Case Number: SC114075    Hearing Date: August 22, 2014    Dept: M

Tentative Ruling
Brooks v. Pickford Realty
SC114075

Plaintiff’s lawsuit asserts numerous claims, including several under FEHA, arising from her alleged sexual harassment by her superior at Prudential California Realty. The parties placed a settlement on the record before Judge Michael Harwin on May 16, 2014. However, after the circulation of a first draft of the written settlement agreement, disputes arose as to numerous provisions thereof, including the confidentiality provision and whether Plaintiff waived the protections of CC 1542. The parties filed cross-motions under CCP 664.6 to enforce their respective versions of the settlement, which motions Judge Harwin denied on July 3, 2014, concluding that “confidentiality is not part of the settlement.”
Defendants once again move to enforce the terms of the settlement pursuant to CCP 664.6. Plaintiff has opposed the motion, asserting, inter alia, that the motion is an improper motion for reconsideration of Judge Harwin’s July 3, 2014 ruling. Defendants filed a reply.
DENIED:

Having read and considered the moving papers, the Court will tentatively deny the motion to enforce the settlement agreement pursuant to CCP 664.6, and rules as follows:

1. Evidentiary matters:
a. Plaintiff’s counsel should note that the better practice is to number evidentiary objections and to comply with rules designed to make ruling on them efficient and convenient for the Court. See, e.g., CRC 3.1354 (form and format of evidentiary objections re: motions for summary judgment – Plaintiff started down the proper path, but lost momentum along the way);
b. The Court on its own motion strikes the Fishman declaration in its entirety, with the exceptions of paras. 1-3 and 13. The declaration improperly mixes argument and evidence throughout; and
c. Accordingly, all of Plaintiff’s evidentiary objections to the Fishman declaration are overruled as moot, with the sole exception being Plaintiff’s of the objection to para. 13, which hearsay objection is overruled.

2. Sealing:
a. The Court will grant Defendants’ Motion to Seal Appendix of Evidence re Motion to Enforce Settlement:
i. Rule 2.550(c) of the California Rules of Court provides in part: “Unless confidentiality is required by law, court records are presumed to be open.” “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest.” CRC 2.550(d). See also, generally, NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 C 4th 1178;
ii. The party that is seeking to seal a court record has the burden of proof under CRC 2.550. See, H.B. Fuller Co. v. Doe (2007) 151 CA 4th 879, 894;
iii. The fact that the application is unopposed by Plaintiff is of little consequence; a court cannot order a record sealed based solely on the parties’ agreement to seal the record. CRC 2.551(a); H.B. Fuller, supra, at 891 (sealing order could not stand based on parties’ stipulation where the “trial court never found, and had no factual basis to find any facts supporting the sealing order”); Savaglio v. Wal-Mart Stores, Inc. (2007) 149 CA 4th 588, 600 (held, lower court could not have sealed documents without Wal-Mart filing a motion to seal under rule 2.550 based simply on the parties’ agreement or stipulation). In other words, a mere agreement between parties is not enough to seal court records and the parties must show some serious injury that would occur absent a sealing order. Universal City Studios, Inc. v. Superior Court (2003) 110 CA 4th 1273, 1282; see also H.B. Fuller, supra, at 891; Savaglio, supra, at 600;
iv. Notwithstanding the presumption of openness and the strict requirements of NBC Subsidiary and CRC 2.550, there are, of course, circumstances in which a sealing order is appropriate. One such instance is, as Defendants point out, where a settlement is asserted to be confidential. See, e.g., Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court (1996) 51 CA 4th 233, 241 ( “The privacy of a settlement is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant needs for confidentiality”); Board of Trustees of California State University v. Superior Court (2005) 132 CA 4th 889, 899 ((Public disclosure of confidential information “would chill the parties’ ability in many cases to settle the action before trial. Such a result runs contrary to the strong public policy of this state favoring settlement of actions”);
v. Here, the Court concludes, for the reasons well-stated in the application and the supporting declaration of Fishman, that all five standards set forth in CRC 2.550(d) are satisfied as to the subject Appendix of Evidence. The Court finds that there exists an overriding interest that overcomes the right of public access to the records, that the overriding interest supports sealing the records, that a substantial probability exists that the overriding interest will be prejudiced if the records are not sealed, that the proposed sealing is narrowly tailored, and that no less restrictive means exist to achieve the overriding interest;
vi. Further, Defendants followed the procedure required by CRC 2.551(d). That Rule provides: “Procedure for lodging of records: (1) A record that may be filed under seal must be put in an envelope or other appropriate container, sealed in the envelope or container, and lodged with the court. [Para.] (2) The envelope or container lodged with the court must be labeled “CONDITIONALLY UNDER SEAL.” [Para.] (3) The party submitting the lodged record must affix to the envelope or container a cover sheet that: [Para.] (A) Contains all the information required on a caption page under rule 2.111; and [Para.] (B) States that the enclosed record is subject to a motion or an application to file the record under seal.” “The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, unless good cause exists for not lodging it….” CRC 2.551(b)(4) (emphases added);
vii. In addition, the proposed order submitted by Defendants satisfies the requirements of CRC 2.550(e) and CRC 2.551(e) (which impose very specific requirements for the contents of an order sealing records); and
viii. Motion to Seal Appendix of Evidence re Motion to Enforce Settlement is granted. The Court will execute the proposed order lodged with the motion.

3. The Court exercises its discretion to consider the untimely opposition brief. CRC 3.1300(d) (Moreover, all parties were in contact with the Court and the Court already gave its approval);

4. The next issue is whether this motion is an improper motion for reconsideration of Judge Harwin’s July 3, 2014, ruling, as Plaintiff contends, and Defendants deny:
a. This Court cannot properly revisit issues decided by Judge Harwin. See, e.g., Metropolitan Water Dist. of Southern California v. Campus Crusade For Christ, Inc. (2005) 135 CA 4th 468, 581-82 (generally, the rulings of a judge may not be reconsidered by another judge); In re Alberto (2002) 102 CA 4th 421, 427 (“For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court”); see also, CCP 1008;
b. Neither side provided the Court with copies of their respective briefs considered by Judge Harwin, apparently, mistakenly assuming that same are in the Court’s file in this action. Thus, both sides have asked the Court to rule on this issue in a vacuum; the Court is not sufficiently informed as to the exact nature and scope of the issues and facts presented to Judge Harwin. Nor does the July 3, 2014, Minute Order (Opp., Exh. 1) state Judge Harwin’s conclusion as to whether the settlement included a 1542 waiver by Plaintiff.

5. However, even assuming arguendo that this motion is properly before the Court – a very dubious assumption considering that Judge Harwin stated that “confidentiality is not part of the settlement” and the motion seeks to have this Court conclude that it is – the Court will deny the motion;

6. Section 664.6 provides in relevant part: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court [ … ], for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” In effect, this section establishes “a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstanding are met.” Levy v. Superior Court (1995) 10 C 4th 578, 585;

7. CC 1542 provides: “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”;

8. In ruling on a motion to enforce a settlement pursuant to section 664.6, the trial court may act as a finder of fact, and it may rely on documentary evidence, oral testimony, or other admissible evidence. Kohn v. Jaymar-Ruby, Inc. (1994) 23 CA 4th 1530, 1533-1534;

9. “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” Weddington Productions, Inc. v. Flick (1998) 60 CA 4th 793, 810. “California law is clear that there is no contract until there has been a meeting of the minds on all material points.” Elyaoudayan v. Hoffman (2003) 104 CA 4th 1421, 1430 (internal quotations omitted);

10. “‘The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.’ [Citation.] … The parties’ outward manifestations must show that the parties all agreed ‘upon the same thing in the same sense.’ (Civ.Code, § 1580.);

11. If there is no evidence establishing the manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation. (Civ.Code, §§ 1550, 1565 & 1580.)” Weddington, supra, at 811; see also, e.g., T.M. Cobb, Co. v. Superior Court (1984) 36 C 3d 273, 282. In other words, courts look to “the reasonable meaning of [the parties’] words and acts, and not their unexpressed intentions or understandings.” Alexander v. Codemasters Group, Ltd. (2002) 104 CA 4th 129, 141;

12. Bearing the foregoing in mind, and after close review of the transcript of the May 16, 2014, settlement on the record, the Court concludes that there was no meeting of the minds as to the scope of the release or the confidentiality provision:
a. With regard to the scope of the release: the Court declines to imply a waiver of the protections of section 1542. Defendant has not cited to any authority supporting the proposition that the protections of CC 1542 can be impliedly waived, and the Court is aware of no such authority, and in the Court’s experience such waivers are always express and clear (and, more often than not, in writing); and
b. With regard to the confidentiality of the settlement: although the Court does not agree with Plaintiff’s assertion that Defendants “appear to be intentionally trying to mislead this Court…”, the Court agrees with the balance of the assertions stated at 3:19-4:9 of the opposition brief. In other words, the Court concludes that the parties agreed to some things being kept confidential, but which things, for how long and to what extent are simply unclear from the record presented. There clearly was no meeting of the minds on the scope of that provision – certainly, not one reflected on the record and thus enforceable under CCP 664.6.

13. Motion is denied with prejudice. The Court will, again, set an FSC and Jury Trial on a mutually agreeable date;

14. The Court strongly encourages the parties to renew their settlement efforts and to carefully document the terms of any settlement; and

15. Defendant shall give notice of today’s rulings and timely file proof of service thereof.