Case Number: BC446304    Hearing Date: April 23, 2014    Dept: 32

CASE NAME: Charles Williams v. Bruce Hanley, et al.
CASE NO.: BC446304
HEARING DATE: April 23, 2014
DEPARTMENT: 32
SUBJECT: Motion to Enforce Settlement
MOVING PARTY: Defendant Bruce Hanley; Joinder by Defendants Stephen Gonzalez and Janet Henson; Joinder by Defendants Edward Saucerman and Titan Empire, Inc.
RESP. PARTY: Plaintiff Charles Williams

TENTATIVE RULING

Motion to Enforce Settlement GRANTED. The Court finds that Exhibit B to the Lawler Declaration reflects the terms of the “standard release” agreed to at the January 14, 2014 hearing.

ANALYSIS

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (CCP § 664.6.)

The reporter’s transcript reflects that the parties all orally agreed to a settlement of this action on January 14, 2014. The parties dispute whether the terms included execution of a “standard release” and, if so, the provisions that would be included in such release.

William Kronenberg, on behalf of Defendants Saucerman and Titan Empire, Inc., summarized the terms as follows: “The terms that have been recited by Mr. Murphy are not the terms that we intend to settle by. I would
propose an alternative general statement of the settlement. In exchange for the sum of $100000 on behalf of all defendants, plaintiff agrees to complete dismissal of all claims pending in the case, to execute a standard release that includes a confidentiality provision, and in that release plaintiff’s counsel has requested certain language with regard to the nature of the injuries which we have agreed to, but it is a complete dismissal of all claims. And obviously the release will include language where there’s a denial of liability. And all parties agree to bear their own attorneys’ fees and costs.” (Mot. Exh. A at 6 [emphasis added].)

Plaintiff’s counsel agreed to these terms as summarized by Kronenberg. (Id. at 7, 8.)

The Court later summarized the terms as follows: “It’s a complete dismissal of all claims in exchange for $100,000. Mr. Williams to execute a release with a confidentiality clause. The release is going to characterize the moneys coming in as being for personal injury damages. The defendants will deny liability. The payments are to be made within two weeks, if possible, of defendants receiving a signed release, and to be paid by a wire transfer if possible. If not, by check.” (Id. at 10.)

Defendants assert that the “standard release” agreed to by the parties includes various terms commonly used in the settlement of litigation funded by insurance carriers, as reflected in Exhibit B to the Lawler Declaration. Defendants submit evidence that Plaintiff’s own draft releases, proposed by Plaintiff on January 23, 2014 and February 5, 2014, included essentially the same provisions at paragraphs 1-18 and 20-23 of the standard release submitted as Exhibit B. (See Mot. 5; Exh. C and D.) Defendants’ attorneys submit declarations in which they indicate that, based on their experience in settling cases, it is custom and practice for a standard release to include the provisions identified at paragraphs 1-18 and 22-23 of Exhibit B to the Lawler Declaration. (Lawler Decl. ¶ 3; Zonder Decl. ¶ 3; Kracht Decl. ¶ 4.)

Defendants point out that attorney Kevin Gerry filed a notice of lien, for $8,931.25, on Plaintiff’s recovery in this case on or about February 7, 2014. (Lawler Decl. ¶ 10; Exh. F.) Defendants’ counsel informed Plaintiff that he would have to include Gerry as a payee on the settlement check, which Plaintiff’s counsel said was unacceptable. (Ibid.)

In opposition, Plaintiff contends that, although he did provide the drafts included as Exhibits C and D to the moving papers, such drafts were rejected by Defendants and therefore are not binding. However, the issue here is whether such drafts reflect the parties’ intent in agreeing to a “standard release” at the hearing on January 14, 2014. Contrary to Plaintiff’s suggestion, the oral agreement at the hearing included a “standard release,” as reflected in Kronenberg’s summary highlighted above. That Plaintiff himself drafted two releases that included paragraphs 1-18 and 20-23 of the release proposed by Defendants (Exhibit B), is strong circumstantial evidence that the parties had a meeting of the minds regarding such terms. Plaintiff’s drafts included releases by Defendants of Plaintiff, even though the parties only agreed for Plaintiff to execute a release. Thus, Defendants’ rejection of Plaintiff’s drafts does not undermine Defendants’ argument that the drafts reflect the parties’ intent with regard to the other provisions.

Plaintiff has also not rebutted Defendants’ evidence that it is custom and practice for a standard release to include the provisions identified at paragraphs 1-18 and 22-23 of Exhibit B to the Lawler Declaration. (Lawler Decl. ¶ 3; Zonder Decl. ¶ 3; Kracht Decl. ¶ 4.)

The release proposed by Plaintiff in opposition, in contrast, does not appear to reflect the parties’ intent. First, arguably it can be read so that it does not actually release Defendants of any liability. (Oppo. Exh. A.) Second, the release includes a provision for payment to Kevin Gerry, even though such lien was not asserted until after the January 14, 2014 hearing. Finally, Plaintiff fails to show that this release would be considered a “standard release” under the circumstances. Thus, the release proposed by Plaintiff does not reflect the parties’ intent at the time of the January 14, 2014 hearing.

Defendants’ proposed release does include two paragraphs regarding indemnity and Medicare issues that Defendants’ attorneys do not claim to be custom and practice for standard releases. (Lawler Decl. ¶ 3; Zonder Decl. ¶ 3; Kracht Decl. ¶ 4.) Defendants have explained the need for these paragraphs in the moving papers (Mot. 6-7). Plaintiff argues that such provisions are unnecessary because he did not receive medical treatment in this case. (Oppo. 4.) However, he cites no authorities in support of that argument. Plaintiff also included versions of these provisions in his drafts, which suggests the parties had a meeting of the minds regarding these provisions.

The motion is GRANTED. The Court finds that Exhibit B to the Lawler Declaration reflects the terms of the “standard release” agreed to at the January 14, 2014 hearing. The Court orders Plaintiff and his counsel to sign the general release by a date certain. If not signed, the Court will order the Clerk to sign in Mr. Murphy’s stead. Further the Court orders that payment be made to Plaintiff in accordance with the terms of the settlement.

The parties dispute whether the settlement check should include the lienholder Kevin Gerry as a payee. This issue was not before the Court when the settlement was reached, and it is not included in Defendants’ proposed release. Plaintiff proposes in opposition that defendants could just issue a separate check to Gerry for $8,931.25. If Defendants do not agree to that approach, further briefing would be necessary to determine whether Defendants are required to list Gerry as a payee consistent with the terms of the settlement and with law.