Judge Ralph C. Hofer, Case 19BBCV00305 2022-09-09 Tentative Ruling

Plaintiffs Akop Sogomonyan and Tsovinar Sogomonyan bring this action for malicious prosecution, alleging that their neighbors, defendants Anait Orudzhyan and Hamazasp Kiramijyan filed a previous action against plaintiffs, in which they were represented by defendant Karapet Zakaryan, who was employed by defendant KAASS PC, which was overseen and directed by its principal, defendant Armen Kiramijyan, Esq., the son of defendants Orudzhyan and Kiramijyan.

Plaintiffs allege that the previous action was brought without probable cause and initiated with malice against plaintiffs, as it involved a dispute concerning plaintiffs’ installation of a new fence and removing existing fences which a land survey revealed were located on plaintiffs’ property. Plaintiffs allege that defendants falsely claimed plaintiffs’ fence belonged to them, was located on defendants’ property, and sought damages, litigating the matter for more than two years before finally dismissing the complaint with prejudice.

“Plaintiff’s Motion to Enforce Settlement Agreement is DENIED. Plaintiffs have failed to establish that there is in this matter a settlement which satisfies the statutory requirements of CCP § 664.6, as it is not established that there is “a writing signed by the parties outside the presence of the court,” as there is no

“Counsel are ordered to serve and file Supplemental Briefs specifically addressing the issue in CCP Section 664.6(B)(2). Briefing Schedule is as follows: Opening brief is to be filed and served by 07/22/2022. Opposition brief is to be filed and served by 08/19/2022. Reply brief is to be filed and served by 09/02/2022.”

Plaintiff seeks to enforce a settlement agreement entered into between plaintiffs Akop Sogomonyan and Tsovinar Sogomonyan and defendants Hamazasp Kiramijyan, Anait Orudzhyan, Armed Kiramijyan, Karapet Zakaryan and KAASS PC following a mandatory settlement conference before Judge Sinanian on April 26, 2022. Plaintiff indicates that the parties reached agreement signed by their counsel via email the following day, on April 27, 2022, as confirmed by correspondence from Judge Sinanian.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court...for settlement of the case,... 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.”

In this case, plaintiffs indicate that the parties entered into a written settlement agreement signed by their counsel via email on April 27, 2022. Plaintiffs’ counsel’s declaration indicates that the parties attended the settlement conference remotely by Zoom and negotiated back and forth concerning the monetary amount to settle upon, with no other terms or conditions discussed. [Vardapour Decl., paras. 3, 4]. The declaration explains that at around 4:30 pm, having run out of time, the parties agreed to (1) receive Judge Sinanian’s “Mediator’s Proposal,” for the settlement amount, and (2) have until 4 pm the following day to either accept or reject the proposal via email transmitted only to Judge Sinanian. [Vardapour Decl., para. 4].

Plaintiffs indicate that before 4 pm on April 27, 2022, all parties, through their attorneys, emailed their written signed acceptances of the Mediator’s Proposal directly and only to the mediator pursuant to the stipulated terms. Plaintiffs submits the email, which was sent by plaintiffs’ counsel, which plaintiffs’ counsel indicates is intended to by counsel’s signature accept the settlement agreement. [Vardapour Decl., para. 7]. That email states, “Plaintiffs accept the mediator’s proposal of $80,000 payable by the defendants to the plaintiffs within 30 days of execution.” [Vardapour Decl., para. 7, Ex. 1]. The supplemental brief filed by defendants points out that under the Uniform Electronic Transactions Act, an electronic signature can satisfy a signature requirement.

Civil Code section 1633.2(h) defines “electronic signature” to mean “an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.”

“(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

(b) The effect of an electronic record or electronic signature attributed to a person under subdivision (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.”

As noted above, counsel for plaintiffs has submitted a declaration indicating that the email attributable to plaintiffs’ counsel was intended by counsel’s signature to accept the settlement agreement. [Vardapour Decl., para. 7]. It would appear that under the circumstances, including the agreement made before Judge Sinanian that the parties would accept or reject the “Mediator’s Proposal” via email transmitted to Judge Sinanian, the email transmission is sufficient to show that plaintiffs’ attorney entered into a writing signed outside the presence of the court for settlement of the case.

Both sides have accepted the court’s “mediator proposal” to settle the above dispute for $80,000, payable within 30 days of execution of a written settlement agreement. Please proceed to draft the agreement and file your notice of settlement to enable Judge Hofer to vacate all future dates.

Plaintiffs argue that the parties accordingly entered into a settlement agreement, which included none of the terms that defendants now want to add, such as a confidentiality clause, and a clause limiting disparagement in the future as between the parties.

The court was previously concerned that plaintiffs had not established that either party accepted the settlement in a writing signed outside the presence of the court, as required under the statute, and particularly that no writing signed by defendants, or their attorney had been submitted. Plaintiffs at the hearing argued that a writing could be established based on a signature of counsel, under CCP section 664.6 (b), which was amended in 2021 to provide that a writing is “signed by a party” if it is signed by “(2) An attorney who represents the party.”

Plaintiffs rely on an email confirming acceptance of a proposal by Judge Sinanian, which plaintiffs have not submitted to the court. Any email confirming such an acceptance would evidently be in the sole possession of defendants’ counsel and Judge Sinanian, as evidently the parties were to notify only Judge Sinanian of their acceptance or rejection of the proposal. Defendants in opposition do not submit the email purportedly accepting the proposal of Judge Sinanian, so there is no direct evidence before this court of a writing signed by defendants or their attorney outside the presence of the court.

Plaintiffs in the supplemental opposition argue that because Judge Sinanian stated that “[b]oth sides have accepted the court’s ‘mediator proposal’ to settle the above dispute for $80,000, payable within 30 days of execution of a written settlement agreement,” this is sufficient to show the existence of a writing signed by defendants outside the presence of the court for settlement of the dispute.

The issue remains whether the court in this case, without having been provided a copy of the writing purporting to accept the settlement by defendants, can find that substantial evidence supports the existence of such a writing. See Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1116 (“A trial court’s determination of factual matters on a motion to enforce settlement is reviewed for substantial evidence.” Citing Burckhard v. Del Monte Corp. (1996) 48 Cal.App.4th 1912, 1916).

As noted above, while the court does not have before it a copy of the email sent by defendants via counsel, there is evidence that such an email was sent, as Judge Sinanian acknowledged that he received such writings accepting the proposal from both sides. [Vardapour Decl. para. 8, Ex. 2]. The court also has before it evidence that the parties had agreed to the procedure for acceptance of the settlement by an email directed only to the settlement judge. [Vardapour Decl., para. 4]. The court file also shows that counsel for defendants filed a Notice of Settlement on April 28, 2022, further evidencing counsel and defendants’ intent to be bound by the agreement.

Defendants in the opposition do not contradict this evidence, and have not submitted any evidence, such as the email itself, to show that there was no intent at the time defendants’ counsel sent the email accepting the proposal to Judge Sinanian to by that means accept the settlement as proposed. Defendants’ counsel does not submit a declaration indicating that there was an intent contrary to the one supported by the evidence submitted by plaintiffs, along with the court file. Presumably, if defendants’ counsel had a contrary understanding or intent at the time, counsel could easily submit such contrary evidence.

The case law relied upon by defendants, J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, involved a situation where the court found that there had been no agreement in advance to conduct a settlement by electronic means before the purported agreement was made via e-mail. Here, there is uncontroverted evidence that the parties agreed to accept or reject a specific proposal in advance of the deadline agreed to by the parties for such acceptance by email to the settlement judge. Judge Sinanian has stated unequivocally that the email acceptance by defendants was received.

Considering the context and surrounding circumstances at the time of the acceptance of the settlement agreement, the court finds that substantial evidence supports a finding that the parties entered into a writing signed outside the presence of the court for the settlement of this matter.

Defendants argue that the settlement was contingent on the drafting of a settlement agreement acceptable to both sides and continue to argue in the supplemental briefing that defendants want a settlement agreement, but one with a confidentiality provision.

The Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court may on a section 664.6 motion receive evidence, determine disputed facts and enter the terms of a settlement agreement as a judgment, but may not create the material terms of a settlement as opposed to deciding what terms the parties themselves agreed to. Weddington, at 810. The trial court’s determination with respect to interpretation of the settlement agreement will not be disturbed on appeal if supported by substantial evidence. Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.

Here, the uncontroverted evidence is summarized by Judge Sinanian as follows, “Both sides have accepted the court’s ‘mediator proposal’ to settle the above dispute for $80,000, payable within 30 days of execution of a written settlement agreement.” The settlement will be enforced as to these terms.

Plaintiff’s Motion to Enforce Settlement Agreement is GRANTED. The court finds that parties to pending litigation stipulated to the settlement of the case in a writing signed by the parties outside the presence of the court. Judgment is therefore entered in favor of plaintiffs Akop Sogomonyan and Tsovinar Sogomonyan, and against defendants Hamazasp Kirajmijyan, Anait Orudzhyan, Armen Kiramijyan, Karapet Zakaryan and KAASS PC in the sum of $80,000.

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