Judge: Richard S. Whitney, Case: 37-2022-00046050-CU-BT-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 30, 2023

09/01/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2022-00046050-CU-BT-CTL FALSTRUP VS SHEN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT AGREEMENT (C.C.P.

664.6) is DENIED.

Plaintiffs Jason Falstrup and Melissa Sebastian ('Plaintiffs') seek to enforce a settlement, specifically a written 'settlement agreement' signed on May 23, 2023. Plaintiffs move under CCP section 664.6. CCP section 664.6 provides, in part, that '[i]f 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.' (Code Civ.

Proc., § 664.6.) Plaintiffs assert the settlement agreement, which clearly contemplates the execution of a 'Formal Settlement Agreement,' contains all material terms. Defendant/Cross-Complainant Vincent Shen and Defendant Kaaspeed USA, Inc. ('Defendants') oppose the motion because the 'settlement agreement' is inadmissible under the mediation privilege and there was a lack of mutual consent.

'All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.' (Evid. Code, § 1119(c).) A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.

(b) The agreement provides that it is enforceable or binding or words to that effect.

(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.

(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

(Evid. Code, § 1123 [Emphasis added].) While Plaintiffs assert the privilege does not apply since the agreement was signed after the mediation was completed, the Court finds the privilege applies since the agreement reflects the communications made in mediation. The declaration of Mr. Morris reflects this. 'After a full day of mediation, plaintiffs agreed to settle the case as against defendant Vincent Shen.... The parties memorialized their agreement and signed it.' (Decl. Morris, ¶ 3.) The terms of the 'settlement agreement' do not include any of the above conditions, namely there are no terms it is binding nor that it is subject to disclosure.

(Decl. Morris, Exhibit A.) Therefore, the Court must agree the 'settlement agreement' is not admissible in this 'civil action.' (Evid. Code, § 1119(a).) While Plaintiffs assert the privilege was waived, Plaintiffs fail Calendar No.: Event ID:  TENTATIVE RULINGS

2988814  50 CASE NUMBER: CASE TITLE:  FALSTRUP VS SHEN [IMAGED]  37-2022-00046050-CU-BT-CTL to adequately explain how Defendants, the holder of the privilege, took any action to waive the privilege.

(Shooker v. Superior Court (2003) 111 Cal.App.4th 923, 928.) The Court finds 'republication of the terms set forth therein in a formalized agreement distributed to plaintiff's counsel for final review' does not constitute waiver.

Furthermore, Defendants have provided evidence to indicate that the 'settlement agreement' did not necessarily include all material terms. (See Decl. Solomon and Decl. Shen.) 'A settlement with open material terms is not a 'conditional settlement.'' To the contrary, it is not a settlement at all because, like all contracts, it is not binding until the settling parties agree on all its material terms.' (Levitz v. The Warlocks (2007) 148 Cal.App.4th 531, 535.) If the parties had intended to include additional material terms in the 'Formal Settlement Agreement,' then the Court could find that there has not been a meeting of the minds. Defendants have provided evidence that the parties intended to include additional material terms in the 'Formal Settlement Agreement.' For the above reasons, the motion is denied.

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