I dissent and would reverse the judgment. There are two reasons the judgment should not stand. First, procedurally the proper method of enforcing the settlement is by a motion for summary judgment, not a nonstatutory motion. Secondly, the express provisions of Government Code section 948 prevent the Attorney General from entering into a final and binding settlement of the plaintiff's case unless the provisions of that section are in fact complied with, and the evidence herein does not demonstrate that the approvals required were procured.
Taking up the procedural problem first, it is true that one division of the Court of Appeal of the First Appellate District has held that a judi*519daily supervised settlement may be enforced by a nonstatutory motion. (See Gregory v. Hamilton (1978) 77 Cal.App.3d 213 [142 Cal.Rptr. 563].) However, later, another division of the same district in a well-reasoned decision criticized1 Gregory and held the proper procedure is by way of a motion for summary judgment, by separate suit in equity or, in the event the defendant is attempting to enforce settlement, by way of affirmative defense. (See Hastings v. Matlock (1980) 107 Cal.App.3d 876 [166 Cal.Rptr. 229].) In my opinion, the reasoning of the latter opinion rests on a solid legal foundation and is irrefutable. As Hastings points out, there are no nonstatutory motions in California, those judicially developed aberrations having been finally buried with Pianka v. State of California (1956) 46 Cal.2d 208, 211 [293 P.2d 458], and Vesely v. Sager (1971) 5 Cal.3d 153, 167-168 [95 Cal.Rptr. 623, 486 P.2d 151]. It is now too late to again authorize deviation from the principles of Pianka and Vesely in the name of judicial expediency.
Because the motion papers filed herein do not conform with the technical requirements of a motion for summary judgment, including the declarations filed in support of and in opposition to such a summary judgment motion, we cannot treat the motion as one for summary judgment. (See Code Civ. Proc., § 437c.) Moreover, a material issue of fact existed which would, in any event, require a denial of the motion.
The second ground for reversal is the express requirements of Government Code section 948. At the time of the events herein that section provided:2 “The head of the state agency concerned, upon recommendation of the Attorney General or other attorney authorized *520to represent the state, may settle, adjust or compromise any pending action where, except for an action arising from the activities of the Department of Public Works, the Director of Finance certifies that a sufficient appropriation for the payment of claims exists. Where no funds or insufficient funds for such payment exist, the head of the state agency concerned, upon recommendation of the Attorney General or other attorney authorized to represent the state, may settle, adjust or compromise any pending action with the approval of the Department of Finance. As used in this section, ‘state agency’ means any office, officer, department, division, bureau, board, commission or agency of the state claims against which are paid by warrants drawn by the Controller.”
Section 948 was enacted in 1963. There can be no doubt that prior to its enactment the Attorney General had power to compromise litigation. Thus, the Attorney General himself stated in a 1941 opinion: “T am of the opinion that the Attorney General has the power to compromise litigation, or stipulate to judgment therein, when the rights of the State are in doubt and in honest dispute and he believes that such compromise or stipulation will best serve the interests of the State. This power is incidental to the general power of the Attorney General to handle and control litigation and is almost unanimously recognized by the courts of the United States and of the various states which have considered the question.’” (56 Ops.Cal.Atty.Gen. 503, 504 (1973), quoting from Ops.Cal.Atty.Gen. NS 3174a (1941).) (See also, Yanchor v. Kagan (1971) 22 Cal.App.3d 544, 549 [99 Cal.Rptr. 367], describing generally the authority of an attorney to act on behalf of his client.)
However, the enactment of section 948 expressly made the Attorney General’s authority to settle any pending action conditional. His authority to settle pending actions requires obtaining the approval of the head of the state department involved and a determination by the Department of Finance that there is money available to satisfy the settlement.
The Law Revision Commission comment to section 948 states: “This section specifies the conditions under which a pending action against the State may be settled or compromised. There is no comparable provision in the existing statutes.” (Cal. Law Revision Com. com. to Gov. Code, § 948, 32 West’s Ann. Gov. Code (1980 ed.) p. 624, italics added.)
*521I perceive that the purpose of the statute is to provide a control over disbursements from the public treasury and tends to insure the proper use of public funds. Thus, since 1963 the Attorney General has not had carte blanche authority to settle cases in litigation, his authority being substantially constricted by section 948. Before a settlement is valid the necessary approvals must be obtained. As in the case of other public officers and agents of the state, the state is not bound by acts of the Attorney General in excess of his authority, and one who deals with him is bound at his peril to ascertain the extent of his power to bind the state. As was said in Board of Administration v. Ames (1963) 215 Cal.App.2d 215, 230 [29 Cal.Rptr. 917]: “‘One who deals with a public officer stands charged presumptively with a full knowledge of that officer’s powers and is bound at his peril to ascertain the extent of his power to bind the government of which he is an officer, and any act of an officer to be valid must find express authority in the law or be necessarily incidental to a power expressly granted.’ (Bear River etc. Corp. v. County of Placer (1953) 118 Cal.App.2d 684, 690 [258 P.2d 543].)”
In the case at bench the amount and share of each defendant is conceded. It follows that the only issue of fact to be ascertained by the trial court in any proceeding instituted to enforce the alleged settlement against the state is that of whether the head of the department, Parks and Recreation, and the Department of Finance had in fact approved the settlement.
It is recognized that this conclusion would substantially deter and frustrate settlements of lawsuits and that such an effect runs counter to the oftstated and enlightened principles that settlements are highly favored in the law. Nor would this result aid the efficient administratian of justice. However, in the face of the express terms of section 948, I do not believe the court has any alternative. An appropriate solution lies with the Legislature, not the courts.
Referring to Gregory, the Hastings court said: “The reasoning underlying the Gregory holding is tenuous. Transformation of a special defense into a claim for specific performance with attendant deprival of jury verdict or written court findings is achieved ad hominem. (Id., at p. 219.) Although the Gregory court recognized that specific performance actions frequently involve proof of mixed legal and equitable questions, it dismissed the issue of the need for a jury trial with the circular argument that none is required since no legal relief is sought aside from enforcement of the disputed agreement. Finally, reliance on the single authority cited (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 179, p. 3749) is clearly misplaced. (Id., at p. 220.) It is simply too long a leap from that commentator’s reasoned analysis justifying post judgment relief by motion, based upon extrinsic fraud or mistake, to a conclusion that the judgment itself may be obtained in similar summary fashion notwithstanding the absence of statutory or other applicable authority.” (Hastings v. Matlock, supra, 107 Cal.App.3d at pp. 882-883, fn. 6.)
In 1980 section 948 was amended effective January 1, 1981. The amendment is irrelevant to the case at bench as it only deleted the exception relating to activities of the Department of Public Works referred to in the first sentence.