Judge Andrew E. Cooper, Case Number: 22CHCV01339, Date: 2024-12-20 Tentative Ruling

Judge: Andrew E. Cooper, Case: 22CHCV01339, Date: 2024-12-20 Tentative Ruling

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Case Number: 22CHCV01339 Hearing Date: December 20, 2024 Dept: F51

Dept. F-51¿¿

Date: 12/20/24

Case #22CHCV01339

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DECEMBER 19, 2024

MOTION FOR SUMMARY JUDGMENT

Los Angeles Superior Court Case # 22CHCV01339

Motion Filed: 5/21/24

MOVING PARTY: Defendant Gienno Marcucci (“Defendant”)

RESPONDING PARTY: Plaintiffs Jaime Ruth Horwitz Wotherspoon; and Donald John Wotherspoon (collectively, “Plaintiffs”)

NOTICE: OK¿

RELIEF REQUESTED: An order granting summary judgment in favor of Defendant and against Plaintiffs on Plaintiffs’ complaint.

TENTATIVE RULING: The motion is denied.

BACKGROUND

This is a personal injury action in which Plaintiffs, a married couple, allege that on 12/19/20, plaintiffs Jaime Wotherspoon and Pamela Baldwin-Lampman were standing in front of a lawfully parked truck when Defendant rear-ended the truck with his vehicle, causing the truck to run over the plaintiffs. (Compl. ¶¶ 7–9, 14–17.) On 12/8/22, Plaintiffs filed their complaint, alleging against Defendant the following causes of action: (1) Negligence; and (2) Loss of Consortium. On 5/25/23, plaintiffs Pamela Baldwin-Lampman and Richard Lampman dismissed their claims without prejudice. On 7/19/23, Defendant filed his answer. On 11/16/23, Defendant filed his amended answer.

On 5/21/24, Defendant filed the instant motion for summary judgment. On 12/6/24, Plaintiffs filed their opposition. On 12/13/24, Defendant filed his reply.

ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.)

Once the defendant has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

A. Settlement Agreement

Defendant’s sole argument on summary judgment is that the parties entered into a settlement agreement which bars Plaintiffs’ claims in the instant litigation. Defendant therefore asserts that “the sole issue presented by this motion is whether the parties entered into a binding settlement when Alliance United accepted Wotherspoon’s policy limits offer.” (MSJ 5:26–27.)

1. Facts

The undisputed facts are as follows: At the time of the subject incident, Defendant was insured under an automobile policy issued by Alliance United Insurance Company, with liability coverage limits of $15,000 per person, $30,000 per accident. (UMF Nos. 3–4.) On 3/3/21, dismissed plaintiff Pamela Baldwin-Lampman sent a handwritten demand letter, signed by both Mrs. Lampman and Plaintiff Mrs. Wotherspoon, to Alliance United, stating, in relevant part:

“[…]Please agree to pay us Mr. Marcucci’s policy limits so that we can settle the case and make a claim to our own insurance. Of course in order to settle for the policy limits we need to know what they are so please send us proof of the amount of his policy with Alliance. If there is more insurance than just the Alliance policy, we will need proof of that insurance and it will also need to be paid. If Mr. Marcucci is claiming his only insurance is with Alliance or that he was not working, we want something signed by him saying so. Likewise, we are willing to sign something too if you need, please send whatever you want us to sign when you send everything else. We also understand that we will need to pay our medical bills from the settlement. Because of our injuries, we need to settle as soon as possible, so we ask that you send us everything no later than March 24, 2021. […]” (Ex. 5 to Decl. of Susan Nelson.)

On 3/10/21, Alliance United sent Plaintiff a letter requesting additional clarification and Plaintiff’s medical records, and explicitly stating that “this letter shall serve to acknowledge receipt of your time-limited demand dated March 3, 2020. [sic] Please note that this correspondence is not a counter or rejection of your demand, but simply a request for information, so we may properly evaluate your claim. … Again, nothing in this letter is intended to be any type of rejection or counteroffer of your demand, but solely intended request information needed to resolve the claim.” (Ex. 6 to Nelson Decl.) In this letter, Alliance United also requested “an extension to respond to your demand letter dated March 3, 2020. [sic] We propose 2 weeks from the date of receipt of your complete medical documentation and information needed to resolve your claim. Please advise.” (Ibid.) On 3/17/21, Alliance United sent Plaintiff a follow-up letter requesting the same.

On 3/20/21, Plaintiff sent Alliance United an email, answering Alliance United’s questions, and stating, in relevant part, the following: “I am uncomfortable giving an extension because I would like to get this resolved. … I have a lot of documents from my doctors but I do not have a scanner. If you have suggestions on how to get them if you still believe you need them please let me know.” (Ex. 15 to Nelson Decl.) On 3/23/21, Alliance United sent Plaintiff a letter, stating, in relevant part, the following:

“We are not in a position to accept your demand at this time and bring your claim to conclusion at the present time. Under the California Fair Claims Settlement Practices Regulations (C.C.R.2695.7(c)1), we are notifying you of our need for additional time. The reason for our need for additional time to conclude your claim is as follows: You have not provided loss related medical records, billing, and loss of earnings support to properly evaluate your claim. You can forward the supporting documentation via email … fax … or mail … Once we receive the information, we will review and evaluate the claim.” (Ex. 8 to Nelson Decl.)

On 4/16/21, Plaintiff sent Alliance united an email, stating, in relevant part: As I have said before I have a lot of paperwork and I do not have any way of scanning and emailing it to you and it is too much for me to fax it all to you. However I did find my discharge paperwork from the hospital it was only a few pages so I was able to fax that over to you this afternoon. Can you please confirm that you received it and are going to pay me the $15,000 policy limit thank you.” (Ex. 16 to Nelson Decl.) On 4/30/21, Alliance United received Plaintiff’s medical records via fax. (UMF No. 15.)

On 5/4/21, Alliance United sent Plaintiff a letter, stating, in relevant part:

“Based on the information you provide and the injuries you sustained, Alliance United Insurance Company hereby accepts your demand for the single per person bodily injury liability limit of $15,000 for a full and final settlement of all bodily injury claims for Jaime Ruth Horwitz Wotherspoon against our insured, Gienno A F Marcucci. … Enclosed please find our proposed settlement release for your review. A statute of limitations applies to this loss and may affect your rights. In order to preserve your recovery rights, you must either settle your claim or initiate litigation before the statute of limitations expires.” (Ex. 12 to Nelson Decl.)

Despite the foregoing, the parties were unable to come to an agreement regarding the terms of the release, and the instant litigation followed.

2. Contract Formation

Defendant argues that “here, plaintiffs’ March 3, 2021 and April 16, 2021 settlement offers and Alliance United’s May 4, 2021 acceptance are undisputed facts (i.e., there is no dispute about what either party said), and demonstrate that a contract was formed.” (MSJ 14:6–8, citing UMF Nos. 5, 13, 16.) Defendant characterizes both Mrs. Lampman’s 3/3/21 letter and Plaintiff’s 4/16/21 email as offers to settle Plaintiffs’ claims against Defendant, and Alliance United’s 5/4/21 email serves as an acceptance of Plaintiff’s offers. Defendant therefore argues that “because there was a ‘meeting of the minds’ on all material terms, the parties entered into a binding and enforceable settlement agreement as a matter of law.” (Id. at 14:21–22.)

Based on the foregoing, the Court finds that Defendant has satisfied his initial burden to present facts to establish a defense to Plaintiffs’ claims. The Court notes the parties’ arguments regarding Defendant’s failure to assert this defense in his amended answer, but agrees with Defendant that “an affirmative defense [may] be asserted for the first time in a motion for summary judgment absent a showing of prejudice.” (Atkins v. St. Cecilia Catholic School (2023) 90 Cal.App.5th 1328, 1341 [internal quotations omitted].) The burden thus shifts to Plaintiffs to show that a triable issue of fact exists as to whether a binding settlement agreement was formed between the Plaintiff and Alliance United, precluding Plaintiffs’ claims against Defendant in the instant action.

In opposition, Plaintiffs characterize Mrs. Lampman’s 3/3/21 demand letter as a settlement offer, which undisputedly lapsed on 3/24/21 without Alliance United’s acceptance. Plaintiffs contend that, contrary to Defendant’s assertions, Plaintiff’s 4/16/21 email to Alliance United was merely an inquiry, and not a renewal of the settlement offer. Plaintiffs further argue that Alliance United’s 5/4/21 email serves as a new settlement offer, which was not accepted by Plaintiffs, and therefore no binding settlement agreement was formed.

Specifically, Plaintiffs argue that “Defendant’s Motion consists of erroneous bare-bones conclusions, which label Ms. Horwitz’s one-sentence inquiry from April 16, 2021 a renewal of the two-and-a-half-page demand from March 3, 2021, with numerous material terms.” (Pls.’ Opp. 11:24–26.) “Ms. Horwitz was seeking a definitive answer as to what Alliance was intending to do, so she could decide how she was going to proceed.” (Id. at 13:1–2.) “Unlike the March 3, 2021 initial offer, the April 16 communication lists no material terms, does not mention settlement, and doesn’t make any promises.” (Id. at 13:20–21.) Plaintiffs further argue that Defendant mischaracterizes the communications between Plaintiff and Alliance United because “on the one hand, Defendant contends the May 4 letter is ‘acceptance’ of a settlement offer, but on the other, warns Ms. Horwitz of the running statute of limitations and instructs her to ‘settle your claim or initiate litigation.’” (Id. at 14:2–4, quoting Ex. 12 to Nelson Decl.) “A reasonable person interpreting the parties’ communications objectively would find that there was no meeting of the minds.” (Id. at 20:15–16.)

Defendant relies on CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, which involved a single car collision. Hodroj was the passenger of the vehicle, and CSAA insured the driver. (Hodroj, 72 Cal.App.5th at 274.) “Hodroj’s attorney wrote to CSAA offering that Hodroj

would settle his claim for bodily injuries in exchange for payment in the amount of the driver’s insurance policy limits, as long as certain conditions were fulfilled.” (Ibid.) CSAA timely accepted the settlement offer and sent Hodroj a check for $100,000, “with the proviso that it should not be presented until the release was signed. The next day, Hodroj reneged on the settlement. According to a letter from his attorney to CSAA, the reason was ‘the release you required our client to sign introduces significant and material new, additional and different terms and conditions’ beyond the offer of settlement.” (Id. at 275.) “Hodroj later filed a lawsuit against the driver for the injuries he sustained in the car accident and for property damage.” (Ibid.)

In response, CSAA filed suit against Hodroj for breach of the settlement agreement, then both parties moved for summary judgment, and the trial court granted CSAA’s motion and entered judgment in favor of CSAA. (Ibid.) The Court of Appeal opined that “when parties agree on the material terms of a contract with the intention to later reduce it to a formal writing, failure to complete the formal writing does not negate the existence of the initial contract,” and centered its analysis on the central question: “Would a reasonable person looking at the parties’ communications think they intended to be bound by a settlement agreement that would later be reduced to a more formal writing?” (Id. at 276–277.)

The Hodroj court ultimately found that “an objective observer would conclude from those communications that the parties intended to settle Hodroj’s bodily injury claim for the amount of the insurance policy limits ($100,000) and to later memorialize those terms in a formal document. That the proposed document contained terms materially different from what had been agreed to does not change the binding effect of the initial agreement. Hodroj was under no obligation to sign a release that was inconsistent what he agreed to. But a proposed writing that does not accurately reflect the terms of an agreement does not unwind the entire deal.” (Id. at 277.) The Court of Appeal affirmed the trial court’s granting of CSAA’s motion for summary judgment. (Id. at 278.)

Defendant argues that, “as in Hodroj, an enforceable settlement was reached here. When Alliance United accepted plaintiffs’ offer and complied with the other conditions of the demand, the parties had entered into an enforceable settlement. The proposed release was simply an effort to reduce the terms of the agreement to a formal writing. Proposing a release and including standard provision therein did not invalidate the initial settlement.” (MSJ 16:5–9.)

In opposition, Plaintiffs contend that in Hodroj, “the release was still not a mandatory prerequisite for settlement. … It was only an avenue to ‘later memorialize [the] terms in a formal document.’” (Pls.’ Opp. 19:26–27, quoting 72 Cal.App.5th at 277.) Plaintiffs argue that “contrary to the holding in Hodroj, here, Alliance made execution of a written Release—including all of its terms—an absolute condition of settlement. The communications between the parties indicate Alliance would not enter into a settlement without a signed Release that adhered strictly to its May 4, 2021 offer, repeatedly rejecting any modifications Plaintiffs proposed. … For that reason, unlike in Hodroj, where the release was an inconsequential document left to CSAA’s discretion, here, Alliance repeatedly informed Plaintiff that there would be no settlement unless she signed the release.” (Id. at 20:18–23.)

In support of their argument, Plaintiffs proffer a 6/7/21 communication from an Alliance United manager, stating that “if you wish to settle the claim, you will need to execute the releases just as Genesis has sent them to you.” (Ex. 8 to Decl. of Artur Aziev.) Plaintiffs also

proffer the deposition testimony of Alliance United’s Person Most Knowledgeable, who stated that “we do normally ask for a release in exchange for a settlement,” and that “we can’t issue the check until the release is received because we have to provide protection for our insured.” (Ex. 3 to Aziev Decl., 94:6–7, 128:8–10.)

Based on the foregoing, the Court agrees with Plaintiffs that “the issue of whether the April 16, 2021 email from Ms. Horwitz was an offer involves a factual inquiry and weighing of the evidence because ‘[t]he determination of whether a particular communication constitutes and operative offer, rather than an inoperative step in the preliminary negotiation of a contract, depends upon all the surrounding circumstances.’” (Pls.’ Opp. 16:11–15, quoting Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 271.)

Here, unlike in Hodroj, Allied Universal failed to timely accept Plaintiff’s initial 3/3/21 settlement offer before the stated deadline of 3/24/21. Moreover, unlike in Hodroj, here, Allied Universal has not issued a settlement check to Plaintiff, and has further communicated that the provision of settlement funds remained conditional on the execution of the release agreement. (Ex. 3 to Aziev Decl.; Ex. 8 to Aziev Decl.; Ex. 12 to Nelson Decl.) The Court further notes that at the summary judgment stage, “all doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 539.) The Court therefore finds that Plaintiffs have satisfied their responding evidentiary burden to show that a triable issue remains as to whether a binding settlement agreement was formed between Plaintiff and Alliance United.

Accordingly, the motion for summary judgment is denied.

CONCLUSION

The motion is denied.