Judge: Frank M. Tavelman, Case: 20BBCV00421, Date: 2023-05-19 Tentative Ruling

Case Number: 20BBCV00421    Hearing Date: February 9, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO ENFORCE SETTLEMENT AGREEMENT

BMBG Investments, LLC v HF-11 NOHO LLC, Et al.

MP:     Art & Sone construction, Inc. (Defendant)

RP:      BMBG Investments, LLC

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412

Summary of the Motion

Defendant, Art & Son Construction, Inc. (“A&SC”) brought an ex parte application to enforce settlement.  On February 5, 2024, the Court, on its own motion, continued the matter to February 9, 2024.   

A&SC argues that the case was mediated with Hon. Lisa Cole (ret.) who issued a mediator’s proposal.   Plaintiff directly contacted the mediator to advise that she was going to accept the $300,000 offer to settle the case.  A settlement agreement was circulated, but Plaintiff declined to sign the agreement.  A&SC argues that CCP §664.6 permits a party to enforce a settlement agreement that is signed by a party or an attorney representing a party.

Nora Boardman, counsel for A&SC included a declaration to which was attached relevant email communications.  Exhibit C to the attachment expressly states that the Plaintiff through its representative, Maya Kadosh, stated,

“My attorney had to leave town early this afternoon and is traveling and cannot respond to the settlement offer deadline and I am responding instead.   I am going to accept the settlement offer of $300,000 to settle my case and the reason that I am accepting the $300,000 offer is because of my health and my high blood pressure and not because I agree with what happened in the mediation. (emphasis added)”

This email was sent directly to Judge Cole with a copy to Plaintiff’s attorney on December 18, 2023, prior to the expiration of the mediator’s proposal.

Subsequent to Ms. Kadosh’s email, John Haushalter, the Plaintiff’s attorney, sent a letter to defense counsel for co-defendant Focus Builders, Inc. thanking counsel for drafting the settlement agreement and confirming that a settlement check should be made out to BMBG Investments, LLC.  Furthermore, Mr. Haushalter attests that the Plaintiff, “requires no changes to the agreement.”

Plaintiff filed an opposition to enforcing the settlement agreement arguing that the writing contemplated by CCP §664.6 does not include an email acceptance of a mediator’s proposal.  Plaintiff further argues that the mediator’s proposal includes a caveat that a written settlement agreement would be prepared and circulated for review and approval.  Effectively, Plaintiff argues that the approval of the written settlement agreement is a condition precedent to having an enforceable agreement. 

Attached to the opposition is a copy of Judge Cole’s mediator proposal.  The proposal expressly states that the “long form settlement agreement” is not intended to change any substantive terms, but rather to “include additional customary terms.  However, if there are any terms, other than the monetary term, that you deem critical to a resolution to these claims, please let me [Judge Cole] know at your earliest opportunity.”   There is no evidence that any critical terms were omitted. 

The mediator’s proposal included the following General Terms:

1.      Defendants Focus Builders and Art and Son agreed to collectively pay BMBG the total sum of $300,000 for a complete settlement of all claims, between and among each other.

2.      Defendant 11 NoHo agrees to dismiss its claim for encroachment in exchange for a waiver of costs.

3.      All sides to bear their own fees and costs.

4.      All parties agree to a full general release of all claims, known, unknown, 1542, between and among each other.

5.      Defense to prepare a longform settlement agreement.

6.      Payment to be made within 30 days of fully executed settlement agreement.

7.      Dismissal of all claims with prejudice

8.      Settlement enforceable pursuant to 664.6

Law and Analysis

“California C.C.P. §664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809-810.  The trial court must first determine whether the parties entered into an enforceable settlement. In making that determination, the trial court acts as the trier of fact, determining whether the parties entered into a binding and valid settlement. Trial judges may consider oral testimony or may determine the motion based upon declarations alone. Elyaoudayan v. Hoffman (2003) 103 Cal.App.4th 1421, 1428-1429.

An email may constitute an electronic signature to a writing.  Civil Code §1633.7 provides that a "a record or signature may not be denied legal effect or enforceability solely because it is in electronic form" and that "electronic and handwritten signatures have the same legal effect and are equally enforceable." Civ. Code, § 1633.7, subds. (a), (b).  The issue of electronic signatures as referenced in Section 1633.7 was addressed in the decision of J.B.B. Inv. Partners, Ltd. v. Fair (2014) 232 Cal. App. 4th 974, where, after the court specifically noted that a printed name or symbol can constitute a signature under UETA and "might even satisfy the more rigorous requirements under Code of Civil Procedure section 664.6," the court confirmed that under section 1633.2, an " [electronic signature' means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record." (J.B.B., supra, 232 Cal.App.4th at 989, citing CACI No. 380 [party suing to enforce an agreement formalized by electronic means must prove "based on the context and surrounding circumstances, including the conduct of the parties, that the parties agreed to use [e.g., e-mail] to formalize their agreement" (italics omitted.)

It is clear to the Court that the Plaintiff intended the email and her typed name to be affirmation of the Plaintiff’s acceptance of the mediator’s proposal.   In addition, the follow up communication by Plaintiff’s counsel affirmed that the intent of the email was to accept the settlement agreement, and that there were no material terms that needed to be corrected in the proposed longform settlement agreement.  Furthermore, in reviewing the mediator’s proposal, email responses were what was expressly requested, which is precisely what the Plaintiff did.   The subsequent email from Judge Cole that a deal had been reached confirms that all the parties to the mediator’s proposal agreed to the terms.

Plaintiff’s argument that the settlement was contingent on drafting of a longform settlement agreement acceptable to both sides is unpersuasive.   The Court of Appeal has opined that a trial court may enforce a CCP §664.6 motion, and if necessary may receive evidence to determine disputed facts and enter the terms of a settlement agreement as a judgment.  However, the trial court may not create material terms of a settlement as opposed to deciding what terms the parties themselves agree upon.  Wedding Productions, Inc. v. Flick (1998) 60 Cal. App. 4^th 793.

In this instance, the material terms were set forth in the mediator’s proposal.   Judge Cole invited the parties to advise of any additional material terms that were required.  No party has provided any evidence that any additional material terms were required.  Likewise, the email from Plaintiff’s counsel confirmed that Plaintiff did not have any other material terms that needed to be included in the settlement agreement.   As such, the Court believes it has sufficient evidence to determine the terms of the agreement.

Conclusion

A&SC has shown that a mutual settlement agreement had been reached in this matter that was subject to CCP §664.6.   Plaintiff had accepted the mediator’s proposal, and the Court finds that the agreement is enforceable as accepted.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Defendant Art & Son Construction, Inc.’s Motion to Enforce Settlement Agreement came on ex parte for hearing on February 9, 2024.   On February 9, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

ART & SON CONSTRUCTION, INC.’S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AGAINST PLAINTIFF IS GRANTED. 

UNLESS ALL PARTIES WAIVE NOTICE, ART & SON CONSTRUCTION, INC. TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  February 9, 2023                             _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles