TENTATIVE RULING

Defendant Jonathan Bolerjack’s Motion to Enforce Settlement Agreement and for an Order Dismissing the Entire Action Filed by Plaintiff Mac Anderson and All Causes of Action in Their Entirety with Prejudice is DENIED.

Defendant Jonathan Bolerjack to give notice. 

REASONING

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or 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.” (Code Civ. Proc., § 664.6.) 

Defendant Jonathan Bolerjack (“Defendant”) moves the Court for an order deeming his written settlement agreement with Plaintiff Mac Anderson (“Plaintiff”) as binding and enforceable and for an order dismissing Plaintiff’s complaint with prejudice. Plaintiff has not filed an opposition to the motion.

Defendant presents evidence that defense counsel and Plaintiff’s counsel engaged in several settlement teleconferences, defense counsel sent Plaintiff’s counsel an email detailing the core and material terms of Defendant’s settlement proposal, and Plaintiff’s counsel responded to that email on September 7, 2022, saying, “We have a deal. Please prepare the necessary settlement documents and forward to me for my attention.” (Mot., Trauben Decl. ¶¶ 14-20, Ex. B.) On September 8, 2022, in response to this email, defense counsel sent a draft settlement agreement to Plaintiff’s counsel, but Plaintiff’s counsel did not respond to further communication and did not provide a signed copy of the agreement. (Mot., Trauben Decl. ¶¶ 21-27, Ex. C.)

Put simply, the Court lacks a basis to enforce the purported settlement here. First, the proposed settlement terms sent to Plaintiff’s counsel by defense counsel by email on September 7, 2022, include no provision for the Court to retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement pursuant to Code of Civil Procedure section 664.6, and any statement that the settlement agreement would “contain ordinary terms including General Releases” is insufficient to constitute an agreement for the Court to retain jurisdiction.

Second, it is well established that “a request that jurisdiction be retained until the settlement has been fully performed must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves, not by their attorneys of record, their spouses, or other such agents.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.)

Third, for an electronic signature to satisfy the requirement under Code of Civil Procedure section 664.6 that the agreement be signed by the parties, there must be evidence that the parties agreed to conduct a transaction by electronic means and that the signing party intended with his or her printed name to sign the electronic record, in accordance with California Uniform Electronic Transactions Act. (See J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 989-991.) It is clear from the email response that Plaintiff’s counsel intended to sign a formal settlement agreement received after the email response, not that Plaintiff’s counsel intended that email response to constitute the electronic signature to the agreement.

Fourth, there is no evidence here that Plaintiff authorized his attorney, expressly or impliedly, to bind him to a settlement agreement. (See Murphy v. Padilla (1996) 42 Cal.App.4th 707, 717.) Accordingly, Defendant Jonathan Bolerjack’s Motion to Enforce Settlement Agreement and for an Order Dismissing the Entire Action Filed by Plaintiff Mac Anderson and All Causes of Action in Their Entirety with Prejudice is DENIED.