Case Number: BC546094 Hearing Date: May 09, 2016 Dept: 58

Hearing Date: Monday, May 9, 2016
Calendar No: 5
Case Name: Markovitch v. Mercury Casualty Company
Case No.: BC546094
Motion: Motion to Enforce Settlement
Moving Party: Defendant Mercury Casualty Company
Responding Party: Plaintiff Keith Markovitch

Tentative Ruling: Motion is granted in part: Defendant is to remit payment of $75,000 to Plaintiff promptly and this action is dismissed with prejudice. The Court retains jurisdiction pursuant to CCP § 664.6.
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On 5/20/14, Plaintiff Keith Markovitch filed this action against Defendant Mercury Casualty Company for breach of contract arising out of the alleged failure to pay sufficient homeowners insurance policy benefits for flood damage to Plaintiff’s residence and personal property as the result of a broken plumbing pipe. At the FSC on 12/15/15, the parties reached a settlement which terms were stated on the record. At the OSC re: dismissal on 3/4/16, the Court set trial for 7/11/16 and a pretrial conference for 6/9/16.

Motion to Enforce Settlement –
On 3/25/16, Plaintiff filed a motion to enforce the settlement agreement pursuant to CCP § 664.6. CCP § 664.6 provides in pertinent part: “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, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” On a motion pursuant to CCP § 664.6, the Court may receive evidence, determine disputed facts, decide what terms the parties have agreed upon, and enter the terms of a settlement agreement as a judgment: the Court’s factual findings is subject to a substantial evidence standard. Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.

The terms of the settlement were for Defendant to pay Plaintiff $75,000, Plaintiff to file a dismissal with prejudice, and to sign “corporate releases.” Dewey Decl. ¶¶ 3, 9, Ex. A [12/15/15 Transcript p. 5:24-6:3. Defendant submits that Plaintiff has refused to sign the long-form settlement agreement (Dewey Decl. ¶¶ 8-9, Ex. A), and requests the Court order Plaintiff to sign it and the request for dismissal (id. ¶ 10, Ex. B).

In opposition, Plaintiff does not dispute that the settlement includes a waiver under CCP § 1542 (see Dewey Decl. ¶ 7; Opp’n p. 2:11-16), but disagrees as to several terms in the long-form settlement agreement. Plaintiff does not agree that the money is to be paid to Plaintiff and James Hudson , to release other persons and entities besides Defendant, to release other claims that could have been alleged or asserted, to provide indemnity if any released claim has been assigned or transferred by Plaintiff, and otherwise does not agree to other various terms. Markovitch Decl. ¶¶ 5-6.

The Court finds that the long-form settlement agreement does not contain any terms that conflict with or provide expanded rights as compared to the terms stated on the record on 12/15/15. The long-form settlement agreement contains commonly used provisions for settlement as well as more precise and specific terms that would give the parties’ clarity to achieve the final settlement of this action. However, to the extent that Plaintiff refuses to sign the long-form settlement, the Court notes that the 12/15/15 terms of settlement are enforceable on their own terms.

To the extent Defendant may be required to address any of the issues that the more precise and specific terms in the long-form settlement would expressly cover, CCP § 664.6 is not the exclusive means to enforce a settlement agreement. The Court notes that any issues that may arise in the future may be pursued through alternative means (i.e., summary judgment, suit for breach of contract, or suit in equity). See Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293.

To the extent Plaintiff disputes whether payment is to be made to him directly or to counsel as well, the Court notes that on 12/15/15, Plaintiff specifically stated that he understood that the $75,000 was a gross payment that may or may not, as the case may be, be subject to deductions from Plaintiff’s current or previous counsel. No attorney liens have been filed in this action, and Plaintiff is currently representing himself.

Therefore, the Court will grant this motion in part, order Defendant to remit its payment of $75,000 to Plaintiff promptly, and dismiss this action with prejudice, retaining jurisdiction to enforce the settlement pursuant to CCP § 664.6.