Judge: Lisa R. Jaskol, Case: 20STCV39795, Date: 2023-09-20 Tentative Ruling

Case Number: 20STCV39795    Hearing Date: December 19, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows.  

BACKGROUND 

On October 16, 2020, Plaintiff Hongde Cui (“Plaintiff”) filed this action against Defendants Ting Kwan Chan (“Chan”), Daniel Yanez (“Yanez”), and Does 1-50 for motor vehicle tort and general negligence. 

On February 3, 2022, Chan filed an answer and a cross-complaint against Cross-Defendants Yanez and Roes 1-10 for implied indemnity, total indemnity, declaratory relief and apportionment of fault. 

On March 7, 2022, Yanez filed an answer and a cross-complaint against Cross-Defendants Chan and Roes 1-25 for indemnity, apportionment of fault and declaratory relief. 

On July 17, 2023, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel. 

On October 5, 2023, Chan filed a motion to enforce settlement to be heard on December 19, 2023.  No opposition has been filed. 

Trial is currently scheduled for February 2, 2024. 

PARTY’S REQUEST 

Chan requests that the Court enforce a settlement agreement. 

LEGAL STANDARD                   

Code of Civil Procedure section 664.6 provides in part: 

“(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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. 

“(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following: 

“(1) The party. 

“(2) An attorney who represents the party. 

“(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf.” 

(Code Civ. Proc., § 664.6, subds. (a), (b).) 

In deciding motions made under section 664.6, courts “must determine whether the parties entered into a valid and binding settlement.”  (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.)  On a motion to enforce a settlement under section 664.6, courts have the power to decide disputed facts and to interpret the agreement.  (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566; L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶¶ 12:977–12:978.5, pp. 12(ll)-139 to 12(ll)-140.) Courts may receive evidence, determine disputed facts including the terms the parties previously agreed on, and enter the terms of a settlement agreement as a judgment, but they may not create new material terms. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) 

DISCUSSION 

Chan acknowledges that the parties have not reduced their purported settlement to writing or placed it orally on the Court’s record for purposes of Code of Civil Procedure section 664.6.  Nonetheless, Chan asks the Court to enforce the purported settlement under general principles of contract law. 

“The statutory procedure for enforcing settlement agreements under section 664.6 is not exclusive. It is merely an expeditious, valid alternative statutorily created.”  (Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1681.)  “Settlement agreements may also be enforced by motion for summary judgment, by a separate suit in equity or by amendment of the pleadings to raise the settlement as an affirmative defense.  Settlement agreements not enforceable under Code of Civil Procedure section 664.6 are governed by the legal principles applicable to contracts in general. Thus, unless a writing is required by the statute of frauds, oral settlement agreements are enforceable in the same manner as oral agreements in general.”  (Ibid.) 

Applying general contract principles, Chan has not presented evidence establishing the existence of a settlement agreement.  As evidence of offer and acceptance, Chan has provided a declaration by Chan’s counsel Alexandria Hopson stating: (1) “On October 19, 2022, Plaintiff’s counsel made a verbal demand to Defendants for the policy limit” and (2) “On November 8, 2022, former Defense Counsel for Chan contacted Plaintiff’s counsel stating that he would accept Plaintiff’s demand for the policy limit. He subsequently cancelled all pending subpoenas based on this settlement agreement.” (Hopson Dec. ¶¶ 4-5.) 

Hopson states that, “if sworn as a witness, [she] could competently testify to the . . . facts [in her declaration], from [her] own personal knowledge.”  (Hopson Dec. ¶ 1.)  Yet aside from the formulaic claim of personal knowledge, Hopson does not state facts showing that she has personal knowledge of the statements by Plaintiff’s counsel and Chan’s former counsel recited in her declaration.  Because Hopson lacks personal knowledge, her declaration does not demonstrate the existence of an agreement to settle the case. 

Chan also provides copies of communications between the parties’ counsel referring to a “settlement” the parties previously agreed on, but these communications do not establish the terms of the alleged settlement.  (See Exhs. A, B, C, D.) 

For the same reasons, Chan has not established a promise which could be enforced “under the equitable doctrine of promissory estoppel.”  (Motion p. 6.) 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Ting Kwan Chan’s motion to enforce an alleged settlement agreement with Plaintiff Hongde Cui. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.