Filed 7/29/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re Marriage of JOANNE R. DALY and 

DAVID F. OYSTER.

 B249255

 (Los Angeles County

 Super. Ct. No. BD546477)

JOANNE R. DALY,

Respondent,

v.

DAVID F. OYSTER,

Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. David S. 

Cunningham, Judge. Affirmed.

Law Office of John A. Tkach and John A. Tkach, for Appellant.

Law Offices of Varoujan Agemian, Varoujan Agemian and Anahid Agemian for 

Respondent.

______________________________
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David Oyster appeals from a limited judgment on a reserved issue in this marital 

dissolution action, arguing the judgment was grounded on a document made inadmissible 

by Evidence Code section 1119. We agree and affirm.

BACKGROUND

Joanne Daly and Oyster were married in 1981 and separated in 2004. In 2005, 

Daly filed a marital dissolution petition in the Los Angeles Superior Court. The petition 

was never served on Oyster and no other documents were filed, but the parties entered 

into mediation which resulted in a proposed stipulated judgment that settled all issues 

concerning marital rights, including child custody and support, spousal support, and 

division of property. 

Specifically, the stipulated judgment, dated June 2006, provided for allocation of 

four parcels of real property and division of personal property, including three 

automobiles, three checking accounts, four retirement accounts, four life insurance 

policies, and five credit accounts, with Daly waiving her right to an equalization payment 

of approximately $340,000. The stipulated judgment provided for joint legal custody of 

the parties’ one minor child (who is now 17 years old) and set forth a schedule for 

physical custody and visitation and child support. It also provided that Daly would pay 

Oyster $2,000 per month in spousal support through August 2020. The stipulated 

judgment stated that Daly would pay filing and mediation fees incurred for purposes of 

the divorce but that each party would be responsible for his or her own attorney fees. The 

parties represented that they had disclosed, in the form of asset schedules and income and 

expense declarations, all assets, liabilities, income and benefits of either party, and 

waived any further asset valuation. 

The stipulated judgment stated it constituted a “marital settlement agreement 

which will be conformed as a Stipulated Judgement [sic] of the court.” It stated it 

contained, “the entire agreement between Petitioner and Respondent with respect to all 

marital rights” and “shall be the operable court judgment with relation to the Stipulated 

Judgment for Dissolution of Marriage.” Finally, the stipulated judgment stated the court 
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would “reserve[] jurisdiction to supervise the payment of any obligation ordered paid or 

allocated in this Stipulated Judgment; supervise the execution of any documents required 

or reasonably necessary to carry out the terms of this Judgment; and supervise the overall 

enforcement of this Judgment.”

Neither the stipulated judgment nor any other document was ever filed in the 

dissolution proceedings, and on May 31, 2011, the superior court dismissed Daly’s 

petition for lack of prosecution.

Within two weeks, on June 13, 2011, Daly filed a second dissolution petition and 

moved to have the stipulated judgment both entered nunc pro tunc as a judgment in the 

dismissed proceedings and incorporated into a judgment in the current proceedings. She 

represented she had failed to file the stipulated judgment in the prior proceedings because 

she mistakenly thought the mediator would do so, and thereby effect entry of judgment. 

She also represented that the parties never reconciled, and all terms of the stipulated 

judgment had been completely performed.

Oyster opposed the motions, arguing he thought the 2006 stipulated judgment 

memorialized merely the first round of negotiations, after which he would be given an 

opportunity to request modifications. He represented that some obligations under the 

stipulated judgment had not been performed. For example, pension accounts had not 

been divided and distributed. Oyster stated he had neither provided nor received income 

and expense declarations or a schedule of assets, and he was told additional steps would 

need to be taken and documents filed before the divorce could go forward. 

The trial court denied Daly’s motion to enter the 2006 stipulated judgment in the 

dismissed proceedings. It also denied without prejudice her motion to enforce it in the 

current proceedings. The matter was then set for trial on the enforceability of the 

stipulated judgment. 

At trial, Oyster objected to admission of the stipulated judgment on the ground 

that it was protected by the mediation privilege, Evidence Code section 1119. The trial 

court overruled the objection and, after testimony, concluded the stipulated judgment 
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constituted an enforceable marital settlement agreement (MSA). The court found “there 

was complete performance,” but incongruously also found “there was part performance 

by petitioner and no evidence was presented as to what was performed and what was not 

performed.”

On May 21, 2013, the trial court entered a “judgment on reserved issues”

expressly based on the 2006 stipulated judgment. The judgment resolved child custody, 

visitation and support issues pursuant to the stipulated judgment, resolved spousal 

support pursuant to an order dated May 11, 2012 (which is not in the record), and ordered 

property division and payment of attorney fees as set forth in the stipulated judgment. 

The judgment reserved jurisdiction “over all other issues” and did not purport to effect a 

complete dissolution. The minute order provided that “the parties are free to pursue postjudgment modification if they wish to, but the court finds that the MSA is an enforceable 

contract and judgment is to be entered based on that contract.” 

Oyster timely appealed. 

DISCUSSION

A. Admissibility of the Stipulated Judgment

Oyster first contends the 2006 stipulated judgment could not be admitted into 

evidence in the 2011 dissolution proceedings because it resulted from mediation, and was 

thus confidential pursuant to Evidence Code section 1119. We disagree.

With limited exceptions, no evidence of anything said and no writing prepared in 

the course of a mediation is admissible in any civil action. (Evid. Code, § 1119, subds. 

(a) & (b).)

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 One exception concerns written settlement agreements. A written settlement 

agreement prepared in the course of a mediation is not made inadmissible by Evidence 

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Evidence Code section 1119, subdivision (b) provides: “No writing, as defined 

in Section 250, that is prepared 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 writing shall not be compelled, in any arbitration, administrative 

adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, 

testimony can be compelled to be given.”
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Code section 1119 if the agreement is signed by the settling parties and “[t]he agreement 

provides that it is admissible or subject to disclosure, or words to that effect,” or “[t]he 

agreement provides that it is enforceable or binding or words to that effect.” (Evid. Code, 

§ 1123, subds. (a) & (b), italics added.)

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 Evidence Code section 1119 thus states the 

general rule that writings prepared in the course of mediation are inadmissible, “[e]xcept 

as otherwise provided in this chapter.” Section 1123 states the exceptions applicable to 

written settlement agreements, including the requirements at issue here: The agreement 

provides that it is admissible or subject to disclosure or that it is enforceable or binding, 

or words to that effect. (Evid. Code, § 1123, subds. (a) & (b); Fair v. Bakhtiari (2006) 40 

Cal.4th 189, 195-196.)

The “words to that effect” clause “reflects a legislative concern not with the 

precise words of a settlement agreement, but with terms unambiguously signifying the 

parties’ intent” to disclose the agreement or be bound by it. (Fair v. Bakhtiari, supra, 40 

Cal.4th at p. 197.) The phrase “refers to language that conveys a general meaning or 

import.” (Ibid.) Under Evidence Code section 1123, “the use of such language will 

exempt a written settlement agreement from the general rule that documents prepared 

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The full text of section Evidence Code section 1123 is as follows:

“A written settlement agreement prepared in the course of, or pursuant to, a mediation, is 

not made inadmissible, or protected from disclosure, by provisions of this chapter if the 

agreement is signed by the settling parties and any of the following conditions are 

satisfied:

“(a) The agreement provides that it is admissible or subject to disclosure, or words to that 

effect.

“(b) The agreement provides that it is enforceable or binding or words to that effect.

“(c) All parties to the agreement expressly agree in writing, or orally in accordance with 

Section 1118, to its disclosure.

“(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue 

in dispute.”
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during mediation are inadmissible in future proceedings. The Legislature’s goal was to 

allow parties to express their intent to be bound in words they were likely to use, rather 

than requiring a legalistic formulation. The Legislature also meant to clarify the rules 

governing admissibility and reduce the likelihood that parties would overlook those rules. 

To meet these objectives, we must balance the requirements of flexibility and clarity, 

without eroding the confidentiality that is ‘essential to effective mediation.’ [Citations.]” 

(Fair v. Bakhtiari, supra, at p. 197.) To satisfy the “words to that effect” provision of 

subdivision (a) or (b) of section 1123, a writing must directly express the parties’

agreement to disclose or be bound by the document they sign. (Fair v. Bakhtiari, at p. 

197; see Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1578.)

Here, the parties characterized the stipulated judgment as a “marital settlement 

agreement,” agreed it would “be the operable court judgment with relation to the 

Stipulated Judgment for Dissolution,” and agreed the court would “reserve[] jurisdiction 

to supervise the payment of any obligation ordered paid or allocated in this Stipulated 

Judgment; supervise the execution of any documents required or reasonably necessary to 

carry out the terms of this Judgment; and supervise the overall enforcement of this 

Judgment.” Use of such language clearly reflected the parties’ agreement that the 

stipulated judgment be subject to disclosure and be enforceable. The parties agreed the 

court would enforce the document, which it could not do unless the document was 

disclosed to it. It was therefore admissible under Evidence Code section 1123.

Defendant argues the stipulated judgment on its face indicates it was to be used 

only in the prior dismissed proceedings. No such limitation appears on the face of the 

document, as the stipulated judgment provides only it “shall be the operable court 

judgment with relation to the Stipulated Judgment for Dissolution of Marriage,” and does 

not specify which dissolution of marriage. Nevertheless, we acknowledge that the 

document was prepared for and intended to be used in the initial divorce proceedings. 

But for purposes of Evidence Code section 1123 the pertinent inquiry is whether the 

parties intended the stipulated judgment to remain confidential, not whether they intended 
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that it survive dismissal of the original divorce proceedings. By providing that the court 

would enforce the agreement and they would be bound by it, the parties clearly 

demonstrated they did not intend that it remain confidential.

B. Enforceability

Oyster contends a stipulated judgment created only for one case cannot become 

the basis for a judgment in a subsequent case. He cites no authority for the proposition, 

and at any rate nothing in the record suggests the stipulated judgment here was intended 

to be limited to the original divorce proceedings. The agreement stated its purpose was 

“to make a complete settlement of the division of community, quasi-community and coowned property between [Daly and Oyster],” and nothing in the record suggests the 

nature of that property materially changed between May 31, 2011, when the original 

dissolution petition was dismissed, and June 13, 2011, when Daly filed the second 

petition. Admittedly, the stipulated judgment provided that it “shall be the operable court 

judgment with relation to the Stipulated Judgment for Dissolution of Marriage” (italics 

added), and when it was executed the only petition for dissolution of marriage was the 

one Daly filed in 2005. But she filed no “stipulated judgment for dissolution of 

marriage” in that action, so the agreement could not have been referring to a specific 

document filed therein. It seems apparent that the parties intended by the agreement 

simply to settle their divorce. Such a settlement by its nature recognizes the termination 

of a relationship and effects the parties’ final separation and independence by disjoining 

and fixing property and other rights going forward in perpetuity. Nothing suggests the

parties here intended that separation and independence not occur—and the settlement 

agreement become null—if the divorce took longer than five years.

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In a related vein, Oyster contends the judgment constitutes an improper nunc pro 

tunc order because it effectively opens and modifies the May 31, 2011 judgment of 

dismissal, in the prior dissolution proceedings. We disagree. The judgment here pertains 

only to the current proceedings. The original proceedings remain dismissed.
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Somewhat perplexingly, Oyster contends that because Daly would be time-barred 

from asserting any breach of the settlement agreement, “it follows that [she] is time 

barred from maintaining any action to enforce the” agreement. Oyster calculates this 

supposed limitation by reasoning it was incumbent upon Daly to file the stipulated 

judgment in 2006, when it was executed, and the limitations period for an action for 

breach of written contract is four years (Code of Civ. Proc., § 337). Oyster cites no 

authority either for the requirement that a stipulated judgment be filed immediately when 

executed or for the proposition that the limitations period on an action for breach also 

limits the time in which a stipulation may be enforced. At any rate, assuming the 

settlement agreement was intended to terminate the original dissolution proceedings, 

those proceedings were not required to be completed until 2011, five years after Daly 

filed the original petition. (Code Civ. Proc., § 583.310.) Therefore, even under Oyster’s 

reasoning Daly had until 2015 (the filing deadline plus four years) to enforce the 

settlement.

Oyster argues no judgment with respect to the parties’ property rights may be 

entered without the parties having executed and served final declarations of disclosure 

and current income and expense declarations. He is correct. (Fam. Code, §§ 2105, 

2106.) But the trial court has not yet entered a final “judgment with respect to the 

parties’ property rights.” The judgment is “on reserved issues” only, namely the 

enforceability of the 2006 stipulated judgment, and the court stated in its minute order 

that the parties were free to pursue modification. Although a box is checked on the form 

judgment indicating “property division is ordered as set forth in the attached [¶] 

Settlement agreement, stipulation for judgment, or other written agreement,” we take this 

to mean only that the 2006 stipulated judgment will govern division of marital property. 

Final disclosures and possible modifications are yet to be made, and must be made before 

a final judgment of dissolution is entered.

Finally, Oyster argues with citation to no authority or principle that the trial court 

lacked jurisdiction to consider whether the stipulated judgment constituted an enforceable 
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marital settlement agreement. The argument is meritless. (Code Civ. Proc., § 395, subd. 

(a) [superior court where either petitioner or respondent resides is proper court for trial of 

dissolution of marriage proceeding].) 

DISPOSITION

The judgment is affirmed. Respondent is to recover her costs on appeal but her 

motion for sanctions is denied.

TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

WILEY, J.

*

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.