Case Number: BC700069 Hearing Date: February 05, 2019 Dept: 34

SUBJECT: Motion to enforce settlement

Moving Party: Defendant Richard A. Higginson

Resp. Party: Plaintiff Charlene Capetillo

The motion is GRANTED. The case is dismissed.

BACKGROUND:

Plaintiff commenced this action on 03/29/2018 against defendant for: (1) quiet title; (2) breach of contract; (3); specific performance; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) unjust enrichment; (7) fraud and deceit; (8) preliminary and permanent injunction; and (9) conversion.

ANALYSIS:

Defendant seeks to enforce a settlement entered into between him and Plaintiff.

A. Procedural Issues

Plaintiff contends she was not properly served. (Opposition, p. 4.) The instant motion had to be served by personal service on January 14, 2019, or, if served by mail, by January 9, 2019. (See Code Civ. Proc. § 1005(b).) Instead, on January 8, 2018, Defendant’s counsel e-mailed Plaintiff’s counsel to advise him that Defendant would be filing the motion. (Opposition, p. 4.) The motion was subsequently served by electronic transmission on January 10, 2019. (Id.)

Pursuant to Code of Civil Procedure § 1010.6(a)(2)(A)(i): “For cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d).”

Plaintiff contends the parties do not have a formal or informal agreement allowing electronic service but is amenable to electronic service in the future. (Opposition, p. 4; Kim Decl., ¶ 7.) Therefore, service could be deemed to have been improper.

However, because Plaintiff opposed the motion by arguing the merits, she waived the issue of improper service. (Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) §9:88 [“Insufficient or defective notice may be waived if opposing counsel … argues the merits of the motion”]; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Moreover, there was no prejudice, as Plaintiff was notified on January 8, 2019 that Defendant would be filing the motion and Plaintiff subsequently opposed the motion. Accordingly, the Court reaches the merits.

B. Merits

i. Relevant Law

Code of Civil Procedure § 664.6 authorizes the Court to enforce a settlement agreement when the parties have signed a written agreement or the parties have orally stipulated to the settlement agreement in a Court proceeding. This allows the Court to enter a judgment pursuant to the terms of the settlement.

Code of Civil Procedure § 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) In order to be enforceable pursuant to the summary procedures of § 664.6, a settlement agreement must either be entered into orally before a court or must be in writing and signed by the parties. (Id.)

In deciding motions made under section 664.6, judges “must determine whether the parties entered into a valid and binding settlement.” (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.) For enforcement under Code of Civil Procedure § 664.6, parties may agree in different manners (oral or written) so long as they agree to all material terms. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428-1429.) An essential requirement of settlement agreements is evidence showing the parties’ manifestation of mutual, objective assent, to the same thing. (Estate of Thottam (2008) 165 Cal.App.4th 1331, 1340.) “A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1622-1623. Accord Levitz v. The Warlocks (2007) 148 Cal.App.4th 531, 535; Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 810; Weil & Brown, ¶ 12:955.5.)

ii. Discussion

Defendant’s counsel declares that the parties entered into a written settlement on May 10, 2018, which resolved a separate unlawful detainer action (18INUD00781) that Defendant had brought against Plaintiff. (Boykin Decl., ¶ 2, Exh. A.) The parties agreed to a stipulated judgment in that unlawful detainer action. The stipulated judgment was in favor of Defendant against Plaintiff and included a release of all claims Capetillo had against Higgonson; in particular the settlement included a clause that Plaintiff would dismiss the instant case. (Id., Exh. A, pp. 3, 5.) According to the settlement,

“[Capetillo] agrees to dismiss with prejudice LASC Case #BC700069 within five (5) days of the execution of this agreement.” (Id., Exh. A, p. 3.)

The agreement further provides that the parties “expressly waive the provisions and protections of California Civil Code section 1542 which provides as follows ‘A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which if known by him or her must have materially affected his or her settlement with the debtor.’” (Id., Exh. A p. 5.)

In opposition, Plaintiff argues that this Court has no jurisdiction to enforce the settlement agreement under Code of Civil Procedure § 664.6. (Opposition, pp. 3-4.) Plaintiff bases her argument on the ground that the settlement agreement was stipulated to in a separate unlawful detainer case in limited civil court. (Opposition, pp. 3-4) Plaintiff’s argument is frivolous. It is irrelevant to the issue of jurisdiction whether a written settlement agreement was stipulated to in a limited court, or any court. In order to be enforceable by the Court, CCP § 664.6 simply requires that the settlement agreement be in writing and signed by the parties. (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 810.)

Here, Defendant’s moving papers provide a complete copy of the agreement in Exhibit A. This copy includes a signature line for each party and is signed by each party. Since the Defendant has provided evidence that there was a written agreement signed by the parties, this Court has jurisdiction to enforce the agreement under the procedures in Code of Civil Procedure § 664.6.

Plaintiff also seems to be arguing that the settlement agreement should be voided because Capetillo signed the agreement under duress. Counsel states:

“On or about May 10, 2018, Plaintiff and Defendant entered into settlement discussions in the unlawful detainer action prior to the parties’ unlawful detainer trial. Settlement discussions took place in the hall of the courthouse between Higginson, Higginson’s attorney and Capetillo. Capetillo . . . was on pain medication for her knee at the time of the settlement negotiations. . . . The pain medication Capetillo takes (codeine/Tylenol) hinders Capetillo’s concentration and cognitive ability and gives her mental fog. . . .

“Additionally, Capetillo could not afford legal representation. . . . During the settlement negotiations, Higginson’s counsel told Capetillo that if she did not sign the Stipulated Judgement as it was written, she would immediately become homeless. . . . Capetillo was not given the option to make any changes or negotiate the Stipulated Judgment, and she was not given the option to take it home and review it when she was in a better mental state. . . . Capetillo entered into a Stipulated Judgment she did not understand under duress.” (Opposition, p. 2:5-27.)

There are three main problems with this argument. First, it is simply argument of counsel; there is no declaration or other evidence from Capetillo. “[T]he arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.” (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [emphasis in original].)

Second, the argument is replete with hearsay. Plaintiff’s counsel – who was not at the settlement discussion – says, e.g., that “Higginson’s counsel told Capetillo that . . . .” (Opposition, p. 2:18-19.) Plaintiff’s counsel also makes repeated statements about Capetillo’s mental and physical condition at the time of the settlement – such statements are also hearsay and without foundation.

Third, and most critically, if Plaintiff believed that the settlement was unenforceable because she entered into it under duress, her recourse was to move the UD court to vacate the settlement. In fact, Plaintiff apparently did just that. According to the opposition, “Capetillo moved to set aside the Stipulated Judgment. The limited Court did not set aside the Judgment. . . .” (Opposition, p. 2:28 – p. 3:1.) Apparently, the trial court that heard the UD and Plaintiff’s subsequent motion to set aside the settlement did not feel that the settlement should be voided because of Capetillo’s duress, mental or physical condition, lack of representation by an attorney, or for any other reason. It is not for this Court to second guess the trial court.

Defendant’s counsel declares that defendant failed to comply with the agreement by dismissing the instant case with prejudice. (Motion, Boykin Decl., ¶ 2.) Defendant is correct.

Defendant seeks to have this case dismissed pursuant to the settlement agreement. Defendant has met his burden of showing that he is entitled to judgment pursuant to the settlement.

Accordingly, the motion is GRANTED. The case is dismissed.