2016-00193891-CU-PA

Kathleen M. Martin vs. Hayzak Mehrabyan

Nature of Proceeding: Motion to Enforce Settlement Agreement and Enter Judgment

Filed By: Win-Thu, Jane

Defendants Slavic Post, Inc.’s et al.’s motion to enforce settlement agreement and enter judgment is denied.

In this personal injury action, Plaintiff Kathleen Martin served a CCP § 998 offer on September 9, 2016 for $100,000 which was intended to be a policy limits demand. Defendants initially requested a 30 day extension of time to November 8, 2016 to respond. (Saravia Decl. ¶¶ 4-5, Exh, A, B.) Defendants did not respond by November 8, 2016. On May 22, 2017, Plaintiff’s counsel sent Defendants’ counsel a letter offering to settle the case within the available $100,000 policy limits. (Win-Thu Decl. ¶ 6, Exh. A) Plaintiff’s counsel advised that Plaintiff may want declarations verifying no additional insurance and assets were available. (Id.) On June 2, 2017, Defendants’ counsel sent a letter purporting to “confirm settlement” in the sum of the “remaining policy limits of $92,935.89.” (Id., Exh. B.) Plaintiff’s counsel responded the same day with a letter asking why the “limits” were not the full $100,000. Defendants’ counsel indicated that the $7,064.11 was deducted from the policy limits as a result of Plaintiff’s insurer’s subrogation demand. On June 7, 2017, Plaintiff’s counsel sent a letter rejecting Defendants’ tender.

Defendants now move to enforce the purported settlement pursuant to CCP § 664.6.

Pursuant to CCP § 664.6, “[i]f parties to pending litigation stipulate in writing signed by the parties outside the presence of the court…, for settlement of the case,…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.” (CCP § 664.6.) On a 664.6 motion the “trial court merely resolve[s] questions about the settlement.” ( Malouf Bros. v. Dixon (1991) 230 Cal.App.3d 280, 284.) “[N]othing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what the parties themselves have previously agreed upon.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984.)

CCP § 664.6 “was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Weddington Productions, Inc.

v. Flick (1998) 60 Cal.App.4th 793, 809.) “In order to be enforceable pursuant to the summary procedures of section 664.6, a settlement agreement must either be entered into orally before a court [ ] or must be in writing and signed by the parties.” (Id. at 810.)

Here, there is no settlement which the Court can enforce pursuant to CCP § 664.6. First the parties dispute whether there was in fact any settlement at all. Plaintiff maintains that she made an offer to settle for the $100,000 policy limits while Defendant contend that the June 2, 2017 letter constituted an offer to settle for the available remaining policy limits which was $92,935.89, and which defendant accepted. Here, the Court need not resolve this issue as the motion under § 664.6 must be denied on the basis that there was no writing signed by any of the parties. Therefore, the court need not reach whether the parties had a meeting of the minds as to the purported settlement on this motion. See, e.g. Goldberg v. City of Santa Clara (1971) 21 Cal. App. 3d 857, 863.

Here, there are simply two letters, the June 2, 2017 letter from Plaintiff’s counsel, offering to settle for policy limits [$100,000], and the June 2, 2017 letter from Defendants’ counsel purporting to accept the settlement offer for $92,935.89. Both letters are signed only by counsel. As set forth above, however, CCP § 664.6 requires that the “parties” stipulate in writing for the settlement. The term “parties” “as used in section 664.6 (“If the parties to pending litigation stipulate…for settlement of their case…”) means the litigants themselves, and does not include their attorneys of record. Because in this case Golant, a party litigant, did not sign the agreement to settle, it is not enforceable under section 664.6.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) Here, because no party signed any purported settlement agreement, the motion to enforce pursuant to CCP § 664.6 must be denied.

Defendants’ reply focuses entirely on whether the settlement was validly accepted pursuant to CCP § 998 and that Plaintiff’s counsel’s June 7, 2017 letter rejecting their tender was in bad faith because they had already accepted Plaintiff’s offer to settle. The merits of this argument are not relevant to the instant motion which was made pursuant to CCP § 664.6. Indeed, Defendants even acknowledge in reply that there must be a writing signed by the litigant and not just the attorneys under Levy, supra, 10 Cal.4th 578. (Reply 2:14-16.) The fact that the agreement would have been signed by the litigants if Plaintiff’s counsel did not reject Defendant’s tender of the $92,935.89 is not relevant. What is relevant is that the motion to enforce was brought pursuant to CCP § 664.6 and there is no signed writing by the litigants themselves. The motion must be denied. While Defendants may have some other remedy, it is not pursuant to § CCP 664.6.

While Plaintiff filed an objection to the motion on the basis that it was not timely served, she thereafter fully opposed the motion on the merits.