Judge: Laura A. Seigle, Case: BC708543, Date: 2022-09-22 Tentative Ruling

Case Number: BC708543    Hearing Date: September 22, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION TO DISMISS

            Defendant Bristol-Myers Squibb Company (“Defendant”) seeks dismissal of the action against it based on a release signed by Plaintiffs Darren Sanchez, Brian Sanchez, and Jonna Hackler (“Plaintiffs”) releasing Defendant from all actions and claims regarding Edna Sanchez’s alleged exposure to asbestos.  Defendant argues the release precludes a trial of Plaintiffs’ claims against Defendant. 

            “One who agrees to waive or forego a right is precluded from afterwards asserting the right waived. . . .  A valid release conclusively estops the parties from reviving and relitigating the claim released.”  (Faye v. Feldman (1954) 128 Cal.App.2d 319, 327.)  “In general, a written release extinguishes any obligation covered by the release’s terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence.”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1352, 1366.) 

Defendant attaches a “Confidential Compromise and Release Agreement” signed by Plaintiffs stating Plaintiffs “hereby knowingly and voluntarily release, acquit, and forever discharge Defendants (as defined in this Agreement) of and from any and all past, present or future causes of action, suits, damages, costs, expenses, judgments, rights, executions, claims and demands of whatever kind or nature, in law or equity, which Plaintiff(s) now have or has ever had . . . regarding EDNA SANCHEZ’s alleged exposure to asbestos and any alleged injuries resulting therefrom.”  (Ulloa Decl., Ex. E at p. 3.)  The agreement defines “Defendant(s)” as including Bristol-Myers Squibb Company.  (Id. at p. 1.)  This language clearly covers Plaintiffs’ claims against Defendant in this litigation, and Plaintiffs do not contend otherwise.

Plaintiffs argue that Defendant did not pay anything as part of the settlement, so the release fails for lack of consideration.  (Opposition at p. 2.)  “Civil Code section 1541 permits the extinction of an obligation, unsupported by consideration, provided that the release is in writing.  The writing must, however, expressly show the creditor’s intent to extinguish the obligation.”  (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 31 n.7.)  Releases in writing are binding “even though there was not any consideration for them.”  (Marshal v. Packard-Bell Co. (1951) 106 Cal.App.2d 770, 775.)  “[T]he inadequacy of consideration alone is insufficient to set aside a written release.”  (Daneshmand v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923, 934.)  Here, the release is in writing and expressly shows Plaintiffs’ intent to extinguish all obligations Defendant may have based on Edna Sanchez’s alleged exposure to asbestos.  (Ulloa Decl., Ex. E at p. 3.) 

The Confidential Compromise and Release Agreement identifies the consideration as “the mutual promises and covenants herein contained” including a payment of a certain amount to Plaintiffs.  (Ulloa Decl., Ex. E at p. 3.)  That Revlon did not pay that amount because it filed for bankruptcy does not invalidate the release.  (Coles v. Glaser (2016) 2 Cal.App.5th 384, 392.)  Rather, if Revlon or Defendant (assuming Defendant had an obligation to pay the settlement amount, which Plaintiffs have not proven) breached the settlement agreement by failing to pay the settlement amount, Plaintiffs’ remedy is to seek to rescind the contract and recover damages resulting from the rescission or affirm the contract and recover damages for the breach.  (Ibid.)  Plaintiffs have not sought to rescind the contract and have not shown they can rescind the contract now that Revlon is in bankruptcy.  And Plaintiffs did not cite any authority that consideration fails when one party agrees to pay an amount to obtain the release of another party.  In any event, pursuant to the authority cited above, a release in writing is valid even without consideration. 

The motion is GRANTED.  Bristol-Myers Squibb Company is dismissed.

The moving party is to give notice.