denied. Respondents' request granted.

Plaintiff Glenn Provost appeals from a judgment entered pursuant to a stipulation for settlement reached at mediation with defendant Regents of the University of California (Regents). He asserts the stipulation was not binding for a host of reasons, including that it was not properly executed by Regents or executed by defendants Peter H. Breen and Cindy Anderson at all, conditions precedent to its finality were not satisfied, it did not contain all material terms, it was obtained by duress and coercion, evidence on which he might have relied in considering whether to settle was fraudulently concealed, and was not enforceable because protected by mediation confidentiality. None of these arguments persuade and we affirm the judgment.

We grant Regents' request to take judicial notice of its Bylaw 21. (Kashmiri v. Regents of the University of California (2007) 156 Cal.App.4th 809, 822, fn. 7.) We deny plaintiff's request for judicial notice. It was not filed with the opening brief but with an amended reply brief. We rejected the original reply brief because it exceeded the word limitation, and we reminded plaintiff he could not raise new issues or "rewrite his opening brief." His requested documents go to new issues, should have been included with the opening brief to give defendants an opportunity to respond to them, are irrelevant, or are beyond the scope of the issues presented in the appeal.

FACTS AND PROCEDURAL HISTORY

Because this case arises out of a procedural decision the underlying facts are not generally relevant. Suffice it to say that plaintiff, who had been employed by Regents as an anesthesiologist at the University of California Irvine Medical Center, filed a complaint under the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.) against Regents, Breen, and Anderson, the latter two physicians at the medical center. Setting out several causes of action, the complaint primarily pleaded plaintiff was wrongfully terminated after he reported alleged illegal conduct by defendants. Regents filed a cross-complaint containing several causes of action, including breach of contract, intentional and negligent misrepresentation, and violation of the False Claims Act (Gov. Code, § 12650 et seq.), which alleged plaintiff failed to pay Regents sums in excess of $100,000 earned from outside employment.

The parties attended mediation in 2007 and again in 2008. Several days after the last session in April 2008 they resumed the process, which resulted in a stipulation to settle the matter (stipulated settlement), including payment of $475,000 to plaintiff and a dismissal of the complaint and cross-complaint with prejudice. The stipulated settlement incorporated the "[p]rocessing terms" of a letter of the same date prepared by defendants' counsel, which generally sets out the logistics to complete the settlement. The stipulated settlement also stated it was "[a]ll subject to approval of Regents." The stipulated settlement was signed by four people: plaintiff, one of his three lawyers, one of Regents' in-house counsel, Carolyn Yee, who had been appointed as the party representative and authorized to sign on behalf of Regents, and defendants' lawyer, Sandra McDonough. Yee had attended all of the mediation sessions as the party representative for Regents. Approximately one week later plaintiff's counsel filed a "Notice of Settlement of Entire Case." (Capitalization omitted.)

As per the stipulated settlement, defendants' counsel prepared a Settlement Agreement and Release (final settlement agreement), making the minor changes plaintiff's lawyer requested. In September Regents approved the stipulated settlement and plaintiff's counsel was also advised.

In the meantime, in July plaintiff personally sent a letter to the trial judge, stating he had "just become aware of certain 'irregularities' that occurred prior to and during the mediation," i.e., threats by defendants, which were "upheld" by his own lawyer, to file criminal charges. He mentioned he had spoken to the State Bar and would like time to get "an independent legal opinion" on those issues "prior to further any processing" of the action. The trial judge replied to plaintiff, with copies to both parties' lawyers, advising he could not communicate with plaintiff personally and forwarded a copy of plaintiff's letter to the lawyers.

At a voluntary settlement conference in October, after Regents had approved the stipulated settlement, plaintiff told the court he would not sign the final settlement agreement. This was the first time defendants "received . . . definitive confirmation" plaintiff was not willing to execute the document. Plaintiff reiterated his unwillingness to sign at a subsequent mandatory settlement conference.

Regents then filed a motion to enforce the stipulated settlement under Code of Civil Procedure section 664.6 (all further statutory references are to this code unless otherwise stated), which the court denied on the ground Regents had not signed the stipulated settlement because Yee was their in-house lawyer and not a party.

Regents then filed a petition for writ of mandate in this court arguing that Yee, as its duly authorized representative, could sign the settlement and signature by an officer was not required. We issued an alternative writ requiring the order that denied the motion be vacated and the trial court to decide the motion "on the other issues raised" or show cause why the original order was correct.

At the rehearing, the trial court granted the motion, after which a judgment, stating all claims were released, was entered. This appeal is from that judgment.

DISCUSSION

1. Introduction

Defendants argue the opening brief should be stricken, justifiably taking exception to plaintiff's failure to provide record references in violation of California Rules of Court, rule 8.204(a)(1)(C). Although we decline to strike the brief, this should not be interpreted as approval of plaintiff's violation of the appellate rules. In addition, we will generally consider only those facts and arguments supported by adequate citations to the record.

Further, some of plaintiff's arguments are not confined to the point raised in the heading, also a violation of court rules. (Cal. Rules of Court, rule 8.204(a)(1)(B).) And many of the same arguments are repeated throughout the brief under various headings. Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Moreover, once we have discussed and disposed of an issue it will not necessarily be considered again in connection with other claims. In addition, we will not address arguments raised for the first time in the reply brief (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766) or documents in plaintiff's "Reply Appendix" filed with his reply brief because defendants lacked the opportunity to respond.

2. Defendants' Signatures on the Stipulated Settlement

a. Regents' Signature

Section 664.6 declares a settlement may be enforced by motion if the "writing [is] signed by the parties." (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) Relying on Levy and Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, plaintiff argues the stipulated settlement is unenforceable because it was never signed by Regents, asserting Yee's signature was ineffective.

In Levy, lawyers for the two individual parties executed a writing settling the case. The plaintiff then refused to sign the formal settlement document and the defendant filed a motion under section 664.6 to enforce the settlement. The Supreme Court determined that, although the word "is reasonably susceptible to more than one interpretation" (Levy v. Superior Court, supra, 10 Cal.4th at p. 582), under the section, "'parties'" ...


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