Judge: Melvin D. Sandvig, Case: 21STCV04128, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV04128    Hearing Date: October 10, 2022    Dept: F47

Dept. F47

Date: 10/10/22                                            TRIAL DATE: 3/6/23

Case #21STCV04128

MOTION TO ENFORCE SETTLEMENT AGREEMENT

Motion filed on 8/31/22. 

MOVING PARTY: Plaintiff Orlee Bakhshizandeh

RESPONDING PARTY: Defendant Crown Castle Fiber LLC

NOTICE: ok

RELIEF REQUESTED: An order enforcing the settlement agreement between Plaintiff Orlee Bakhshizandeh and Defendant Crown Castle Fiber LLC pursuant to CCP 664.6, Civil Code  1633.1, et seq., and CRC 2.257(a).

RULING: The motion is denied.     

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

This action arises out of a trip and fall incident.  Plaintiff Orlee Bakhshizandeh (Plaintiff) alleges that on or about 9/19/20, while participating in a cross-fit class, she was jogging on the sidewalk at or near 9301 Shirley Avenue in Los Angeles, California when she tripped and fell over a vault cover causing her to sustain severe bodily injuries.  The vault cover where Plaintiff tripped and fell is located on a public sidewalk near a fence on which a sign for Defendant Crown Castle Fiber LLC (Crown Castle) is located.      

Plaintiff claimed that Crown Castle negligently maintained, managed, controlled and operated the surrounding area and that Crown Castle failed to prevent a dangerous condition, the vault covers.  Further, Plaintiff claimed that Crown Castle negligently failed to take steps to either make the condition safe or to warn her about the dangerous condition.  On 2/2/21, Plaintiff filed this action against Crown Castle and others alleging causes of action for: negligence and (2) premises liability – willful failure to warn.    

On 4/4/22, Crown Castle filed and served its motion for summary judgment.  The motion was originally scheduled for hearing on 6/27/22 in Department 29 in the Spring Street Courthouse. However, when the case was transferred to Department F47 in the Chatsworth Courthouse, the hearing date was rescheduled to 8/2/22.  The 8/2/22 hearing date was continued to 8/18/22 due to Plaintiff’s failure to file all of the documents in support of her opposition to the motion, although such documents were served on Crown Castle.  (See 8/2/22 Minute Order). 

On 8/18/22, the Court adopted its tentative ruling and granted Crown Castle’s motion for summary judgment and denied Plaintiff’s oral motion to continue the hearing on the motion for summary judgment.  (See 8/18/22 Minute Order, pp.1-6).  Plaintiff’s oral motion to continue the hearing was based on a claim that the parties had entered a settlement agreement the day before the hearing.  (See Motion, p.3:17-21).

On 8/25/22, the Court denied Plaintiff’s ex parte application/motion to enforce the purported settlement agreement on the ground that Plaintiff had not established that exigent circumstances existed to hear the matter ex parte.  (See 8/25/22 Minute Order).  The Court noted that Plaintiff could file a noticed motion for the same relief.  Id.

On 8/31/22, Plaintiff filed and served the instant motion seeking an order enforcing the settlement agreement between Plaintiff and Crown Castle pursuant to CCP 664.6, Civil Code  1633.1, et seq., and CRC 2.257(a).  This motion was originally set for hearing on 9/28/22.  On 9/22/22, the Court continued the hearing date to 10/10/22 and ordered that all oppositions and replies were due to the 9/28/22 hearing date.  (See 9/22/22 Notice of Continuance & Order).  On 9/14/22, Crown Castle filed and served an opposition.  On 10/3/22, Plaintiff filed (served on 10/2/22) her reply to the opposition.  The filing and service of the reply was untimely pursuant to the Court’s 9/22/22 order.  Crown Castle has objected to the reply on the ground that it was not timely filed and served.  Despite the late filing and service of the reply, it was considered by the Court.  See CRC 3.1300(d).      

ANALYSIS

CCP 664.6 provides:

(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.

(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.

A settlement agreement is a contract; therefore, the legal principles which apply to contracts, such as mutual assent, generally apply to settlement agreements.  Weddington Productions, Inc. (1998) 60 CA4th 793, 810-811.  To be enforceable under CCP 664.6, a settlement agreement must contain all material terms.  Hines (2008) 167 CA4th 1174, 1182.  Plaintiff contends that email exchanges between counsel for the parties constitute a valid written settlement agreement which may be enforced under CCP 664.6.  However, the emails do not contain all of the material terms of an enforceable contract.  Rather, they merely set forth the amount offered and purportedly accepted in exchange for a release of all claims against Crown Castle.  (See A. Zeesman Decl. and D. Zeesman Decl. and Ex.A and B attached thereto).  The purported acceptance by Plaintiff’s counsel even requests that Crown Castle’s counsel send over a release memorializing the terms which indicates the material terms of the release were never agreed upon.  Based on the purported written settlement agreement, it cannot be determined whether the parties agreed that each would bear their own costs; whether the settlement included a waiver of Civil Code 1542, etc. which would be material to any settlement.  

Additionally, the purported contract does not indicate that the parties agreed that the Court would retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.  See CCP 664.6(a).

Even if Defendant’s counsel’s email sent at 11:35 a.m. on  8/17/22 is deemed to include the necessary material terms to form a valid contract once accepted by Plaintiff and the parties were not required to agree that the Court retain jurisdiction, Defendant’s counsel revoked that offer before it was accepted.  Even if an offeror specifies in the offer a definite time period within which acceptance may be made, the offeror may still revoke the offer within that time period.  Grieve (1930) 211 Cal 77, 79; Civil Code 1586; T.M. Cobb Co. (1984) 36 C3d 273, 278.  On 8/17/22, at 1:57 p.m., Crown Castle’s counsel sent an email to Plaintiff’s counsel wherein he stated that “[i]n light of the tentative ruling, we need to confirm with our client whether the $15,000 is still on the table.”  (See A. Zeesman Decl. ¶4, Ex.D, pp.1-2; Zwarg Decl. ¶¶12-16, Ex.B, C, pp.013-014).  Plaintiff’s counsel did not send her acceptance of the 11:35 a.m. offer until 2:11 p.m. on 8/17/22, after the original offer was revoked.  Id.  Although Crown Castle’s counsel’s email did not use the term “revoked,” it sufficiently communicated, before Plaintiff’s acceptance, that the original $15,000 offer was no longer available as its availability now had to be confirmed with the client based on the Court’s tentative ruling to grant the motion for summary judgment.   

CONCLUSION

Based on the foregoing, the Court finds that Plaintiff and Crown Castle did not enter a settlement agreement.  Therefore, there is no settlement agreement to enforce and the motion is denied.