* Merger Rule/Doctrine *
MERGER RULE/DOCTRINE - It has long been the rule in this state that a
pre-existing agreement between the parties is extinguished upon its
incorporation into a court order. Once the agreement is merged into the
court's order, neither party any longer has a right of action based on
the agreement because the obligations imposed are not imposed by the
agreement but by the order and are enforceable as such through contempt
and other sanctions available to the court. Hough v. Hough (1945) 26
Cal.2d 605, 609-614. Although this "merger" rule has traditionally been
applied in the context of divorce actions, where a preceding property or
maintenance agreement is incorporated into the interlocutory decree, the
policy reasons for the rule are just as applicable in the discovery
context.
The "merger" doctrine does not require the preceding agreement to be
specifically incorporated by reference into the trial court's protective
order or that the parties or their attorneys request an incorporation of
the preceding agreement. In Hough, the Court stated, "'[t]he parties, in
making the agreement will be presumed to have entered into the same with
the understanding that the trial court possessed the power to change or
modify the award or provision made for support . . ..'" Hough supra at
612. The Court went on to state, "'[i]t is not vital that the agreement
. . . provides [for incorporation into the court order.] The action of
the parties and the court in the . . .proceeding may be determinative.'"
Id. at 613.
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