Case Name: Melody Borch-Jensen, et al. v. Alex Lopez, et al.
Case No.: 2018-CV-3330998

Motion for Summary Judgment to the Complaint by Defendants Alex Lopez and Carol Perez

Factual and Procedural Background

This is a motor vehicle accident case. On July 18, 2016, there was an auto accident in Santa Clara County between a vehicle driven by defendant Alex Lopez (“Alex”) and one driven by plaintiff Melody Borch-Jensen (“Melody”). (See Sep. Stmt. of Defendants Alex Lopez and Carol Perez [collectively, “Defendants”] at No. 1.)

Plaintiff Melody brought a claim against Defendants with the company that insured the vehicle driven by defendant Alex, Progressive Casualty Insurance Company (“Progressive”). (See Defendants’ Sep. Stmt. at No. 2.) The case settled for $15,000 which constitutes the limits of the Progressive insurance policy. (Id. at No. 5.) Plaintiffs Melody and her husband, Dennis Borch-Jensen (“Dennis”) (collectively, “Plaintiffs”), signed a settlement agreement acknowledging they agreed to settle the case for the amount of $15,000. (Id. at Nos. 6-8.)

Despite this settlement agreement, Plaintiffs filed suit against Defendants alleging claims for motor vehicle, negligence, and loss of consortium.

On August 2, 2018, Defendants filed their answer to the complaint alleging various affirmative defenses. The parties later stipulated to amend the answer to allege the following affirmative defense: “That recovery by Plaintiffs is barred because the parties had agreed in writing to settle the dispute and as part of that agreement Plaintiffs agreed not to file a complaint against Defendants.” (See Defendants’ Sep. Stmt. at No. 17.)

Motion for Summary Judgment

Currently before the Court is Defendants’ motion for summary judgment to the complaint. (Code Civ. Proc., § 437c.) Plaintiffs filed written opposition. Defendants filed reply papers and objections to evidence. No trial date has been set.

Evidentiary Objections

In reply, Defendants assert various evidentiary objections to the opposition.

As a preliminary matter, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats contained in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Defendants failed to comply with the rule as they did not submit a proposed order as required by the rules of court. In any case, the Court declines to rule on the evidentiary objections as they are not material to the outcome of the motion. (See Code Civ. Proc., § 437c, subd. (q).)

Legal Standard

“Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law.” (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856 (Rosenblum).) “The moving party bears the burden of establishing, by declarations and evidence, a complete defense to plaintiff’s action or the absence of an essential element of plaintiff’s case.” (Ibid.) “The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial.” (Ibid.)

When the moving party makes that showing, the burden of proof shifts to the opposing party to show, by responsive separate statement and admissible evidence, that triable issues of fact exist. (Rosenblum, supra, 126 Cal.App.4th at p. 856.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Motion for Summary Judgment is DENIED.

The sole argument raised by Defendants on summary judgment is the complaint is barred by the settlement agreement entered into by the parties.

“The case law uniformly treats a settlement agreement as a contract subject to all the normal legal and statutory contractual requirements.” (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) “A settlement contract also has the attributes of a judgment in that it is decisive of the rights of the parties and serves to bar reopening of the issues settled. Absent a fundamental defect in the agreement itself the terms are binding on the parties.” (Gorman v. Holte (1985) 164 Cal.App.3d 984, 988.)

On summary judgment, Defendants therefore have the burden of establishing each contractual element—parties who are capable of entering into the contract, their mutual consent, a lawful object, and sufficient cause or consideration. (Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1585-1586.)

In support of the motion, Defendants submit the following undisputed evidence: (1) Plaintiffs signed the settlement agreement acknowledging they agreed to settle the case for $15,000; (2) Plaintiffs read the settlement agreement before signing it; and (3) when Plaintiffs signed the agreement, they agreed with its terms. (See Defendants’ Sep. Stmt. at Nos. 6-8.) In particular, the settlement agreement includes the following statement:

“That this is a full and final release of any and all claims arising out of said accident and expressly includes, but is not limited to, all unknown and unanticipated injuries, deaths, loss of services and consortium and damages resulting from said accident, casualty or event, as well as those now disclosed.”
(Id. at No. 10.)

In addition, Defendants present evidence showing Progressive provided Plaintiffs with the settlement funds in two checks issued in the amounts of $5,000 and $10,000. (See Defendants’ Sep. Stmt. at Nos. 12-13.) The check for $5,000 was made out to “MELODY BORCH-JENSEN and DENNIS BORCH-JENSEN AND THE LAW OFFICES OF TRAVIS WHITFIELD (“Whitfield”).” (Id. at No. 12.) The check for $10,000 was made out to “MELODY BORCH-JENSEN AND DENNIS BORCH-JENSEN AND TRYK LAW.” (Id. at No. 13.) Finally, Defendants contend Plaintiffs did not attempt to rescind the settlement agreement. Because the settlement agreement is valid, Defendants argue the contract constitutes a complete defense to the complaint.

In opposition, Plaintiffs argue the settlement agreement is not enforceable as the consideration set forth in the release has not been paid. Plaintiffs do not dispute receipt of the $10,000 check. Thus, the only issue is whether Plaintiffs have received the check for $5,000. As stated above, Progressive issued that check to Plaintiffs and Whitfield. However, as the opposition points out, Whitfield previously represented only plaintiff Melody, not plaintiff Dennis. (See Tryk Decl. at Ex. B.) By contrast, Defendants argue that Whitfield represented both Plaintiffs. (See Defendants’ Sep. Stmt. at No. 3.) This contention is undermined by Defendants’ own evidence demonstrating that Whitfield was attorney of record only for plaintiff Melody. (See Novoa Decl. at Ex. A.) In addition, Plaintiffs’ counsel states he did not authorize any disbursement of funds from Progressive to Whitfield’s office. (Tryk Decl. at ¶¶ 17, 28.) Therefore, as Defendants have tendered only a partial payment ($10,000) to Plaintiffs, they have not fully complied with their part of the settlement agreement. (Id. at ¶¶ 22, 34, 38; Plaintiffs’ Disputed Facts at Nos. 14, 16.)

Apparently, in recognizing the error with the $5,000 check, Progressive attempted to cure by offering Plaintiffs and their current counsel (Tryk Law P.C.) a total of $15,000. (See Defendants’ Sep. Stmt. at No. 15.) This offer however is contingent on Plaintiffs signing an affidavit verifying they never signed the first check made out to them and Whitfield so that Progressive can go back to Whitfield’s bank and recover the extra $5,000. (Ibid. [Abulebda Decl., Ex. A].) However, as the opposition points out, the settlement agreement terms do not contemplate acceptance of the $15,000 upon signing an affidavit. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 [the objective intent of the parties is evidenced by the words of the instrument].) Nor have Defendants advanced any legal authority to justify this condition to the terms of the settlement agreement. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Instead, Progressive was required to tender the full payment to Plaintiffs in accordance with the settlement agreement. To the extent that Progressive needs to obtain the $5,000 check from Whitfield, it can pursue the appropriate legal means to do so. At a minimum, a triable issue of fact exists as to whether Defendants have fully complied with the settlement agreement to defeat summary judgment.

Consequently, the motion for summary judgment is DENIED. Given this ruling, the Court declines to consider Plaintiffs’ request for a continuance.

Disposition

The motion for summary judgment is DENIED.