Judge: Laura A. Seigle, Case: BC708543, Date: 2022-08-24 Tentative Ruling

Case Number: BC708543    Hearing Date: August 24, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL SETTLEMENT PAYMENT

            Plaintiffs seek an order under Code of Civil Procedure section 664.6 compelling Bristol-Meyers Squibb to make a settlement payment pursuant to a January 9 or January 14, 2022 settlement agreement.  Plaintiffs state the settlement agreement required the settlement to be funded no later than 45 days from the receipt of an executed release, but they have yet to receive the payment.  The Court denied Plaintiffs’ first motion because Plaintiffs did not file the settlement agreement at issue.  Plaintiffs then re-filed the motion with a copy of the email chain Plaintiffs contend constitute the settlement.

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.)  Under section 664.6, if the parties “stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.  Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement.  (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)  “ ‘ “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” ’  [Citations.]”  (Machado v. Myers (2019) 39 Cal.App.5th 779, 790.) 

Plaintiffs state both Bristol Myers Squibb and Revlon, Inc. agreed to settle this case for a certain amount in exchange for dismissals of both Bristol Myers Squibb and Revlon and both agreed to pay the settlement amount.  (Motion at p. 3.)  Plaintiffs point to a January 9, 2022 email from defense counsel (Exhibit A) and a January 14, 2022 release agreement (Exhibit C).  (Ibid.)  Bristol Myers Squibb argues Revlon had assumed Bristol Myers Squibb’s liabilities and had agreed to indemnify and defend Bristol Myers Squibb in this litigation.  (Opposition at p. 2.)  According to Defendant, Revlon agreed to settle the case and pay the settlement amount, Bristol Myers Squibb was merely a released party, and Bristol Myers Squibb did not sign any agreement.  (Id. at pp. 1, 8.) 

Plaintiffs’ Exhibit A, an email chain, starts with an email from Plaintiffs’ counsel stating, “Please confirm that we are settled with Revlon in the below cases, as follows:  . . . Edna Sanchez – [redacted amount].”  (Ex. A at p. 2.)  Defense counsel responds “Confirmed.”  (Id. at p. 1.)  Plaintiffs’ counsel emails back, “Just to confirm, we are settled for the amounts indicated below.  But as we have just discussed, we have agreed that payment will be made in each case 45 days from your receipt of a signed release in that case.”  (Ibid.)  Defense counsel again responded “Confirmed . . . .”  (Ibid.)  The emails do not mention Bristol Myers Squibb.  The email chain contains the subject line “Revlon Settlements.”  The first email states “we are settled with Revlon.”  “Bristol Myers Squibb” and “BMS” do not appear anywhere in Exhibit A.  Nothing in Exhibit A allows the inference that Bristol Myers Squibb was agreeing to pay a certain settlement amount.

Exhibit C is entitled Confidential Compromise and Release Agreement, states it is a compromise and release between Plaintiffs and Revlon and Bristol Myers Squibb, and is signed by Plaintiffs but not any defendant and not any defense counsel.  Exhibit C states “Defendant shall pay to Plaintiff(s) the sum of [redacted] . . . .”  (Ex. C at p. 3.)  The document states, “‘Defendant(s)’ means Revlon, Inc.; Bristol Myers Squibb Company (sued individually and as successor-in-interest to Charles of the Ritz, hereafter referred to as ‘Defendants’), . . . .”  (Id. at p. 1.)  Thus, the document can be interpreted to mean that both Revlon and Bristol Myers Squibb would pay Plaintiff the redacted amount.  However, no defendant and no defense counsel signed Exhibit C.  Without that signature, Exhibit C is not enforceable under section 664.6.

In addition, Bristol Myers Squibb points to a January 10, 2022 letter from Plaintiffs’ counsel to defense counsel regarding “Compromise Agreement between Revlon Consumer Products Corporation and Simon Greenstone Panatier (SGP) clients:  . . . Edna Sanchez, . . . .”  (Defendant’s Ex. B at p. 1.)  The letter states it “will serve to confirm our agreement that is our confidential settlement regarding the above-referenced cases.  The consideration for this contractual agreement is not only the money exchanged in return for a release of the claims against Revlon Consumer Products Corporation, but also for the agreement to forego trial against Revlon Consumer Products Corporation in these cases.”  (Ibid.)  The letter refers to “Revlon Consumer Products Corporation’s obligations to pay the settlement proceeds under this agreement.”  (Id. at p. 2.)  The letter does not mention Bristol Myers Squibb.  This document supports Defendant’s position that only Revlon was to pay the settlement amount.

Plaintiffs did not show a meeting of the minds in an agreement signed by the parties or their counsel, or even an email exchange between counsel, confirming that Bristol Myers Squibb is to pay the settlement amount to Plaintiffs.  Because the Court cannot add terms to the settlement agreement or enforce terms that do not appear in the settlement agreement, the motion is DENIED.

            The moving party is to give notice.