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Any Attorney or Party
Any Street
Any Town, CA 55555
714-555-5555
Any Attorney or Party
Superior Court of the State of California
For the County of _________________
Any Plaintiff,
Plaintiff,
vs.
Any Defendants, and DOES 1-5, inclsive,
Defendants.
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Case "o.
OPPOSITION TO MOTION TO ENFORCE
SETTLEMENT AGREEMENT;
MEMORANDM OF POINTS AND
AT!ORITIES; DECLARATION OF __________"
E#!I$ITS
DATE%
TIME%
DEPT%
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- 1 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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&e sure to remove this notice and all other notices before using
this document.
_____________________________________ herein submits their Opposition to the motion
to enforce settlement agreement filed by ______________ on the grounds that (1) the settlement
agreement is not valid as the parties did not agree to all the material terms; (2) the settlement
agreement was not signed by all the parties nor was it made orally before the court, thus the
settlement agreement does not comply with Code of Civil rocedure section !!"#!, and $) the
dismissal with pre%udice of the lawsuit by the moving party on ______ has deprived this Court of
sub%ect matter %urisdiction#
&he Opposition shall be based on this Opposition, the attached 'emorandum of oints and
(uthorities, the declaration of __________ and )*hibits attached thereto, on the complete files and
records of this action, and on such other oral and+or documentary evidence as may be presented at the
hearing on the 'otion#
,ated________________ _______________________________________________
(-. (&&O/-). O/ (/&.

&e sure to modify these paragraphs to suit your individual
situation. $o '(T )ust use the wording here unless it definitely applies
to your particular situation. Remember that *(+R (%%(,-T-('
.+,T &E ,ER/E$ 0'$ F-#E$ 0T #E0,T '-'E 123 C(+RT $0*,
&EF(RE T4E 4E0R-'5. Court days means .onday through
Friday6 except for Court holidays. *ou should serve your opposition by
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OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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personal delivery or overnight mail. ,ee Code of Civil %rocedure
,ection 788" for more details.
- 3 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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.E.(R0'$+. (F %(-'T, 0'$ 0+T4(R-T-E,
-.
,T0TE.E'T (F F0CT,
&his case arises from #-,T C0+,E, (F0CT-(' (F C(.%#0-'T# laintiff filed suit
against ,efendant____________ on or about __________# 0ee laintiff1s Complaint on file with the
Court#
__________ filed their motion to enforce settlement agreement contending that the settlement
agreement should be enforced pursuant to Code of Civil rocedure 2 !!"#!#
__________ opposes the motion and contends that the motion should be denied on the
grounds that (1) the settlement agreement is not valid as the parties did not agree to all the material
terms; (2) the settlement agreement was not signed by all the parties nor was it made orally before the
court, thus the settlement agreement does not comply with Code of Civil rocedure section !!", and
$) the dismissal with pre%udice of the lawsuit by the moving party on ______has deprived this Court
of sub%ect matter %urisdiction#
--.
0R5+.E'T
0. T4E ,ETT#E.E'T 05REE.E'T -, '(T &-'$-'5 0, T4E %0RT-E, $-$
'(T 05REE (' 0## T4E .0TER-0# TER.,
_______________ contends that the settlement agreement is not binding as the parties did not
agree on all the material terms resulting from a lac3 of mutual assent in that #-,T 4ERE -'
$ET0-# T4E F0CT, ,+%%(RT-'5 *(+R C('TE'T-(' T40T T4ERE 90, 0 #0C:
(F .+T+0# 0,,E'T#
- 4 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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( settlement agreement is not valid and binding unless the parties agreed to all the material
terms of the settlement# Hines v.Lukes (2445) 1!6 Cal#(pp#"th 116", 1152#
70ection !!"#! creates 8 a summary procedure for specifically enforcing certain types of
settlement agreements by converting them into %udgments#9 Weddington Productions, Inc. v. Flick
(1::5) !4 Cal#(pp#"th 6:$, 6:6 (;eddington)#
<nder section !!"#!, the trial court may enforce a settlement agreement if it is valid and
binding and memoriali=ed in one of the ways set out in the statute# ;eddington, supra, !4
Cal#(pp#"th at p# 6:6#
7( settlement agreement is a contract, and the legal principles which apply to contracts
generally apply to settlement contracts#9 (;eddington, supra, !4 Cal#(pp#"th at p# 514#) ( contract
re>uires mutual assent# (?d# at p# 511#) 'utual assent re>uires that the parties agree upon the same
thing in the same sense# 7@&he e*istence of mutual consent is determined by ob%ective rather than
sub%ective criteria, the test being what the outward manifestations of consent would lead a reasonable
person to believe#1 ACitation#B9 (?bid#)
Cailure to agree on material terms will, of course, prevent contract formation Bustamante v.
Intuit, (244!) 1"1 Cal# (pp# 1::, 24:# ;ithout a binding agreement to settle, there can be no entry of
%udgment under section !!"#!#
&he lac3 of mutual assent renders the settlement agreement invalid due to a lac3 of contract
formation#
.odify the wording here to fit your particular situation. $o '(T
)ust use the wording in this paragraph unless it definitely applies to
your situation.
- 5 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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&. T4E ,ETT#E.E'T 05REE.E'T -, '(T E'F(RCE0&#E 0, -T 90,
'(T ,-5'E$ &* 0## T4E %0RT-E, 0'$ T4E ,ETT#E.E'T 05REE.E'T $(E, '(T
C(.%#* 9-T4 C($E (F C-/-# %R(CE$+RE ,ECT-(' ;;<.; 0, -T 90, '(T .0$E
(R0##* &EF(RE T4E C(+RT
&he settlement agreement is not enforceable as it was not signed by all of the parties in that
#-,T 4ERE T4E F0CT, ,+%%(RT-'5 *(+R C('TE'T-(' ,+C4 0, T4E
,-5'0T+RE (F 0 %0RT* T( T4E 05REEE.E'T6 '0.E#* ======== -, .-,,-'5#
(dditionally, the settlement agreement does not comply with Code of Civil rocedure 2 !!"#!
in that it was not made orally before the Court#
( written settlement agreement is not enforceable under section !!"#! unless it is signed by
all of the parties to the agreement, not merely the parties against whom the agreement is sought to be
enforced# Harris v. Rudin, Richman & Appel (1:::) 6" Cal#(pp#"th 2::, $4"D$4! (letter reciting
settlement terms held not enforceable under 2 !!"#! because it was not signed by all parties to the
agreement)#
(side from the signed writing re>uirement, the writing must embody an enforceable contract
between the partiesE ( settlement agreement is a contract, and the legal principles which apply to
contracts generally apply to settlement contracts# ull!"#iller $ontracting $o. v. %ledson&$ashman
$onstruction, Inc. (2442) 14$ Cal#(pp#"th $4, $FD$! (0ullyD'iller)# Gecause of its summary nature,
strict compliance with the re>uirements of section !!"#! is prere>uisite to invo3ing the power of the
court to impose a settlement agreement# (?d# at p# $6#)
&he California 0upreme Court has stated that the statutory re>uirement of the settlement
agreement being Hsigned by the partiesH means what it saysE &he agreement must be e*ecuted by the
litigants themselves, not merely by their attorneys# Lev! v. uperior $ourt, (1::F) 14 Cal# "th F65,
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OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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F5"D5F# &he court reasonedE HAGBecause the settlement of a lawsuit is a decision to end the litigation,
it obviously implicates a substantial right of the litigants themselves#H (Lev!, supra 14 Cal# "th at F5"#
0ince the Ievy decision, courts have refused to enforce settlement agreements that were
signed by a person acting on a partyJs behalf, such as a spouse or other agent# ee %auss v. %AF
$orp., (2442) 14$ Cal# (pp# "th 1114, 1116D15; 'lkenave v. (ia )olce Homeo*ners Assn., (244!)
1"2 Cal# (pp# "th 11:$, 11:5; Williams v. aunders, (1::6) FF Cal# (pp# "th 11F5, 11!2D!$#
0ection !!"#! re>uires the signatures of all parties, not %ust those against whom enforcement
of the settlement agreement is sought Harris v. Rudin, Richman & Appel, (1:::) 6" Cal# (pp# "th
2::, $4"D4!# (nd the settlement documents themselves must bear the re>uired signatures# (0ee
%auss, 14$ Cal# (pp# "th at 1115; ull!"#iller $ontracting $o. v. %ledson&$ashman $onstruction
Inc., supra, 14$ Cal# (pp# "th at $6#
.odify the wording here to fit your particular situation. $o '(T
)ust use the wording in this paragraph unless it definitely applies to
your situation.
C. T4E .(T-(' .+,T &E $E'-E$ 0, T4E $-,.-,,0# 9-T4 %RE>+$-CE
(F T4E #09,+-T 40, $E%R-/E$ T4-, C(+RT (F ,+&>ECT .0TTER
>+R-,$-CT-('
___________ contends that the motion must be denied as the fact that _______ filed a
dismissal with pre%udice of the lawsuit has deprived this Court of sub%ect matter %urisdiction#
( dismissal terminates an action pursuant to Code of Civil rocedure 2 F51# ( superior court
thereafter has no sub%ect matter %urisdiction to grant relief other than costs and fees as appropriate#
- 7 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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Harris v. Billings (1::$) 1! Cal#(pp#"th 1$:!, 1"4F (Karris); 'gl! v. uperior $ourt (1:64) !
Cal#(pp#$d "6!, "5$#
&he settlement language purporting to vest the trial court with retained %urisdiction after the
dismissal was a nullityE 0ub%ect matter %urisdiction cannot be conferred by consent, waiver or
estoppel# Housing %roup v. +nited ,at. Ins. $o. (2441) :4 Cal#(pp#"th 114!, 111$ (parties sought
enforcement in court where no action filed) (Kousing Lroup); 2 ;it3in, 0ummary of Cal# Iaw ("th
ed# 1::!) Murisdiction, 2 12, pp# FF!DFF5#
?n (ie-o Bancorp, Inc. v. Wood (1:5:) 216 Cal#(pp#$d 244, 24F as in this case, the parties to a
pending lawsuit reached a settlement, pursuant to which the case was dismissed with pre%udice# Iater
one party filed a new action alleging breach of the settlement, and moved for enforcement under
section !!"#!# &he trial court deemed this motion to have been made under the 7old action9 and
granted the motion for an in%unction and other relief# (ie-o Bancorp, supra, at p# 24"#) &he appellate
court reversedE 7On e*ecution of the settlement agreement, the old action was voluntarily dismissed
by the parties# (n action which is voluntarily dismissed in its entirety is no longer pending# ACitation#B
)ven though the trial court was persuaded Aa partyB had breached the agreement, the court1s
resolution of this factual issue did not permit it to enter %udgment in the old action# ?n short, in the
absence of a motion under Code of Civil rocedure section "6$ to vacate the dismissal, the court was
without sub%ect matter %urisdiction of the old action# ACitations#B ANB Gan3 relies on the theory # # # that
AsectionB !!"#! only re>uires an action to be pending when the parties enter into the agreement# # # #
;e disagree# &his is an issue of sub%ect matter %urisdiction# (nd whether an action is pending and the
court has concurrent %urisdiction to act is an issue which must be determined at the time the court
see3s to act# Gecause the old action was no longer pending at the time the court sought to enter the
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OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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%udgment reviewed here, the court was without sub%ect matter %urisdiction#9 (ie-o Bancorp, supra,
216 Cal#(pp#$d at p# 24!#
&hus, although section !!"#! provides a valuable tool in aid of enforcing settlements, it may
not be invo3ed whenever a party see3s enforcement##
(s one court pointed outE 7A-Bo one forced Gan3 to agree to a settlement which provided for
dismissal of the old action# (s the parties certainly recogni=ed, not all settlements contemplate a
dismissal of the underlying action# Gan3 could have protected itself from ;ood1s alleged infidelity by
refusing to agree to that provision# ?t did not# -o matter how toothless the agreement may seem in
retrospect, it is not the province of the trial court to rewrite it and put in the teeth the complaining side
now thin3s it should have had# ACitation#B Gan31s remedy, if any, was to move to vacate the
dismissal#9 (ie-o Bancorp, supra, 216 Cal#(pp#$d at p# 246#
7A;Be have found no basis in the history or policy of section !!"#! to allow parties who have
no case pending in a court to obtain a %udgment from that court#9 Housing %roup, supra, :4
Cal#(pp#"th at p# 111$#
.odify the wording here to fit your particular situation. $o '(T
)ust use the wording in this paragraph unless it definitely applies to
your situation.
+++
+++
+++
+++
+++
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OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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---.
C('C#+,-('
Cor the reasons stated above, the Court should deny the motion to enforce the settlement
agreement#
,ated________________ _______________________________________________
(-. (&&O/-). O/ (/&.
- 10 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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$EC#0R0T-(' (F
?, _______________________, declare as followsE
1# ? am an attorney duly admitted to practice law before all of the courts of the 0tate of
California and the attorney of record for ___________ in the aboveDcaptioned action entitled
__________, now pending before the ________County 0uperior Court
1# ? have personal firsthand 3nowledge of the facts set forth herein and if called
as a witness could and would testify competently to the truth of the facts set forth herein#
$# ? ma3e this declaration in support of the opposition to the motion to enforce settlement
agreement filed by ______________#
"# &he settlement agreement is not valid as the parties did not agree to all the material
terms in that #-,T 4ERE T4E F0CT, ,+%%(RT-'5 *(+R C('TE'T-(' T40T T4ERE
90, '( 05REE.E'T T( 0## T4E .0TER-0# TER.,#
F# &he settlement agreement is not valid and enforceable as the settlement agreement was
not signed by all the parties nor was it made orally before the court, thus the settlement agreement
does not comply with Code of Civil rocedure section !!" in that #-,T 4ERE T4E F0CT,
,+%%(RT-'5 *(+R C('TE'T-('#
!# &he moving party dismissed their prior lawsuit with pre%udice on _______# &he
dismissal with pre%udice of the lawsuit by the moving party has deprived this Court of sub%ect matter
%urisdiction# ( true and correct copy of said dismissal which was filed with the Court is attached
hereto as )*hibit 719 and incorporated herein#
6# #-,T 4ERE 0'$ &E#(9 0'* 0$$-T-('0# F0CT, 0'$ E/-$E'CE
T40T ,+%%(RT *(+R (%%(,-T-(' T( T4E .(T-('. 0TT0C4 0'* (T4ER
RE#E/0'T $(C+.E'T, 0, E?4-&-T @!A6 ETC.
- 11 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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.odify the wording here to fit your particular situation. $o '(T
)ust use the wording in this paragraph unless it definitely applies to
your situation.
? declare under penalty of per%ury under the laws of the 0tate of California that the foregoing
is true and correct, and that this declaration is e*ecuted on ______________,24__ at
______________________,California#
___________________________________________________
-(') OC )/0O- 0?L-?-L ,)CI(/(&?O-
- 12 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT
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%R((F (F ,ER/-CE
? am over the age of 15 and not a party to this action#
? am a resident of or employed in the county where the mailing occurred; my
business+residence address isE (,,/)00 OC )/0O- 0)/O?-L ()/0#
On ____________________ ? served the foregoing document(s) described asE (%%(,-T-('
T( .(T-(' T( E'F(RCE ,ETT#E.E'T 05REE.E'TB .E.(R0'$+. (F %(-'T,
0'$ 0+T4(R-T-E,B $EC#0R0T-(' (F ===========B E?4-&-T, to the following partiesE
'0.E 0'$ 0$$RE,, (F 0TT(R'E* F(R (T4ER %0RT* (R (T4ER %0RT*
APB (Gy ersonal 0ervice) ? caused such envelope to be delivered by hand via messenger
service to the address above;
A B (Gy Overnight ,elivery) ? caused such envelope to deposited in a dropDoff bo* or
other receptacle maintained by a company offering overnight delivery service in the
0tate of California#
? declare under penalty of per%ury under the laws of the 0tate of California that the foregoing
is true and correct#
,(&),E ______________
.......................................
-(') OC )/0O- 0)/O?-L ()/0
- 13 -
OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT