Judge: Robert C. Longstreth, Case: 37-2017-00036344-CU-NP-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2017-00036344-CU-NP-CTL MCMILLAN VS DOE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Motion to Be Relieved as Counsel Attorney Stephen Erigero's Motion to Be Relieved as Counsel for Defendant John Doe (ROA 786) is GRANTED.

Attorney Erigero is directed to e-file updated, completed revised proposed orders (Judicial Council Form MC-053) for the court's signature, including identifying the persons appearing at the hearing, within five (5) days. 'The [proposed] order must specify all hearing dates scheduled in the action or proceeding, including the date of trial....' (Cal. R. Court, Rule 3.1362(e).) Once the court has signed the orders, Attorney Erigero is ordered to serve a copy of the signed orders on Defendant John Doe, and on all other parties, and to promptly file a proof of service of the signed order with the court.

Motion to Enforce Settlement Agreement Defendant John Doe's Motion to Enforce Settlement Agreement Under [Code of Civil Procedure] Section 664.6 (ROA 774) is GRANTED.

Defendant has presented evidence of a settlement agreement signed by the parties outside the presence of the court wherein all parties agreed this court would retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the agreement. (Def. NOL, Settlement Agreement, § 6.) The court further notes it presently has jurisdiction of this case, which has not been dismissed.

In their opposition, Plaintiffs claim they are not obligated to perform under the settlement agreement.

Plaintiffs assert Doe is precluded from enforcing the agreement based on the disentitlement doctrine because he did not show up in person for a mandatory settlement conference. The court is not persuaded. The fact that Doe did not appear at the settlement conference in person is immaterial to the enforcement of the fully executed agreement.

Plaintiffs claim Defendant Nicole Chaker failed to personally request that the court retain jurisdiction under section 664.6. However, the fully executed agreement contains an express provision to this effect, and it is signed by Nicole Chaker. (Agreement at § 6.) The court finds that this sufficiently binds Ms. Chaker to the retention of jurisdiction regardless of whether she signs an additional document to that effect. The judgment of dismissal in this case will include the provision that the court retains jurisdiction Calendar No.: Event ID:  TENTATIVE RULINGS

3106901  13 CASE NUMBER: CASE TITLE:  MCMILLAN VS DOE [IMAGED]  37-2017-00036344-CU-NP-CTL under section 664.6 to enforce the settlement.

Plaintiffs assert Doe breached his obligation to delete disparaging posts. The agreement provides that if Plaintiffs contend that Doe has made a disparaging post, Doe must either 1) act to remove it within 14 days or 2) verify under penalty of perjury that he did not make the post. There is no evidence that Doe has done either, and Doe does not contend that he has done either. Instead, Doe contends that his obligations do not accrue until Plaintiffs 'make some credible presentation of evidence that it was in fact Doe making those posts.' (Reply at 3:18.) The court disagrees. The obligation is triggered if Plaintiffs 'contend' Doe has made such a post. (Def. NOL, Settlement Agreement, § 2.8.) However, Plaintiffs provide no evidence or other legal authority that they can simultaneously demand compliance with the agreement and at the same time fail to perform under it, nor is there any evidence that they have rescinded the agreement. Indeed, Plaintiffs' argument in their Opposition that the agreement is 'subject to rescission' is, at the least, an implicit admission that the agreement has not actually been rescinded. (Opposition, ROA 779, at 15:15-16.) While Plaintiffs argue in an unauthorized supplemental declaration that the agreement has been rescinded, that declaration, which states that Plaintiffs 'will return consideration' for the settlement, not that the consideration has failed, (ROA 798, at 2:8-13), coupled with their later unpersuasive and speculative attempts to argue that they were fraudulently induced to enter into the settlement (ROA 806 at 4:7-10 and ROA 805 at 5-6), merely confirm that there is no valid basis to unilaterally rescind the agreement. (See Civ. Code § 1689(b).) In these circumstances, Plaintiffs' remedy under the summary provisions of the agreement (at section 6) is to move for enforcement under section 2.11, not to refuse to perform. (See Machado v. Myers (2019) 39 Cal.App.5th 779, 796.) As evidenced above, the court exercised its discretion to consider Plaintiffs' unauthorized supplemental briefing at ROA 798, 805, and 806, and found the arguments unavailing. The court has jurisdiction to enforce the settlement, as the case has not been dismissed. Plaintiffs' allegations of fraud and other arguments regarding unilateral rescission are not supported by evidence.

Plaintiffs' counsel has been repeatedly requested to confine their briefing to the allowances permitted by court rules. (ROA 208, 282.) Supplemental briefs and declarations are not permitted absent leave of court obtained in advance, which Plaintiffs had plenty of time to seek, considering this motion has been continued from nearly two months ago. (Cal. R. Court, rule 3.1113.) Attempts to circumvent page and brief limits are not well-taken by the court. While the court would normally be reluctant to reward Plaintiffs' behavior by considering their improper pleadings, in this case, review of the supplemental pleadings simply confirms that the opposition to the motions is meritless.

Per Code, Doe is entitled to entry of a judgment 'pursuant to the terms of the agreement.' (Code Civ.

Proc. § 664.6.) Doe's proposed order (ROA 777) does not conform to the statute's provisions, as it is not a judgment and does not contain all of the terms of the settlement agreement.

Doe is to submit a proposed Judgment within five (5) days that includes all the terms of the settlement agreement, including the provision that the court retains jurisdiction under Code of Civil Procedure. § 664.6.

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