Judge: Lynne M. Hobbs, Case: 22STCV37304, Date: 2023-11-06 Tentative Ruling

Case Number: 22STCV37304    Hearing Date: March 19, 2024    Dept: 30

SVEN PETER KLIMASCHKA vs EMILY MESTA ESCALANTE, et al.

TENTATIVE

Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication is GRANTED. Moving party to give notice.

Background

Sven Klimaschka (Plaintiff) filed a Complaint on November 29, 2022 alleging three causes of action against Emily Mesta Escalante (Emily) and Rudy Mesta (Rudy) after an automobile collision. On June 11, 2022, Plaintiff was the driver of a motorcycle, and alleges that Emily drove erratically and made an unsafe lane change, striking Plaintiff’s motorcycle and causing injury. (Complaint, ¶ 16.)

The Complaint alleges (1) motor vehicle negligence, (2) negligent entrustment, and (3) negligence per se. The motion now before the Court is Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication (the Motion). Plaintiff opposes the Motion, and Defendants file a reply.

Discussion

Legal Standard

“The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Therefore, when the moving party is the plaintiff, “plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra at 850.) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Analysis

The Motion is based off of an offer of settlement. Defendants argue that they accepted the settlement, and therefore have a contract and use this Motion to enforce the contract. (Gorman v. Holte (1985) 164 Cal.App.3d 984, 988-989.) Plaintiff contends that the settlement offer was not properly accepted, and therefore a contract does not exist. As explained below, the Court agrees that an offer was made and accepted, and that a contract therefore exists. Accordingly, the Motion is granted.

A. The Offer

“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” (Rest.2d, § 24.) This definition makes it clear that the offeree may create a contract without further action by the offeror. (WITSUM CH I § 125.)

Here, there is no dispute between the parties that a settlement offer was made. (See Plaintiff’s Response to Separate Statement of UMF ISO Motion for Summary Judgement, UMF 1.) Attached to the Declaration of Nicholas Williams (Williams Decl.) is a copy of the Settlement Demand Letter (the Agreement). (Williams Decl., Exh. A). The Agreement outlines the terms, the consideration, and the manner of acceptance in which Defendants may accept the terms and conditions of the Agreement. As pertinent to the parties' contentions here, the relevant portion is reproduced below:

TERMS OF SETTLEMENT

1. Your notifying us in writing of your acceptance of our settlement demand prior to the expiration of the time stated herein – July 20, 2022.

2. Your furnishing us with a copy of the complete insurance policy that covers your insured at the time of the accident, including declaration pages;

3. Your furnishing us with the attached Declaration re Assets and Employment, signed by your insured (Exhibit “2”);

4. Your furnishing us with the proposed release and other closing documents for our review no later than July 20, 2022 at 5:00 p.m.

5. A prompt exchange of the settlement draft made payable jointly and only to our client and our firm, for the fully executed release and settlement documents following our review.

(Id., at Exh. A, italics removed.)

The primary contention here by Plaintiff, is that acceptance was a qualified acceptance and thus, not a proper acceptance that would create a contract.

B. The Acceptance

Acceptance is defined as an “offeree's assent, either by express act or by implication from conduct, to the terms of an offer in a manner authorized or requested by the offeror, so that a binding contract is formed.” (Black’s Law Dictionary [11th ed. 2019].) “An acceptance must be absolute and unqualified…” (WITSUM CH I § 183.)

Plaintiff argues that because the acceptance (1) requested an open extension to comply with the terms of the offer and (2) did not include the entire insurance policy (the Policy) nor include the declaration regarding assets and employment (the Declaration), the acceptance was qualified. Defendant argues that neither the Policy nor the Declaration themselves had any specific deadline, and that requesting an open extension in order to provide the Declaration is not inconsistent with the terms of the offer. (Reply, 3:17-19.) Under the Terms of Settlement section of the Agreement, Plaintiff lists the five terms, however, term two regarding the Policy, and term three regarding the Declaration conspicuously do not have an explicit deadline, as opposed to term one regarding the acceptance and term four regarding the proposed release and other closing documents. It is worth noting that each page of the document contains a header which states:

INSURANCE POLICY LIMITS

SETTLEMENT DEMAND LETTER

TIME SENSITIVE – FOURTEEN (14) DAY TIME LIMIT

However, the Agreement’s drafter chose to reiterate the deadline on only two of the five terms under the Terms of Settlement section. Here is where Defendant argues that at minimum, there exists ambiguity as to the deadline for the Policy and the Declaration. Defendant argues that the deployment of the doctrine of contra proferentem – the rule that ambiguity in a contract should be construed against the drafter – is appropriate. (Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th 967, 978.) The Court agrees.

The Court finds its basis in caselaw that has ruled similarly in like situations. In CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272 (“CSAA”), an automobile insurer of a driver involved in a single-car collision brought suit against the passenger of the vehicle who also suffered injury. The suit alleged breach of agreement to settle the personal injury claim. When the insurer filed summary judgment, the court granted it, and on appeal affirmed. The court in CSAA focused in on the formation of the settlement agreement, stating that an objective observer would conclude that from the parties communications that the intention was to settle the passenger’s personal injury claim. (CSAA, supra, at 277.) The passenger’s attorney communicated to CSSAA an offer that was to be accepted within 21 days, CSAA timely accepted the offer. (Id.) The passenger’s attorney argued that the acceptance was not proper because the agreement had not been reduced to writing, the CSAA Court rejected that argument, instead focusing on the intent of the parties.

Likewise, in J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1 (“JBB”) an LLC’s summary adjudication was granted and affirmed on appeal regarding whether email communications between the parties constituted acceptance of a binding settlement agreement. The defendants in JBB claimed that no contract came into existence because the mutual consent requirement was not satisfied because the purported acceptance of the offer was not absolute and unqualified. (JBB, supra, at 9.) The JBB Court disagreed. After the plaintiffs submitted their “LAST AND FINAL OFFER” the plaintiffs required a yes or no on the proposal, anything less would equate to litigation. After defendants’ internal communications cleared up confusion, defendants communicated back to plaintiff “I accept”. The Court commented that even though there was settlement paperwork to review and finalize, “[t]he foregoing communications permit only one reasonable conclusion—the parties agreed to a binding settlement on July 5, 2013.”

The Court can analogize here. Plaintiff’s counsel sent a settlement offer on July 6, 2022 that requested acceptance by July 20, 2022. On July 20, 2022, Defendant accepted and enclosed a proposed release and insurance policy. The acceptance and the proposed release were the only items within the terms of settlement that contained a deadline. Requesting more time to gather the documents that contained no deadline is not a qualified acceptance, and it is not necessarily true that any communication other than an unequivocal acceptance is a rejection. (Guzman v. Visalia Community Bank (1999) 71 Cal.Ap.4th 1370, 1376. Here, Defendant’s acceptance on July 20, 2022, operates as just that, an acceptance. Plaintiff fails to offer evidence to the contrary, therefore, the Motion is granted.

Conclusion

Accordingly, Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication is GRANTED.