Judge Lee W. Tsao, Case Number: 20STCV22420, Date: 2023-05-24 Tentative Ruling

Judge: Lee W. Tsao, Case: 20STCV22420, Date: 2023-05-24 Tentative Ruling

Case Number: 20STCV22420 Hearing Date: April 25, 2024 Dept: C

SHAFFER v. K&M MEAT COMPANY, INC.

CASE NO.: 20STCV22420

HEARING: 04/25/24

Plaintiff’s Motion for Reconsideration of this Court’s December 5, 2022 Order is MOOT. Plaintiff’s Renewed Motion to Enforce Settlement is DENIED.

Opposing Party to give notice.

This action for premises liability was filed by Plaintiff BERNARDO SHAFFER (“Plaintiff”) on June 12, 2020.

Plaintiff alleges the following pertinent facts: “On or about February 21, 2019, Plaintiff was invited onto Defendants’ property…. [¶] Defendants… negligently installed and/or maintained the floor of the second story of Defendants’ building, leaving the floor of the second story to be unsecure and too unsafe to walk on, so as to create a hazardous and dangerous condition. [¶] The hazardous and dangerous condition posed by second story floor was known, or in the exercise of ordinary and reasonable care would have been known, to Defendants, and each of them, in adequate time for a reasonably prudent person to warn of, or to repair and make safe, the dangerous and hazardous condition. [¶] As a proximate result of the negligence of Defendants, Plaintiff sustained injury to his person when he fell through the floor of the second story down to ground of the first story of the subject premises.” (Complaint ¶¶9-12.)

Plaintiff’s Complaint asserts the following causes of action:

(1) Negligence; and

(2) Negligence: Premises Liability

Relevant Procedural History

· On March 16, 2023, the Court denied Defendant K&M MEAT COMPANY, INC.’s (“Defendant”) Motion for Summary Judgment.

· On July 26, 2023, Defendant delivered a CCP §998 Offer to Compromise (“Offer”) for $60,000.00 to Plaintiff.

· On August 9, 2023, the Court heard and took under submission Defendant’s Motion for Reconsideration of its Motion for Summary Judgment.

· On August 16, 2023, Plaintiff accepted Defendant’s CCP §998 Offer.

· On August 22, 2023, Plaintiff attempted to file a written acceptance of Defendant’s CCP §§998 Offer (“Acceptance”), along with a proposed judgment, which the Court RECEIVED. The Acceptance and proposed judgment were filed in this Court, Dept. SE-C, where Defendant’s Motion for Reconsideration was under submission. However, under the Norwalk Court’s master calendar system, proposed judgments are typically sent to Dept. SE-F, the master calendar department, for review by Judge Rosales. That is what happened here, unbeknownst to this Court.

· On August 25, 2023, this Court granted Defendant’s pending Motion for Reconsideration of its Motion for Summary Judgment and its Motion for Summary Judgment.

· On August 28, 2023, Defendant served Plaintiff by email with its withdrawal and revocation of its Offer.

· On August 29, 2023, Defendant filed an Objection to Plaintiff’s Proposed Judgment Submitted in Conjunction with the Offer to Compromise.

· On September 26, 2023, Judge Rosales, sitting in Dept. SE-F, issued the following Order: “The Offer to Compromise and Acceptance under Code of Civil Procedure Section 998 and proposed judgment are denied.” (09/26/23, M.O.)

· On October 5, 2023, Plaintiff filed his Motion to Enforce Settlement Agreement pursuant to CCP §664.6 in Dept. SE-C.

· On February 29, 2024, the Court heard and denied without prejudice Plaintiff’s Motion to Enforce Settlement, and issued the following Order: “The Agreement states that Defendant offers to compromise the pending action as to Plaintiff for the sum of $60,000.00 in exchange for a dismissal with prejudice of the Complaint as to K&M Meat Company, Inc., Felix Goldber[g] Trustee of the Felix Goldber[g] Trust, and Felix Goldberg. The Agreement is silent as to whether payment of the $60,000 or a dismissal with prejudice is to occur first. [¶] The Motion is DENIED without prejudice. Neither party has substantially performed under the terms of the Settlement Agreement.” (02/29/24 Order.)

· On March 6, 2024, Plaintiff filed an ex parte application renewing his Motion to Enforce Settlement or, alternatively, requesting reconsideration of the Court’s denial of the motion without prejudice.

· On March 7, 2024, the Court on its own motion scheduled Plaintiff’s Motion for Reconsideration for hearing. (LeFrancois v. Goel (2005) 35 Cal.App.4th 1094, 1107.)

· On March 11, 2024, the Court requested briefing on the following issue: What binding effect, if any, does Judge Rosales’s September 26, 2023 order have on Plaintiff’s Motion to Enforce Settlement pending in this Court? If Judge Rosales’s September 26, 2023 order is binding upon this Court, should this Court allow Plaintiff an opportunity to seek reconsideration before Judge Rosales?

Merits

Plaintiff now moves for reconsideration of this Court’s February 29, 2024 Order, under CCP §664.6, arguing that “entry of judgment in accordance with the terms of the settlement agreement pursuant to [CCP §] 664.6 is not dependent on performance of the terms of the settlement agreement.” (Motion 1:10-12.) To support this argument, Plaintiff relies on a case not cited or argued in the initial Motion to Enforce Settlement Agreement filed on October 5, 2023— Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184-1185. Plaintiff argues that Hines authorizes the Court to enter judgment pursuant to the settlement regardless of whether the settlement’s obligations were performed or excused. Plaintiff further argues that “new facts” exist to warrant reconsideration under CCP §1008 because the Court “adopted a position not advanced by either party” in it’s February 29, 2024 Order.

In Opposition, Defendant argues: (1) Plaintiff’s Motion must be denied for failure to comply with CCP §1008; (2) the Hines case does not apply because Plaintiff cannot offer proof that he reached a resolution of the worker’s compensation carrier’s lien on his recovery (which was a condition precedent to any Settlement with Defendant); and (3) Plaintiff’s Proposed Judgment is inconsistent with the Express Terms of Defendant’s Offer because the Offer called for Plaintiff to file a dismissal of his claims against K&M and Mr. Goldberg, rather than for entry of judgment.

Motion for Reconsideration

Under CCP §1008, the Court may entertain a motion for reconsideration based on a showing of new or different facts, law, or circumstances. (CCP §1008.) “New or different facts” means facts that the moving party could not, with reasonable diligence, have discovered or produced it earlier. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) Under CCP §1008, the burden “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (Wall St. Network, Ltd. (2005) 135 Cal.App.4th 206, 212-213.) As a result, a party seeking reconsideration must provide a satisfactory explanation for failing to present the information at the first hearing, and motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 647, 690; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

Plaintiff does not meet the statutory requirements for a motion for reconsideration. Plaintiff does not explain why the Hines case could not, with reasonable diligence, have been argued in the original Motion to Enforce Settlement or at the February 29, 2024 hearing.

As indicated above, on March 7, 2024, this Court scheduled Plaintiff’s Motion for Reconsideration for hearing under its inherent authority to do so under LeFrancois v. Goel (2005) 35 Cal.App.4th 1094, 1107 (not CCP §1008).

Moreover, as the parties are aware, this Court denied Plaintiff’s initial Motion to Enforce Settlement Agreement without prejudice. Therefore, it was unnecessary for Plaintiff to have moved for reconsideration of that Order, and the statutory restrictions of CCP §1008 (e.g. different facts, law or circumstances) do not apply. That being said, here, the procedural status of the case has not changed. No Judgment has been entered, and no Request for Dismissal with prejudice as to K&M Meat Company, Inc., Felix Goldberg Trustee of the Felix Goldberg Trust, and Felix Goldberg has been filed/lodged with this Court.

The Court shall treat and construe Plaintiff’s arguments as a renewed Motion to Enforce the 998 Offer/Settlement, and not as a Motion for Reconsideration.

Renewed Motion to Enforce CCP §998 Offer/Settlement

Section 664.6 is Inapplicable

Under CCP §664.6, “If parties to a pending litigation stipulate, in a writing signed by the parties outside the presence of the court orally before the court, for settlement of the case, or part thereof, 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.” (Id.)

Here, there is no 664.6 clause in the Offer. Moreover, no Notice of Settlement was ever filed, and no dismissal was ever entered. Section 664.6 is inapplicable and this Court never lost jurisdiction over this case.

Plaintiff Failed to Timely Accept Defendant’s 998 Offer

Judgments entered pursuant to CCP §664.6 are distinguishable from compromise settlements entered in accordance with CCP §998. Unlike a stipulated judgment under section 664.6, “the court has no discretion to refuse to enter judgment in a properly accepted statutory offer to settle pursuant to section 998. [Citation.]” (California State Auto. Assn. Inter-Ins. Burau v. Sup. Ct. (1990) 50 Cal.3d 658, 665, fn. 3.)

The Offer requires payment to Plaintiff in the sum of $60,000.00 in exchange for: Plaintiff’s dismissal with prejudice of the Complaint as to K&M Meat Company, Inc., Felix Goldberg Trustee of the Felix Goldberg Trust, and Felix Goldberg; Plaintiff’s agreement that each party bear their own fees and costs; Plaintiff’s agreement that he satisfy any and all liens out of the proceeds paid to him, including the workers’ compensation lien asserted by Falls Lake Fire and Casualty Company; Plaintiff’s agreement that he will provide proof to Defendant that any workers’ compensation, MediCal or Medicare liens have been satisfied; Plaintiff’s agreement to release K&M Meat Company, Inc., Felix Goldberg Trustee of the Felix Goldberg Trust, and Felix Goldberg from and against any claims now asserted or alleged in the instant action; and Plaintiff’s agreement, promise and covenant not to sue K&M Meat Company, Inc., Felix Goldberg Trustee of the Felix Goldberg Trust, and Felix Goldberg for any claims now asserted or alleged in the instant action or damages arising out of the claims now asserted or alleged in the instant action.” (Bagumyan Decl., ¶2, Ex. A.)

Here, Plaintiff attempted to file his Acceptance of Defendant’s §998 Offer on August 22, 2023. A Proposed Judgment was attached to Plaintiff’s Acceptance documents. On August 29, 2023, Defendant filed an Objection to Plaintiff’s Proposed Judgment, arguing: (1) Defendant revoked its Offer on August 28, 2023; (2) Defendant’s Offer did not provide for entry of judgment, but rather a dismissal; and (3) Plaintiff’s Acceptance was invalid because it failed to satisfy all the conditions of the Offer. On September 26, 2023, Judge Olivia Rosales ruled that: “The Offer to Compromise and Acceptance under Code of Civil Procedure Section 998 and proposed judgment are denied.” (09/26/23 M.O.)

Plaintiff argues that since Defendant has failed to perform (i.e., pay Plaintiff $60,000.00 under the CCP §998 Offer) Plaintiff is entitled to entry of a judgment versus a dismissal of the action. However, the Offer expressly states that voluntary dismissal is to occur, not entry of a judgment. Although CCP §998(b)(1) uses the phrase “enter judgment”, a dismissal with prejudice is the equivalent to a judgment for purposes of a valid 998 Offer. (On-Line Power, Inc. v. Mazur (2007) 1079, 1085.) As the 998 Offer is a contract, the parties govern the nature of the “judgment” to be entered. (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 184.) The parties can agree for the entry of judgment in favor of the plaintiff or for the voluntary dismissal of the action. (Id.; Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 905-07.)

The Court finds that Plaintiff failed to timely accept Defendant’s 998 Offer before Defendant revoked said Offer on August 28, 2023. As indicated above, Defendant’s § 998 Offer did not include any verbiage pertaining to entry of judgment. Thus, the Proposed Judgment submitted by Plaintiff on August 22, 2023 is inconsistent with the Offer. By attaching the Proposed Judgment to the Acceptance, Plaintiff did not manifest actual acceptance of Defendant’s § 998 Offer. As such, the Acceptance and proposed judgment were properly denied by Judge Rosales.

The time to file Acceptance of Defendant’s §998 Offer has lapsed. Where there is no timely Acceptance of Defendant’s §998 Offer, this Court cannot enforce the parties’ attempted settlement under CCP §998. The Motion is DENIED.

Having granted Defendant K&M’s Motion for Summary Judgment on August 25, 2023, against Plaintiff, the Court will enter judgment in favor of Defendant K&M.