Judge: Ralph C. Hofer, Case: 24NNCV04078, Date: 2025-05-02 Tentative Ruling
TENTATIVE RULING
Calendar: 2
Date: 05/02/2025
Case No: 24 NNCV04078 Trial Date: None Set
Case Name: Cantu, et al. v. Gonzalez, et al.
MOTION TO ENFORCE SETTLEMENT AGREEMENT
Moving Party: Plaintiffs Terres Cantu and Rhonda Cantu
Responding Party: Defendants Karla Gonzalez, Maria Arreola, Lindomar Bonfim and Infinity Insurance Company
RELIEF REQUESTED:
Enforce settlement agreement
SUMMARY OF FACTS:
This action was filed on September 6, 2024 by plaintiffs Terres Cantu and Rhonda Cantu, alleging that in September of 2022, plaintiff Terres Cantu came to a stop at an intersection in Burbank, and when the light turned green proceeded into the intersection, and that as plaintiff was driving through the intersection defendant Karla Gonzalez failed to stop for a red light and struck the driver’s side of plaintiff’s vehicle in the intersection, causing plaintiff Terres Cantu to suffer significant injuries. Terres Cantu’s spouse, plaintiff Rhonda Cantu, brings a cause of action for loss of consortium.
The complaint also alleges that on May 13, 2024, defendants Kemper Independent Insurance (Kemper) and Lindomar Bonfim entered into a settlement agreement to resolve the claims of plaintiffs against Kemper’s insureds, defendants Karla Gonzelez and Maria Arreola Chavez, but have failed to make payment on the settlement and are in breach of their contractual agreement.
The complaint alleges causes of action for negligence, loss of consortium, and breach of contract.
On January 21, 2025, plaintiffs filed a Request for Dismissal of the action without prejudice as to defendants Bonfim and Kemper, which dismissal was entered as requested the same date.
On January 21, 2025, plaintiffs filed an Amendment to Complaint, substituting for the fictitious name of Doe 11 the true name of Infinity Insurance Company.
On January 28, 2025, defendant Infinity Insurance Company (Infinity) filed a cross-complaint for rescission, alleging that defendant as cross-complainant has assumed liability under an automobile insurance policy issued to plaintiff and cross-defendant Chavez covering driver defendant and cross-defendant Gonzalez, and that in February of 2024, cross-defendants made a policy limit demand to Infinity for its limits of $15,000, and in March of 2024, Infinity offered $3,805.76 to resolve the claim. The parties continued to offer and counter, with Infinity offering in March of 2024 the sum of $6,000.00 to resolve the claim.
The cross-complaint alleges that on May 13, 2024, cross-defendants made a counter-demand of $37,000.00. It is alleged that on May 14, 2024, the same adjuster assigned to cross-defendants’ claim had received a second, and distinct, $37,000.00 demand on another claim that had been assigned to him, but did not in any way involve cross-defendants or the insureds on the policy. The cross-complaint alleges that intending to continue to negotiate the other claim, where Infinity’s last offer had been $34,000 and the claimant was demanding $37,000.00, Infinity’s adjuster erroneously called counsel for cross-defendants and offered $35,000.00 to resolve the other claim, not realizing he was extending the offer to the wrong file and the incorrect claimant’s counsel. The adjuster then followed the call with an email, and five minutes later, cross-defendants accepted the offer.
The cross-complaint alleges that given that the policy limit on the Chavez/Gonzalez policy was only $15,000 and given that Infinity had previously only offered $6,000, counsel for cross-defendants should have realized that a mistake had been made, and that upon cross-complainant recognizing the mistaken offer and within approximately 15 minutes of making the offer itself, a supervisor from Infinity immediately called cross-defendants’ counsel to advise him of the mistake and advise that Infinity was rescinding the offer as it was not meant nor intended for this claim. Cross-complainant alleges that cross-defendant’s counsel has refused, and continues to refuse, to recognize Infinity’s attempt to explain its mistaken offer, resulting in counsel now filing cross-defendants’ breach of contract claim in the subject complaint. The cross-complaint seeks rescission of the settlement offer based on mistake of fact. The cross-complaint alleges one cause of action for rescission.
ANALYSIS:
Plaintiffs Terres Cantu and Rhonda Cantu bring this motion to enforce a settlement agreement they allege was entered on May 14, 2024.
CCP § 664.6 provides, in pertinent part:
“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.”
The statute clearly requires that the summary procedures enforcement of a settlement apply only where parties to “pending litigation” have stipulated to settlement of that litigation.
As is clear here, and argued in the opposition, the settlement sought to be enforced here was not entered in connection with “pending litigation,” but in connection with pre-litigation settlement negotiations.
The settlement agreement sought to be enforced is a May 14, 2024 email chain. [Patterson Decl., para. 13, Ex. 10]. There is no indication in the moving papers that at the time this agreement was entered there was pending litigation to be settled. This lawsuit was not filed until September 6, 2024, and obviously post-dated the relied upon settlement, because the complaint includes a cause of action for alleged breach of the May 14, 2024 settlement offer and acceptance. [Complaint, paras. 31-39].
Moreover, one of the parties against whom the motion seeks relief, Lindomar Bonfim, was voluntarily dismissed from this action on January 21, 2025, so there is currently no pending litigation against that party.
In any case, the declaration of counsel submitted with the moving papers clearly concedes that this motion is made to enforce a settlement which pre-dated litigation:
“As Defendants refused to comply with the terms of the agreement, Plaintiffs filed their civil complaint and the matter has proceeded to litigation. Accordingly, Plaintiffs had no option but to file this Motion to have the Court enforce the settlement.”
[Herron Decl., para. 7].
There is no legal authority cited under which in an action for breach of a settlement agreement a party may file a motion under CCP section 664.6 to summarily enforce the agreement. The statute is intended to avoid the necessity of filing separate litigation to enforce a settlement reached in “pending litigation.”
The oppositions rely on Kirby v. Southern California Edison Co. (2000) 78 Cal.App.4th 840, in which the court of appeal reversed a trial court order granting a motion to enforce a settlement agreement under CCP section 664.6 and dismissing the action. The court of appeal raised, on its own motion, the issue of whether CCP section 664.6 applied in the instance, and invited briefing from the parties on the issue. The court of appeal concluded that CCP section 664.6 did not apply and that the dismissal was unauthorized. The procedural posture in Kirby was the same as that presented here, as the settlement sought to be enforced pursuant to CCP section 664.6 had been reached months before the litigation was filed.
The court of appeal reviewed the statutory procedure, and its language, and reasoned:
“Section 664.6 provides a summary procedure by which a trial court may specifically enforce an agreement settling pending litigation without requiring the filing of a second lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809 [71 Cal.Rptr.2d 265].) That section provides in relevant part: “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.”
Here, the release agreement that Edison moved to enforce, and that the trial court specifically enforced by granting that motion, was not entered into between “parties to pending litigation ....” At the time the disputed release was executed, no action was pending at all. Kirby did not file her action for damages for the wrongful death of her son until May 29, 1997, over five months after the execution of the release.”
Kirby, at 843.
Similarly, here, this action was not filed until September 6, 2024, nearly four months after the purported settlement agreement was entered on May 14, 2024.
The court of appeal in Kirby interpreted the statutory language and determined:
“The statutory language at issue here refers to settlements by “parties to pending litigation” who “stipulate ... for settlement of the case ....” That language is clear and unambiguous. As used in section 664.6, the term “parties” means “litigants.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 [41 Cal.Rptr.2d 878, 896 P.2d 171].) There can be no litigants until there is a case on file to litigate. And no one can stipulate to a settlement of “the case” unless and until that case has been filed. Accordingly, that language can only be intended to refer to settlement agreements entered into while litigation between the settling parties is pending. That lack of ambiguity precludes us from rewriting or otherwise imaginatively construing the statutory language in any manner that would extend to the prelitigation release at issue here. (Faria v. San Jacinto Unified School Dist. (1996) 50 Cal.App.4th 1939, 1945 [59 Cal.Rptr.2d 72].)
Even were there any ambiguity to be resolved, the legislative history of section 664.6 reinforces the conclusion that the Legislature intended the section to provide a means of enforcing settlement agreements entered into after litigation has been filed. An analysis prepared by the Senate Committee on the Judiciary describes the problem the legislation was designed to address: “Existing Rule of Court 207.5 provides for a pretrial settlement conference for civil actions. However, neither existing law nor rule of court authorizes an entry of judgment pursuant to the settlement terms.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1925 (1981-1982 Reg. Sess.) p. 2.) The absence of that authorization was a problem because “[p]arties who initially agree to the terms of a settlement often change their minds after the case is taken off calendar. Thus the time taken and the money spent on holding pretrial conferences are wasted.” (Id. at p. 4.) If no litigation was pending between the parties at the time of the settlement, then no judicial settlement conference would ever have been scheduled or conducted, and the problem targeted by the Legislature would not exist.844-845.”
Kirby, at 844-845.
The court of appeal explained the narrow nature of the summary enforcement remedy made available by the legislature under CCP section 664.6:
“Edison argues that “there is no logical reason” to distinguish between settlements reached before litigation was filed and those reached during the pendency of litigation. It is mistaken. Section 664.6's “summary, expedited procedure[s]” are available only “when certain requirements that decrease the likelihood of misunderstandings are met.” (Levy v. Superior Court, supra, 10 Cal.4th at p. 585.) The Legislature could have reasonably concluded that settlement agreements entered into after litigation has been filed, when the parties to that litigation are generally represented by counsel, are less likely to result in misunderstandings and disputes than are agreements reached before the parties have retained attorneys.
Kirby, at 845-846.
In fact, as alluded to in Kirby, it has long been recognized that summary enforcement of a settlement under CCP section 664.6 is not an exclusive remedy, and the parties may always file a separate action to enforce the settlement agreement. See Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110. Once that separate action has been filed, it would proceed to full civil litigation, and would not be resolved summarily under CCP section 664.6. The court of appeal in Kirby observed that in the case before it, as in this case:
“If Edison can establish the enforceability of the release as a matter of undisputed fact, it may move for summary judgment. If the enforceability of the release depends upon issues of fact that are disputed, then it must litigate those factual issues at trial. But because Kirby and Edison were not, at the time the release was executed, parties to any pending litigation that the release was intended to resolve, Edison may not employ the summary procedures afforded by section 664.6 to determine the enforceability of that release.”
Kirby, at 846.
Here, as in Kirby, there is no dispute that plaintiffs seek to apply CCP section 664.6 to enforce a pre-litigation settlement agreement. The statutory prerequisite of “pending litigation” has not and cannot be satisfied here. As in Kirby, CCP section 664.6 does not apply in this instance. The motion is denied.
RULING:
Plaintiffs’ Motion to Enforce Settlement Agreement Pursuant to CCP section 664.6 as Against All Defendants is DENIED.
Plaintiffs have failed to establish that the subject settlement agreement satisfies the statutory requirements of CCP § 664.6, as it is not established that the settlement agreement was entered while there was pending litigation between the parties.
The Court will proceed with the Case Management Conference also scheduled this date, and assign this matter appropriate future dates.
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