Judge Serena R. Murillo, Case 22STCV11941 2022-08-23 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV11941, Date: 2022-08-23 Tentative Ruling

Case Number: 22STCV11941 Hearing Date: August 23, 2022 Dept: 29

TENTATIVE

Defendant’s motion to enforce 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.”

Discussion

Defendant moves for an order enforcing an alleged settlement agreement pursuant to Code of Civil Procedure § 664.6.

Defendant argues that after receiving a demand from plaintiff’s counsel, Defendant offered his $15,000 policy limits to plaintiff. Defendant argues that on November 23, 2021, Plaintiff’s counsel accepted the offer and provided Defendant with a Declaration for Defendant to sign wherein Defendant attested under penalty of perjury that he had no other insurance and was not in the course and scope of his employment at the time of the incident. Defendant executed the Declaration on November 23, 2021. (Foote Decl., Exh. C.) This declaration was prepared by plaintiff’s counsel and, Defendant argues, was the only condition Plaintiff placed on Defendant in accepting the $15,000.00 policy limits. As evidence that plaintiff was accepting the policy limits as full settlement, plaintiff’s attorneys provided the following three clauses in Defendant’s Declaration:

“7. I understand that Destin Lucas and his attorneys are relying on all of my aforementioned representations made in this declaration.

8. I understand that but for all of my aforementioned representations made in this declaration, Destin Flucas and his attorneys would not accept the policy limits offer of settlement on my insurance policy with Metromile.

9. This declaration and these warranties are being made to induce Destin Flucas to enter into a settlement agreement to settle his claims against me arising from this incident for the above-described insurance policy limits.” (emphasis added)

Defendant provided Plaintiff’s counsel with the executed Declaration on November 24, 2021. Plaintiff was asked to sign a standard form Release and Plaintiff’s counsel was asked to provide its W9 so that the settlement funds could be disbursed. (Id., Exh. D.)

After which, Plaintiff’s counsel demanded an additional $85,000.00 from Defendant.

As such, Defendant argues that Plaintiff stipulated in writing that he accepted the settlement, conditioned on Defendant signing a declaration drafted by Plaintiff’s counsel. By drafting the declaration and including the language from paragraphs 7, 8 and 9 (as shown above), Plaintiff’s counsel “signed” the writing that clearly set forth the terms of the settlement. Defendant argues that Plaintiff explicitly agreed that he would only accept the offered settlement if Defendant signed the declaration and attested that all of his representations were true: “[B]ut for all of [Mr. Gao’] aforementioned representations made in [his] declaration, Destin Flucas and his attorneys would not accept the policy limits offer of settlement on [Mr. Gao’s] insurance policy with Metromile.”

Plaintiff argues in opposition that Defendant’s argument rests essentially solely on a Declaration signed by Defendant, which ascertains policy limits and whether Defendant was in the course and scope of employment at the time of the incident. In short, no settlement agreement was ever reached. This is especially established by the unsigned settlement agreement. (Behnejad Decl., Exh. F.)

The Court agrees with Plaintiff that there is no settlement agreement because there is no writing, i.e., contract, to begin with. The declaration is only evidence that a settlement was being discussed as it says in item 9 that the declaration is being made to induce Plaintiff to enter into a settlement agreement. Moreover, item 8 merely states that Plaintiff will not accept policy limits offer without the representations, but it does not state that he will accept the policy offer. Nevertheless, even if it was a writing, there is no signature by Plaintiff. Simply because Plaintiff prepared it does not mean he signed it. Code of Civil Procedure section 664.6 requires a writing signed by both parties. Defendant offers to authority for his proposition that “[b]y drafting the declaration and including the language from paragraphs 7, 8 and 9 (as shown above), Plaintiff’s counsel ‘signed’ the writing.” And the Court is not aware of any. Moreover, as further proof that there has been no settlement agreement, the unsigned settlement agreement is attached as Exhibit G to Defendant’s motion.

Conclusion

Based on the foregoing, Plaintiff’s motion to enforce the settlement agreement is DENIED.

Moving party is ordered to give notice.