SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff, Christine Kang (“Kang”), individually and as Administrator for the Estate of Lisa Sakamoto, and Yung Soo Kang (collectively, “Plaintiffs”) filed this action against Defendant, Maxwell Cheng (“Defendant”) for wrongful death arising from an automobile v. pedestrian collision.   

Defendant now moves for summary judgment pursuant to CCP § 664.6 on the grounds that Plaintiffs entered into an enforceable settlement agreement with Defendant to settle their claims for the policy limit, and that judgment should be entered pursuant to the terms of the settlement.  

Plaintiffs oppose the motion, and Defendant filed a reply. 

 

A. Moving Argument  

Defendant argues that Plaintiffs agreed to settle their claims arising from the subject accident in exchange for the policy limit pursuant to a policy limit demand letter accepted by Defendant on August 3, 2022. Defendant avers that on June 10, 2022, Interinsurance Exchange of the Automobile Club (“Exchange”) Claims Service Representative Al Oca had a personal telephone conversation with Plaintiff’s counsel, in which the parties discussed Exchange’s previous tender of the policy limits to Plaintiff’s former counsel on May 4, 2022, and Exchange’s tender was reiterated.  

Thereafter, on July 7, 2022, Plaintiffs failed the instant action against Defendant. On July 25, 2022, Plaintiff’s counsel served a Policy Limit Demand letter directly to Defendant to settle the case for the policy limit. Defense counsel, retained by Exchange to represent Defendant, accepted the policy limit demand by letter dated August 3, 2022. On August 4, 2022, Plaintiff’s counsel’s assistant sent defense counsel payment instructions. However, on August 5, 2022, Plaintiff’s counsel sent a letter claiming that the policy limit offer was issued in error and without authorization. Defendant argues that the policy limit offer is valid and enforceable because there is no legal basis for invalidating the agreement.   

 

B. Opposing Argument  

Plaintiffs argue Plaintiffs’ counsel had no authority to settle for the policy limits. Plaintiffs contend their prior counsel informed them of Exchange’s policy limit tender, which Plaintiffs declined, and thereafter terminated prior counsel’s representation in the matter. Plaintiffs aver they have never been interested in Defendant’s $100,000 policy limit both before and after filing suit, nor did Plaintiffs authorize their current counsel to settle for $100,000 on their behalf.  

 

C. Reply Argument 

Defendant contends it was a strategy by Plaintiff to send the policy limit demand to Defendant directly, who was unrepresented at the time, to “open” the policy, and reiterate that the policy limit demand was timely accepted, and thus the case has settled. 

 

II. Request for Judicial Notice 

Defendant requests the Court take judicial notice of Plaintiffs’ complaint, the proof of service filed by Plaintiffs reflecting service of the summons and complaint, and Defendant’s Answer filed in this matter. The requests are granted pursuant to Evidence Code § 452(d).   

 

III. Evidentiary Objections 

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66.  

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

 

B. Code of Civil Procedure section 664.6 

Settlement agreements may 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. (Nicholson v. Barab (1991) 233 Cal. App. 3d 1671, 1681.) 

Pursuant to CCP § 664.6: “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.” 

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.  

(CCP §664.6(b).)   

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute.  (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)  Thus, to enforce a written settlement agreement under CCP section 664.6, the following three elements must be met: (1) the parties must have come to a meeting of the minds on all material points; (2) there must be a writing that contains the material terms of the agreement; and (3) the writing must be signed by the parties.  (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797-98.) “If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.”  (Civ. Code, § 1657; see also Patel v. Liebermensch (2008) 45 Cal.4th 344, 352, fn. omitted [“In the absence of a specified time of payment, a reasonable period is allowable under Civil Code section 1657.”].)    

Here, on July 25, 2022, Plaintiff’s counsel sent a policy limits demand letter, signed by counsel, to Defendant. (Def. Exh. D.) The demand letter contained the following language: “Please be advised that Plaintiffs, Christine Kang, Christine Kang as the administrator for the Estate of Lisa Sakamoto, and Yung Soo Kang hereby make a global policy limit demand to settle this case. This demand will remain open until August 08, 2022 at 12 :00 p.m. (noon).” 

Later, on August 3, 2022, defense counsel sent a letter entitled “Acceptance of Policy Limit Demand of July 25, 2022,” which acknowledged receipt of the global policy limit demand, and agreed to accept the demand for the policy limits of $100,000. (Def. Exh. E.) Plaintiff’s counsel then sent an email on August 4, 2022 to defense counsel, instructing that the settlement draft be made payable to Plaintiff’s counsel and Plaintiff. (Def. Exh. F.) However, on August 5, 2022, Plaintiff’s counsel sent a letter stating the July 25, 2022 “was issued in error and without authorization from the Plaintiffs in this matter” and that the matter was not settled. (Def. Exh. H.) 

Defendant does not attach any evidence of a settlement agreement signed by Plaintiffs. The policy limit demand letter and the follow-up email with instructions for payment is insufficient to meet the strict compliance standard of CCP § 664.6, especially when Plaintiffs’ counsel subsequently stated they had no authority to settle for the policy limit. (Gallo v. Getz (1988) 205 Cal.App.3d 329, 333 [A letter from a plaintiff's attorney to a defendant's attorney confirming an oral settlement agreement, which is signed by plaintiff's attorney but not by plaintiff, is not a written stipulation for settlement within the meaning of section 664.6.]. Further, the Court may not enforce a settlement under Section 664.6 where there is no “writing signed by the parties.” The term “parties” under section 664.6 means the litigants themselves, not their attorneys.¿ (Levy v. Superior Court¿(1995) 10 Cal.4th 578, 586 [holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”].). The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought.¿ (J.B.B. Investment Partners, Ltd. v. Fair¿(2014) 232 Cal.App.4th 974, 985.) Additionally, “Since settlement so directly affects the party's “substantial rights,” it [is] considered to be a serious step that requires the party's knowledge and express consent.” (Robertson v. Chen (1996) 44 Cal. App. 4th 1290, 1292, citing to Levy v. Superior Ct., (1995) 10 Cal. 4th 578.) Here, the Court is unable to find that Plaintiffs expressly consented to settle for the policy limit. Plaintiff Kang declares that she never authorized a settlement demand or acceptance for $100,000, and made that clear to her current counsel that she would not authorize a $100,000 settlement. (Kang Decl. ¶¶ 7, 9-10.)  

Based on the foregoing, Defendant has not met his burden establishing that a valid and enforceable contract was formed. Even if Defendant did meet his burden, there remains issues of material fact as to whether Plaintiffs authorized their counsel to settle when tender of the same policy limit by Exchange was previously rejected. Defendant calling into question the veracity of Plaintiff’s representation of no authority is, in itself, a factual material issue to be determined by a fact finder, and thus not appropriate for disposition by way of summary judgment. Further, there is no evidence of writing signed by the parties to enforce settlement pursuant to CCP § 664.6.  

 

V. Conclusion  

Accordingly, Defendant’s motion for summary judgment, or in the alternative to enforce settlement pursuant to CCP § 664.6, is DENIED.