Hastings

The questions on appeal arise as a result of the enforcement of an alleged out of court oral settlement of litigation which included an action for rescission of a real estate transaction, a cross-action for damages and a separate action for unlawful detainer. The pivotal issue centers upon the validity of the use of a nonstatutory “speaking motion” seeking to compel specific enforcement of such a disputed oral settlement and release agreement. We conclude that the motion procedure employed to summarily adjudicate a disputed factual controversy is invalid. We further conclude that the validity of the purported oral settlement agreement may be appropriately considered under established pretrial summary motion procedures.

Facts

On September 24, 1976, the parties entered into a written contract for the purchase and sale of a two-and-one-half-acre parcel with a four bedroom house to be constructed thereon by respondent Doyle Hastings, a licensed contractor. The agreed purchase price, excluding additional improvements undertaken at appellants’ expense, was $206,800. After appellants had taken interim possession of the completed house pursuant to a “prerecordation rental…