Judge Ronald F. Frank, Case YC072873 2023-05-09 Tentative Ruling

Judge: Ronald F. Frank, Case: YC072873, Date: 2023-05-09 Tentative Ruling

Case Number: YC072873 Hearing Date: May 9, 2023 Dept: 8

Tentative Ruling

HEARING DATE: May 9, 2023¿

CASE NUMBER: YC072873

CASE NAME: Anna Mezheritsky v. Dorothy Kovich Klein, et al.

MOVING PARTY: Defendant, Dorothy Kovich Klein

RESPONDING PARTY: Plaintiff, Anna Mezheritsky

TRIAL DATE: None on Calendar; earlier trial date vacated

MOTION:¿ (1) Defendant’s Motion to Enforce Settlement Agreement

Tentative Rulings: (1) GRANT enforcement of the fully-signed short-form Mediator Agreement, but if Defendants seek to enforce an unsigned long-form agreement, ARGUE that motion.

I. BACKGROUND¿

A. Factual¿

Defendant has informed the Court that on August 5, 2022, all parties participated in a mediation before Mediator Daniel Quinn. While the case did not resolve at that time, Mr. Quinn continued to facilitate settlement discussions. As a result of which the parties agreed to resolve this matter for $200,000 as follows: Defendant Dorothy Kovich Klein, through her insurance carrier, agreed to pay the sum of $198,500 to Plaintiff Anna Mezheritsky for a complete resolution of the case, all claims, all issues. Defendant Thomas Kovich agreed to pay the sum of $1,500 to Plaintiff Anna Mezheritsky for a complete resolution of the case, all claims, all issues.

Defendant indicates that Mediator Quinn circulated a short-form settlement agreement prepared by his office memorializing the settlement. (Declaration of Marc S. Feldman, Exhibit A.) Defendant claims that Plaintiff Anna Mezheritsky signed the agreement on September 22, 2022. Defendant also notes that Thomas Kovich signed the agreement on September 22, 2022. Dorothy Kovich Klein signed the agreement on September 30, 2022. The agreement included the following Release: “Plaintiff waives all provisions under California Code of Civil Procedure §1542.”

Defendant contends that the agreement further provided that the parties would sign a “long form” Settlement Agreement and Release (“SAR”) which would include a complete CA Civil Code §1542 Release including specific language from that Code section. Defendant included that the agreement also included a provision that plaintiff and/or her counsel would be responsible for all liens, known or unknown, including any Medicare liens. Defendant notes that these basic terms are routinely incorporated into all settlement agreements in habitability and personal injury cases. Defendant further notes that the necessity of these provisions was made clear during the settlement process and clearly communicated to the Mediator and Plaintiff. The settlement was reached with the understanding that the finalized long-form SAR would include these basic terms.

Defendants claim to have complied with the bargained for terms of the agreement including circulating multiple iterations of the SAR, that have been used in literally thousands of cases resolved by counsel. Defendants also claim to have been diligent and accommodating in their efforts to resolve this matter and to avoid further Court intervention. Defendant identifies that there have been two in-person Settlement Resolution Conferences with this Court, during which the parties and the Court spent several hours endeavoring to address Plaintiff’s ongoing reticence to comply with the settlement terms to which she had already agreed. Defendants note that they were willing to make some reasonable revisions to the SAR, even if not negotiated in advance of entering into the settlement, however, Defendant asserts that Plaintiff has remained intransigent in her demands.

Per the Motion, Plaintiff has refused to comply with what Defendants contend are the bargained for and agreed upon basic, standard provisions in the various iterations of the SAR.

B. Procedural

On April 5, 2023, Defendant filed this Motion to enforce settlement. On April 26, 2023, Plaintiff filed a response, which is not an opposition but is confusing the Court as to whether Plaintiff opposes enforcement of the short-form fully-signed agreement or not. On April 27, 2023, Defendant filed a reply brief.

¿II. ANALYSIS

A. Legal Standard

Under Code of Civil Procedure, section 664.6:

(a)¿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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.”

B. Discussion

To date, Defendant claims that Plaintiff has refused to comply with the bargained for terms of the settlement reached through mediation and follow-up negotiations. Defendant asserts that the settlement negotiations unequivocally included an agreement that a “long form” settlement agreement would be prepared which would include full CA Civil Code §1542 language and an agreement by Plaintiff and her counsel that they would be solely responsible for any liens whether known or unknown, including Medicare liens. However, Defendant notes that while the mediator’s settlement agreement has the same cause and effect of a full CA Civil Code §1542 Release, Plaintiff wants the 1542 Release in the SAR to be limited to one sentence: “Plaintiff waives all provisions under California Civil Code Section 1542.” Despite this agreement to finalize the settlement with an SAR containing basic terms common to all habitability settlements, Defendant contends that Plaintiff has failed to comply with this part of the argument.

As such, Defendant asserts that Plaintiff is in violation of the agreement reached during settlement discussions and the mediator’s settlement agreement signed by all parties.

In its response, Plaintiff’s counsel merely informs this Court and Defendant that he has “not been able to communicate with” Plaintiff regarding the Defendants present motion to enforce the settlement agreement, and had no understanding as to any response the Plaintiff may have. Based on this, Plaintiff’s counsel notes that if this Court were inclined to deny Defendant’s Motion to Enforce the Settlement, and/or otherwise find the Mediators Settlement Agreement unenforceable, Plaintiff’s counsel requested that this matter by immediately placed on the trial calendar to a date that is no sooner than October 1, 2023. Plaintiff notes that this lawsuit was filed on May 10, 2018, and must be brought to trial no later than November 10, 2023.

In Defendant’s reply brief, they reiterate that this settlement was entered into nearly eight (8) months ago, and that Defendant has twice extended in-person conferences with the Court to try and finalize the settlement terms.