Judge: Serena R. Murillo, Case: 21STCV20496, Date: 2022-10-20 Tentative Ruling
Case Number: 21STCV20496 Hearing Date: October 20, 2022 Dept: 29
Lisa Shows v. Jerome Lam, et al.
(1 of 2) Motion to Enforce Settlement filed by Defendants Donald Trask, Digette Trask and the 4D Trask Investments, LLC
TENTATIVE
Defendants’ motion to enforce the settlement agreement is DENIED.
Legal Standard
Code of Civil Procedure section 664.6 provides:
“(a) [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. 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.”
Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Before an amendment was effective on January 1, 2021, “parties” under section 664.6 meant the litigants themselves, not their attorneys. (See Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) The settlement had to include the signatures of the parties seeking to enforce the agreement and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.)
The existence of a contract “requires parties capable of contracting, their consent, a lawful object, and a sufficient cause of consideration.” (J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 9 [citing Civ. Code, § 1550].) Consent requires an offer and acceptance. (DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 813.) The inclusion of a different term in an alleged acceptance constitutes a counteroffer. (See Bias v. Wright (2002) 103 Cal.App.4th 811, 820.) A counteroffer extinguishes the original offer. (Civ. Code, § 1585; Landberg v. Landberg (1972) 24 Cal.App.3d 742, 751.)
Section 664.6 procedure empowers the judge hearing the motion to determine disputed factual issues that have arisen regarding the settlement agreement. It even permits the court “to entertain challenges to the actual terms of the stipulation”, that is, whether there “actually was” a settlement. (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566 [holding statute's express authorization for trial courts to determine if a settlement occurred is “implicit authorization” for trial court to determine settlement's terms and conditions].) In ruling on the motion, a may receive oral testimony, or may determine the motion upon declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) For example, where the settlement agreement is ambiguous, the court is required to consider extrinsic evidence of the parties' intent. (Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 183.)
If the settlement leaves material terms wanting, or confusing, the settlement cannot be enforced through the section 664.6 summary proceeding and must be addressed in a separate civil action. (Compare Terry v. Conlan (2005) 131 Cal.App.4th 1445 [finding parties never agreed to the means that were material to the settlement, including what role an independent manager was to play regarding management of a trust property, and whether the trust should be qualified as a QTIP, thereby indicating that there was no meeting of the minds as to the material terms] with Osumi v. Sutton (2007) 151 Cal.App.4th 1355 [holding trial court’s decision to extend closing date for vendor’s agreement to repurchase house did not create a material term and was within court’s power because the closing date had passed by the time the motions came on for hearing and a new closing date was necessary to grant the relief sought by both parties].)
Discussion
On September 28, 2021, Plaintiffs’ counsel sent a letter to Defendants’ counsel demanding Defendants’ policy limits to settle Plaintiffs’ claims against Defendants. (Sargsyan Decl., ¶ 3; Exh. A.) That letter stated the demand was to remain open for 30 days. (Ibid.)
On October 18, 2021, Defendants’ counsel sent a correspondence to Plaintiff’s counsel stating Defendants accept the policy limit demand made on September 28, 2021. (Id., ¶ 6; Exh. B.) The October 18, 2021 correspondence requested further information from Plaintiff’s counsel as to the
pro rata share for each Plaintiff, payment instructions, and whether there were any statutory liens. (Id.) The proposed settlement compromise included additional terms, including Plaintiff’s release of liability and a dismissal with prejudice as to Defendants. (Levy Decl. ¶ 6; Exh. D.)
The Court finds Defendants’ October 18, 2021 correspondence amounted to a counteroffer. Defendants’ October 18, 2021 correspondence contained terms that were not in Plaintiffs’ September 28, 2021 offer to settle their claims against Defendants for their policy limits. Plaintiffs did not include in their settlement offer that they would release liability against Defendants’ insurer, or dismiss Defendants with prejudice. As such, Defendants sought to agree a more expansive settlement than Plaintiffs did, making Defendants’ October 18, 2021 correspondence a counteroffer to Plaintiffs’ September 28, 2021offer. Therefore, the motion must be denied.
The Court also finds the motion must be denied even if Defendants’ October 18, 2021 correspondence amounted to an acceptance of Plaintiffs’ September 28, 2021 settlement offer. Defendants’ signature is not on the September 28, 2021 settlement offer. Similarly, Defendants’ signature is not on the October 18, 2021 settlement offer. Thus, the Court cannot enforce the settlement pursuant to California Code of Civil Procedure section 664.6.
Conclusion
Based on the foregoing, Defendants’ motion to enforce the settlement agreement is DENIED.
Moving party is ordered to give notice.
(2 of 2)
Motion to Strike Portions of the FAC, filed by Defendants Donald Trask, Digette Trask and the 4D
Trask Investments, LLC
TENTATIVE
Defendants Donald Trask, Digette Trask and the 4D
Trask Investments, LLC’s motion to strike is DENIED.
Judicial Notice
Defendants request judicial notice
of the City of Pasadena’s Ordinance No. 7363, i.e.,
its moratorium of evictions. The request is GRANTED under Evidence Code
section 452(b).
Legal Standard
Any party, within the time allowed to respond to a
pleading may serve and file a notice of motion to strike the whole or any part
thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any
time in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of any pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the court. (Code Civ. Proc., §
436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) The grounds for a motion to strike must
“appear on the face of the challenged pleading or from any matter of which the
court is required to take judicial notice.” (Code Civ. Proc., §
437.)
Meet and
Confer
The court notes
that counsel’s declaration satisfies the meet and confer requirement under CCP §
435.5(a)(3). (Kerr
Decl., ¶ 3.)
Discussion
Defendant Digette moves to strike allegations of punitive damages
against her in the FAC.
To state a claim for punitive damages under Civil Code section
3294, a plaintiff must allege specific facts showing that the defendant
has been guilty of malice, oppression or fraud. (Smith v. Superior Court
(1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be
pled with specificity; conclusory allegations devoid of any factual assertions
are insufficient. (Id.) A motion to strike may lie where the facts alleged, if
proven, would not support a finding that the defendant acted with malice, fraud
or oppression. (Turman v. Turning Point of Central California (2010) 191
Cal. App. 4th 53, 63.)
“Malice” is defined in section 3294(c)(1) as “conduct which is
intended by the defendant to cause injury” or “despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as
“despicable conduct subjecting a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” The term “despicable” has been
defined in the case law as actions that are “base,” “vile,” or “contemptible.”
(See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing,
Inc. (2000) 78 Cal. App. 4th 847, 891.)
To prove that a defendant acted with “willful and conscious
disregard of the rights or safety of others,” it is not enough to prove
negligence, gross negligence or even recklessness. (Dawes v. Superior Court
(1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts
demonstrating that “the defendant acted in such an outrageous and reprehensible
manner that the jury could infer that he [or she] knowingly disregarded the
substantial certainty of injury to others.” (Id. at 90). Further, the
allegations must be sufficient for a reasonable jury to conclude that
Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)
Here, Defendant argues
Plaintiff has failed to allege specific facts showing that defendant acted with
oppression, fraud, or malice to support Plaintiff’s prayer for punitive
damages. According to Defendant, Plaintiff’s allegations are conclusory, devoid
of ultimate facts demonstrating Defendant acted with malice, oppression, or
fraud.
In opposition, Plaintiffs argue the facts pled in the FAC leave no
doubt that Digette was aware of the probable dangerous consequences of allowing
the Lam Defendants to remain on the premises with their vicious and
unrestrained dogs, and that she willfully and deliberately failed to avoid
those consequences. As outlined in the operative pleading, on at least 15
occasions prior to the attack, she was made aware that the dogs were, inter
alia, fighting with each other, acting aggressively, barking and lunging at the
tenants, getting out of their yard and trapping tenants in their homes,
preventing the mailman from delivering mail and trying to kill a cat. (FAC, ¶
29.) Further, paragraph 26 of the FAC provides the following detailed summary
of communications between Lisa and Digette in the six months leading up to the
attack:
·
April 1, 2020: Shows sends text to
Digette with video of dog trying to kill one of the cats. She must go through
that area to pay the rent. No Reply provided.
·
April 2, 2020: Shows sends text to
Digette asking her if there is an alternative to her paying her rent since she
must go by the dogs. No Reply provided.
·
April 11, 2020: Shows sends email to
Digette regarding the dogs and other animals in Apt. 3. feces, barking, dogs
fighting and running around. She mentions the video she had texted Digette
regarding one of the dogs trying to kill one of the cats. No Reply provided.
·
May 16, 2020: Shows sends text to Digette
letting her know the mailman has approached her about the dogs in apt 3 letting
her know if things continue, they will refuse to deliver the mail. She also
mentions that Sean in Apt 4 let her know the dogs broke his separation
gate. No reply provided.
·
May 19, 2020: Shows sends text to Digette
with a video of the dogs being on her fence and also mentions the feces being
dumped at her side. She also mentions one of the cats being pregnant. No reply
provided.
·
September 18, 2020: Shows sends text to
Digette asking her if she still intends to have the ppl in Apt. 3 move.
·
September 19, 2020: Shows sends text to
Digette lettering her know this is “not a good situation.”
·
September 30, 2020: Shows sends text to
Digette advising her that there is “no safe route” for the tenants to avoid the
dogs. Attached to the text are photos of the dogs running around loose again.
Digette tells her she can call the Humane Society. Lisa also mentions on
incident where the dogs “went after” Ceniza in apt 5.
·
October 3, 2020: Shows sends text to
Digette with a video of the dogs loose and fighting again. She states “this is
bad” and “no none feels safe.” Digette responds she will see what she can do on
Monday.
·
October 6, 2020: Shows sends text to
Digette to see if she has been able to do anything about the eviction block. No
reply provided.
·
October 6, 2020: Shows sends text to
Digette Trask to inform her she continues to believe apt 3 is breeding dogs and
nothing has changed. Message read but no reply provided.
(Id., ¶ 26.)
As early as March 17, 2020, seven
months before the Subject Dog Attack, Defendant Digette responded to
Spurrier’s text message acknowledging that Defendants’ Dogs “have got to
go.” (Id., ¶ 31.)
With wanton disregard for the safety of the tenants
on the Subject Property, Defendant Digette took no measures to evict the Lam Defendants
until after the Subject Dog Attack. (Id., ¶ 39.)
The Court agrees with
Plaintiffs. The Court finds the cited portions of the FAC sufficiently allege that
Defendant Digette was aware of the subject dog’s vicious and dangerous
propensities prior to the incident giving rise to Plaintiff’s injuries, and
acted with a willful and conscious disregard of the rights or safety of
others by failing to take action to evict the Lam Defendants. For pleading
purposes, this is sufficient to demonstrate malice on the part of Defendant to
support a prayer for punitive damages.
Defendants have requested judicial
notice of the City of Pasadena’s moratorium of evictions. Defendants argue that
during the period between April 1, 2020, and October 14, 2020 (the date of the
incident), the City of Pasadena was controlled by an eviction moratorium
due to the Covid-19 pandemic. Pasadena’s moratorium placed a substantial burden
on landlords who attempted or desired to evict tenants. The practical realities
of eviction during the stated period proved extremely difficult as tenants were
granted lenient recourse options in addition to Los Angeles Superior Court
substantially limiting trials in unlawful detainer departments. Given the
circumstances of the time period, Defendant argues that it is insufficient
to allege that Defendants’ conduct in not evicting Plaintiffs’ neighbors—a
procedural and legal impossibility—was willful, wanton, malicious, oppressive,
or done with the intent to cause injury to Plaintiffs. Landlords who did
take actions to attempt to evict tenants during the moratorium are now
routinely accused of “tenant harassment.” Here, Defendants expressed desire to
evict Plaintiffs’ neighbors, but given the totality of the circumstances,
were barred from doing so. Defendants argue that Plaintiffs cannot
reasonably argue that Defendants’ failure to harass their tenants into
moving out, when the legal system provided them no recourse to do so, is
tantamount to malice toward the Plaintiffs.
However, as Plaintiffs point out, section
5(A)(1) of the moratorium explicitly permitted evictions under circumstances
such as these where it was necessary for the health and safety of tenants. (Pasadena Ordinance No. 7363.) The FAC alleges that
neither Defendant was prevented from evicting the Lam Defendants from the
Subject Property at any time prior to the Subject Dog Attack due to Covid-19
because evictions could have been made for “good cause,” unrelated to the Lam
Defendants’ inability to pay the rent. (Id., ¶ 40.)
As such, Defendants’ argument that the
allegations pertaining to Defendant Digette’s conduct in failing to evict
Plaintiffs’ neighbors are insufficient because it was procedurally and
legally impossible to do so is unavailing.
Conclusion
Accordingly,
Defendant’s motion to strike is DENIED.