Judge: Randy Rhodes, Case: 20CHCV00333, Date: 2022-12-13 Tentative Ruling
Case Number: 20CHCV00333 Hearing Date: December 13, 2022 Dept: F51
Dept. F-51
Date: 12/13/22
Case #20CHCV00333
MOTION TO ENFORCE SETTLEMENT
Motion Filed: 11/17/22
MOVING PARTY: Plaintiff Kimberly Fuess
RESPONDING PARTY: Defendants Richard Fuess and Mary
Kinzel (collectively, “Defendants”)
NOTICE: OK
RELIEF REQUESTED: An order and entry of judgment
enforcing the terms of a 2/10/22 settlement agreement between Plaintiff and
Defendants, or, alternatively, an order compelling the parties to submit to
binding arbitration before Hon. Charles G. Rubin.
RECOMMENDED RULING: Plaintiff’s motion is DENIED.
BACKGROUND
This is an action in which
Plaintiff sues her ex-husband, defendant Richard Fuess, and his sister,
defendant Mary Kinzel for quiet title. Plaintiff alleges that she held title to
certain real property located at 42135 San Francisquito Canyon Road, Santa
Clarita, CA 91390 (the “Property”). (Compl. ¶ 12.) The Property was purchased
on 12/18/21 by a corporation owned by Plaintiff and Mr. Fuess in equal shares,
as community property. (Id., ¶ 2.) Plaintiff alleges that Mr. Fuess thereafter
illegally transferred interest in the property to Ms. Kinzel on 5/23/18. (Id.,
¶¶ 5, 15.)
On 6/3/20, Plaintiff filed
her complaint against Defendants, alleging the following causes of action: (1)
Quiet Title; (2) Breach of Fiduciary Duty; (3) Cancellation of Instrument; and
(4) Declaratory Relief.
On 2/10/22, the parties
engaged in a virtual mediation with Hon. Charles G Rubin (ret.) at ARC
Mediation. (Pl.’s Mot., 3:9–11.) Plaintiff alleges that the parties orally
agreed to settle the matter at the conclusion of the mediation. (Id.,
3:11–12, 4:7–10.)
On 11/17/22, Plaintiff filed
the instant action to enforce the settlement agreement orally agreed to by the
parties. No opposition has been filed to date.
ANALYSIS
Enforceability
“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.” (Code
Civ. Proc. § 664.6, subd. (a).)
In determining a motion to enforce
a settlement under Code of Civil Procedure section 664.6, the court seeks to
determine whether the parties entered into a valid and binding settlement of
all or part of the case. (In re Marriage of Assemi (1994) 7 Cal.4th 896,
905.) “Oral stipulations before a subordinate court officer meet the ‘before
the court’ requirement if: 1) the court officer was empowered to act with an
adjudicatory function, and 2) the court officer did, in fact, act in that
capacity.” (Murphy v. Padilla (1996) 42 Cal.App.4th 707, 712.)
Here, the parties orally agreed to
the settlement terms following a virtual mediation outside the presence of the
court. Plaintiff asserts that her attorney attempted to memorialize the terms
of the agreed-upon settlement in a writing to be signed by the parties, but the
parties were not able to come to a consensus regarding those terms. (Pl.’s Mot.
4:21–23 (“In spite of these numerous efforts to enter into a further settlement
agreed with release language neither of the opposing counsel and their clients
have ever agreed to a further settlement agreement or to implement the
settlement agreement.”.)
Therefore, the Murphy standard
applies to determine whether the oral agreement following mediation satisfies
the “before the court” requirement of Code of Civil Procedure section 664.6,
subdivision (a). In Murphy, after the parties were referred by the trial
judge to submit to mediation before a retired judge, the Court of Appeal found
that there was no enforceable settlement agreement where the oral agreement was
made before a referee whose “function was principally to work with the
attorneys to achieve an early settlement of the litigation and … memorialize
the terms of the settlement.” (42
Cal.App.4th at 715.) The Court further found that the mediator was not
empowered to make binding decisions in the underlying dispute, and therefore
was not acting in an adjudicatory fashion sufficient to satisfy the “before the
court” requirement of the statute. (Ibid.)
Here, as in Murphy, the
principal function of the mediation was to “achieve an early settlement of the
litigation,” as opposed to making a binding adjudicatory decision. By its own purported
terms, the only binding decisions to be made would be at a later arbitration
should the parties disagree “in the execution of this settlement agreement.”
(Pl.’s Mot. 4:2–4; Exhibit D to Decl. of Hunt Braly.) Accordingly, the oral
settlement agreement was not made “before the court,” as required by under Code
of Civil Procedure section 664.6.
Plaintiff requests that the Court
order the parties to submit to binding arbitration before Judge Rubin in the
event this motion is denied. However, arbitration can be compelled only if the
parties have agreed to arbitrate the particular controversy involved (Ericksen,
Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35
Cal.3d 312, 323.) In determining the arbitrability of a particular case, the
court must examine and, to a limited extent, construe the underlying agreement.
(Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480.)
As set forth above, the underlying
oral agreement between the parties is unenforceable, and thus the arbitration
provision therein is likewise unenforceable. Accordingly, the Court declines
Plaintiff’s request for an order to compel arbitration.
Admissibility
“No evidence of anything said or
any admission made for the purpose of, in the course of, or pursuant to, a
mediation or a mediation consultation is admissible or subject to discovery.”
(Evid. Code § 1119, subd.
(a).) However, a written settlement agreement signed by the parties pursuant to
mediation is not inadmissible, under certain conditions, including when “the
terms of the oral agreement are recited on the record in the presence of the
parties and the mediator, and the parties express on the record that they agree
to the terms recited.” (Evid. Code §§ 1123, 1118.)
The statues “must be strictly applied and do not permit
judicially crafted exceptions or limitations, even where competing public
policies may be affected.” (Cassel v. Superior Court (2011) 51 Cal.4th
113, 118.) “The statutory purpose is to encourage the use of mediation by
promoting a candid and informal exchange regarding events in the past.... This
frank exchange is achieved only if the participants know that what is said in
the mediation will not be used to their detriment through later court proceedings
and other adjudicatory processes.” (Id. at 123.)
Here, Plaintiff argues that the
Court should take into consideration that the parties were unable to meet in
person for the mediation due to the ongoing COVID-19 pandemic, and therefore
were unable to memorialize their agreement in a signed writing. (Pl.’s Mot.,
7:18–20.) The Court takes note of the difficulties presented in the face of the
pandemic, and that the parties have thus far been unable to successfully
memorialize the terms of the 2/10/22 oral settlement agreement. (Exhibit F to
Braly Decl.) However, the Court declines Plaintiff’s invitation to obviate
Evidence Code section 1119 and public policy by admitting into evidence the
settlement discussions between the parties. As set forth above, there is no
written, signed agreement to enforce, nor any proffer of an official record of
the mediation. Accordingly, the exception under Evidence Code section 1123 does
not apply.
Absent a writing signed by the
parties, the oral agreement made following the non-binding mediation is
insufficient to constitute an enforceable settlement agreement under Code of
Civil Procedure section 664.6. Accordingly, Plaintiff’s motion is denied.
CONCLUSION
Plaintiff’s motion is DENIED.