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MERGER RULE/DOCTRINE

It has long been the rule in this state that apre-existing agreement between the parties is extinguished upon itsincorporation into a court order. Once the agreement is merged into thecourt's order, neither party any longer has a right of action based onthe agreement because the obligations imposed are not imposed by theagreement but by the order and are enforceable as such through contemptand other sanctions available to the court. Hough v. Hough (1945) 26Cal.2d 605, 609-614. Although this "merger" rule has traditionally beenapplied in the context of divorce actions, where a preceding property ormaintenance agreement is incorporated into the interlocutory decree, thepolicy reasons for the rule are just as applicable in the discoverycontext.

The "merger" doctrine does not require the preceding agreement to bespecifically incorporated by reference into the trial court's protectiveorder or that the parties or their attorneys request an incorporation ofthe preceding agreement. In Hough, the Court stated, "'[t]he parties, inmaking the agreement will be presumed to have entered into the same withthe understanding that the trial court possessed the power to change ormodify the award or provision made for support . . ..'" Hough supra at612. The Court went on to state, "'[i]t is not vital that the agreement. . . provides [for incorporation into the court order.] The action ofthe parties and the court in the . . .proceeding may be determinative.'"Id. at 613.

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