Case Number: BC723677 Hearing Date: May 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT

On September 28, 2018, Plaintiff Tambala Zalicoffer (“Plaintiff”) filed this action against Defendant King Nails and Spa (“Defendant”) for general negligence arising out of a November 30, 2016 injury. On November 28, 2018, Plaintiff accepted a settlement offer from Defendant. (Declaration of Edward S. Fine, ¶ 5.) On December 4, 2018, Plaintiff’s counsel received a Release of All Claims Form from defense counsel and promptly had Plaintiff sign it. (Fine Decl., ¶ 6.) A request for dismissal was also prepared, and Plaintiff’s counsel advised it would be filed when the settlement check was received. (Fine Decl., ¶ 8.) A few weeks later, Plaintiff’s counsel contacted defense counsel regarding the status of the settlement check, but defense counsel stated the check would not be issued until Plaintiff’s medical records were received. (Fine Decl., ¶ 9.) Plaintiff’s counsel responded that a settlement had already been reached based on the medical records currently in Defendant’s possession and that if the check was not received by December 31, 2018, Plaintiff would seek court intervention to enforce the settlement. (Fine Decl., ¶ 10.) On December 27, 2018, Defendant filed an Answer to the Complaint.

“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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6.) In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment. (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.) The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a “writing signed by the parties” sufficient to satisfy the requirements of Section 664.6].)

Plaintiff attaches the settlement agreement sought to be enforced. However, the agreement is not signed by Defendant. The Court may not enforce a settlement under Section 664.6 where there is no “writing signed by the parties.” Further, Plaintiff provides no other documents signed by both parties that the Court may interpret as settlement and enforce. (Gallo v. Getz (1988) 205 Cal.App.3d 329, 333 [letters of the settlement agreement signed only by plaintiff’s attorney were not sufficient under Section 664.6, but the draft issued by the insurer payable to plaintiff and his attorney, signed by insurer and drawn from insurer’s bank, and endorsed by plaintiff and his attorney in final settlement of the claim was sufficient to be a writing signed by both parties].)

Section 664.6 requires strict compliance. Accordingly, the Motion to enforce settlement is DENIED.

Moving party to give notice.