2011-00113587-CU-FR

Mary C Engel vs. Ronnie L Loustaunau

Nature of Proceeding: Motion for Summary Judgment

Filed By: Holochuck, David W.

Defendant Ronnie Loustaunau’s motion for summary judgment against plaintiff Mary
Engel is GRANTED as follows.

Moving counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4);
Rule 3.1116(b)-(c); and Rule 3.1350(g).

Plaintiff’s counsel is admonished for failing to comply with CRC Rule 2.111(3); Rule
3.1110(b)(3)-(4); and Rule 3.1350(g).

Plaintiff’s request for judicial notice is granted as to Exhibit C (Probate Court’s Order
re: Mediation) but denied as to the remaining exhibits since none is properly the
subject of judicial notice under Evidence Code §450 et seq.

This action arises out of an earlier agreement to resolve a dispute over the distribution
of an intestate decedent, Oscar Loustaunau. Five (5) ostensible heirs including both
plaintiff Engel and defendant Loustaunau signed in September 2010 a written
settlement agreement and mutual general release relating to their respective claims to
the decedent’s estate but plaintiff Engel alleges in this action that she had a “separate
oral contract” with defendant Loustaunau whereby the latter would pay the former
additional money but defendant has breached this promise. Specifically, the verified
complaint states at Paragraph 7 that this “separate oral contract” was entered into on
November 10, 2010 but plaintiff herself testified at deposition not only that this oral
agreement with defendant preceded the September 2010 written settlement
agreement but also that plaintiff would not have signed that written agreement without
the oral promise. This testimony is consistent with the allegations in Paragraph 9 of
the verified complaint that defendant’s oral promise induced plaintiff to sign the written
settlement agreement in September 2010.

Plaintiff’s complaint here purports to assert causes of action against defendant
Loustaunau for breach of oral contract, fraud, conversion, unjust enrichment,
constructive trust and fraud (negligent misrepresentation).

Defendant now moves for summary judgment on the ground that the entire complaint
lacks merit as a matter of law given that the oral agreement allegedly made by
defendant contradicts and is superseded by the subsequent, fully integrated written
settlement agreement and mutual general release. In other words, defendant
maintains the present action is barred by the parol evidence rule although the moving
papers nowhere specifically refer to this rule by name. Defendant also argues that the
mediation privilege precludes evidence of the alleged oral agreement inasmuch as any
such offer by defendant was made in connection with the mediation which culminated
in the September 2010 written settlement agreement. Finally, defendant insists she is
entitled to recover attorney fees and costs incurred in this action pursuant to the
express terms of the written settlement agreement. As support for this motion,
defendant offers just eight (8) undisputed material facts (“UMF”).

Plaintiff opposes the motion arguing that there is a triable issue of fact relating to the
applicability of the mediation privilege because the July 2010 mediation was not
successful and because the parties were thereafter able to resolve the probate dispute
amongst themselves, culminating in the written settlement agreement which was
executed in September 2010. Plaintiff also argues that the parol evidence rule does
not preclude evidence where, as here, plaintiff disputes a settlement was reached and
where the terms of the settlement are unclear. In support of the opposition, plaintiff
contends that only the first two of the eight UMF are “disputed” but she offers no
additional material facts (“AMF”).

The Court holds that defendant’s moving papers satisfied the initial burden of
production under Code of Civil Procedure §437c(p)(2) and notes that plaintiff’s
opposition papers nowhere suggest otherwise. Accordingly, defendant successfully
shifted to plaintiff the burden to produce admissible evidence which demonstrates that
there is at least one triable issue of material fact which precludes summary judgment
as a matter of law in favor of defendant. As detailed below, plaintiff has failed to
satisfy her burden of production and accordingly, summary judgment is granted in
favor of defendant.

As noted above, plaintiff contends that only two of defendant’s eight UMF are
“disputed.” The only purported dispute over UMF 1 relates to the date of the mediation
in the earlier probate action but the date of this mediation is not “material” in that it has
no bearing on defendant’s primary argument relating to the parol evidence rule. Thus,
plaintiff’s purported dispute over UMF 1 fails to create any triable issue of material fact
which precludes summary judgment in defendant’s favor.

UMF 2 asserts “A mediated settlement agreement was reached, and an attorney
drafted Settlement Agreement and Mutual General Release (…) was signed in
counterpart…” While the opposition disputes that the settlement was accomplished
through the mediation itself but rather only through subsequent independent
negotiations, this purported dispute does not create a triable issue of material fact that
defeats summary judgment here. Instead, the “material” portion of UMF 2 is
essentially that a written settlement agreement was executed by the parties. Among
other things, that settlement agreement expressly provided the following:

“2. In consideration of the promises contained herein, and except as otherwise
provided in this Agreement, the parties agree to release and forever discharge
each other from any and all claims, demands, damages, actions, and other
causes of action of every kind, known or unknown, that they may have had or
now have against each other, their agents, assigns, attorneys, heirs, insurers,
or successor in interest, whether known or unknown, seen or unseen, patent or
latent. All parties further agree that they will dismiss with prejudice any and all
actions they may have against one another whether arising out of the same
facts as set forth in this action or not, and that they will release any and all liens,
judgments for money or otherwise that they have against each other whether
arising out of the same facts as set forth in this action or not, including but not
limited to, that certain action Mary C. Engel v. Blaine A. Loustaunau and Ellen
Wars, and Does 1-5, Superior Court of California, Sacramento County Case No.
34-2010-00078053.
…
4. This Agreement is an integrated agreement and contains the entire
agreement regarding the matters herein between the signatories hereto. No
representations, warranties, or promises have been made or relied upon by any
signatory hereto other than as set forth herein. This Agreement supersedes
and controls any and all prior communications between the parties or their
representatives relative to the matters contained herein.
…
8. Each of the parties represents and warrants to the other parties and
acknowledges that they have agreed to this Agreement only after (a) first
obtaining all legal and other-technical, scientific or professional advice they
determine to be appropriate and necessary; and (b) determining that, in their
judgment, their best financial and other interests are served by doing so. In this
regard, each of the parties represents and warrants to the remaining parties, or
any of them, or any of their respective agents, that each of the parties accepts
full, sole and complete responsibility for their decision to agree hereto, and
knowingly accepts and assumes the risk that they may he mistaken, as to the
applicable facts or law. Each of the parties further represents and warrants to
the remaining parties that they have agreed to this Agreement solely in reliance
upon their own knowledge and information as to the nature, extent, and duration
of damages, losses, legal rights, and claims alleged in the litigation. Each of the
parties represents and warrants to the remaining parties that, even though they
are fully aware of the above-described limitations or knowledge and
uncertainties, they accept and assume the risk that if any fact or circumstances
found, suspected, or clarified hereafter to be other than or different from the
facts or circumstances now believed to be true, the release of each party
contained herein shall be and remain effective, notwithstanding any such
difference in any such facts or circumstances.
…
12. For purposes of construing or interpreting this Agreement, it shall be
deemed to have been drafted equally by all parties hereto.”
(Emphasis added.)

Based on the undisputed facts of this case and the plain language of the parties’
written settlement agreement, the Court concludes that plaintiff’s claims based on an
alleged oral agreement which conflicts with the express provisions of the written
settlement is barred as a matter of law under the parol evidence rule and that
defendant is therefore entitled to judgment as a matter of law against plaintiff.
In light of the foregoing, the Court need not address defendant’s secondary argument
premised on the application of the mediation privilege.

Finally, while defendant’s motion also specifically sought an award of attorney fees
and costs pursuant to the parties’ written settlement agreement, none of the UMF
offered by defendant refers to such fees and costs. More significantly, the Court finds
no evidence relating to the fees and costs claimed by defendant. As such, neither fees
nor costs can be awarded here but defendant remains free to file a memorandum of
costs and a motion for attorney fees upon entry of judgment.

Pursuant to CRC Rule 3.1312, counsel for defendant to prepare an order which
conforms to Code of Civil Procedure §437c(g) along with a proposed judgment of
dismissal.