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Susan L. Laswell, As Trustee, Etc., Et. Al v. Mary Ellen Laswell

March 9, 2012

SUSAN L. LASWELL, AS TRUSTEE, ETC., ET. AL., PLAINTIFFS AND RESPONDENTS,
v.
MARY ELLEN LASWELL, DEFENDANT AND APPELLANT.



(Super. Ct. No. PR39632)

The opinion of the court was delivered by: Robie , J.

Laswell v. Laswell

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this trust proceeding, the trustee (plaintiff Susan L. Laswell) and a beneficiary (defendant Mary Ellen Laswell) entered into a settlement orally before the court, agreeing (among other things) that each party was "waiv[ing] all known and unknown claims against each other, the Trustee in her trustee capacity, and the Trust." When Mary Ellen*fn1 refused to sign a proposed judgment prepared by Susan's attorney that contained additional waiver language, Susan moved for entry of judgment pursuant to Code of Civil Procedure section 664.6 (section 664.6).*fn2 The trial court entered the judgment Susan proposed with the additional waiver language.

On Mary Ellen's appeal from that judgment, we conclude the trial court erred because on motion under section 664.6 the court cannot enter a judgment containing terms other than those on which the parties agreed. Here, the terms of the waiver to which the parties stipulated on the record were simple and straightforward, and Mary Ellen had a right to have that waiver included in any resulting judgment. Accordingly, we will reverse and remand with directions to the trial court to enter a judgment that contains the waiver language to which the parties agreed.

FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Virginia Laswell executed a living trust. The trust instrument named her daughter Susan as the successor trustee upon Virginia's death or incapacity and provided for the equal distribution of the trust assets to all three of Virginia's daughters -- Lorraine Buchla, Mary Ellen, and Susan -- upon Virginia's death.

According to the petition that commenced this proceeding, Susan began serving as trustee in early 2009 due to Virginia's incapacity. Virginia died sometime thereafter.

In July 2010, acting in her capacity as trustee, Susan filed a petition for instructions under Probate Code section 17200, seeking relief against Mary Ellen relating to the trust. Mary Ellen opposed the petition. Eventually, the matter was set for trial in March 2011. On the day of trial, the parties settled. Susan's attorney recited the terms of the settlement on the record. On the issue of the waiver of claims, Susan's attorney stated as follows: "Each of the parties agrees to waive all known and unknown claims against each other, the Trustee in her trustee capacity, and the Trust." When Mary Ellen's attorney pointed out there were to be "[n]o surcharges," Susan's attorney responded, "Yes, thank you. Mr. Dreifort points out that there will be a waiver of all of the surcharge claims by the Trust against Mary Ellen. And there will be a reciprocal waiver of any potential surcharge claims by Mary Ellen against her sisters Lorraine and Susan."

The day after the settlement, Susan's attorney sent a proposed "Judgment by Stipulation" to Mary Ellen's attorney for Mary Ellen to sign. The proposed judgment included the following provision relating to the waiver of claims:

"9. This Stipulated Judgment includes a Waiver and Release of all claims, both known and unknown, for the consideration of this Judgment and the payments provided herein, each of the VIRGINIA L. LASWELL 1991 TRUST DATED 10/18/91, SUSAN, LORRAINE, and MARY ELLEN, on their behalf and on behalf [of] all heirs, successors and assigns, do hereby waive and give up any and all claims, causes of action or right to commence proceedings, of any nature or kind, against each other individually or against the Trust or the Trustee of the Trust related to or arising directly or indirectly from any actions related to the administration of the Trust, the care of VIRGINIA LASWELL, the affairs of VIRGINIA LASWELL, or of any of SUSAN, LORRAINE or MARY ELLEN, in regard to properties, expenses, costs or income receivable by VIRGINIA LASWELL or the VIRGINIA L. LASWELL 1991 TRUST. This Waiver includes both known and unknown claims, and each of SUSAN, LORRAINE, MARY ELLEN and the Trust and Trustee, on behalf of the Trust, do hereby waive the benefits of section 1542 of the Civil Code of the State of California . . . ." After setting forth the language of that statute, the judgment recited, "Each of the parties does waive, give up claims which they may not presently be aware of."

Mary Ellen refused to sign the proposed judgment unless certain changes were made, including changes to the waiver provision. Susan's attorney refused to change the waiver provision. Mary Ellen's attorney reviewed the transcript of the settlement on the record, noted that the proposed judgment contained "a much broader waiver," and expressed his ...


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