Judge: Steven A. Ellis, Case: 19STCV17761, Date: 2024-01-04 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV17761    Hearing Date: March 14, 2024    Dept: 29

Motion to Enforce Settlement filed by Defendant Simon M. Keushkerian
Motion to Enforce Settlement filed by Defendant Glendale Adventist Medical Center.

Tentative

The motions are continued.

Background

On May 22, 2019, Vahe Menachkanian and Margyet Manaserian (collectively “Plaintiffs”) filed a complaint against Simon M. Keushkerian, M.D. (“Keushkerian”), Faisal A. Khan, M.D. (“Khan”), Glendale Adventist Medical Center (“GAMC”), and Does 1 through 20 for professional negligence and loss of consortium arising out of a surgical procedure that occurred on May 25, 2018.

Keushkerian, Khan, and GAMC filed their answers on October 8 and 11, 2019.  In or about July 2020, Plaintiffs settled with Khan.

The case proceeded against Keushkerian and GAMC.  The parties participated in a mediation at Judicate West on or about May 8, 2023.  Subsequently, on or about May 25, 2023, Plaintiffs, Keushkerian, and GMAC all signed a one-page written Settlement Agreement. (Wend Decl., ¶¶ 3-5 & Exh. A; Kjar Decl., ¶¶ 3-5 & Exh. C.)

The Settlement Agreement provides for a total settlement amount of $325,000, with each of Keushkerian and GAMC to contribute half of that amount ($162,500).  Plaintiff Menachkanian is to receive $295,000, and Plaintiff Menaserian is to receive $30,000.  Each side bears its own fees and costs, and liens are the responsibility of Plaintiffs.  The Settlement Agreement also provides (among other terms):

Plaintiffs’ counsel to provide a W9 and payment instructions as soon as practicable.  Defendant’s counsel to provide complete release documents, including waiver of Civil Code section 1542, to plaintiffs within 7 business days thereof.  Proceeds to plaintiffs and their counsel within 30 days of defense counsels’ receipt of all properly executed closing documents, including a dismissal with prejudice as to the entire case.

(Wend Decl., Exh. A; Kjar Decl., Exh. C.)

According to Defendants’ counsel, they sent Plaintiffs the release documents on or about June 5, 2023.  (Wend Decl., ¶ 7 & Exh. D; Kjar Decl., ¶ 7 & Exh. D.)

On June 22, 2023, Plaintiffs’ counsel filed a Notice of Settlement of Entire Case.

According to Defendants’ counsel, however, Plaintiffs and their counsel did not execute the release sent by Defendants’ counsel (or propose any other or different release terms).  (Wend Decl., ¶¶ 7-9; Kjar Decl., ¶¶ 9-10.)

On November 30, 2023, Plaintiffs’ counsel filed motions to be relieved as counsel, stating that counsel and Plaintiffs “have come to a point of irreconcilable differences” regarding “the future handling of this action.”  After a hearing on January 4, 2024, the Court granted the motions and signed the proposed orders.  Each of the orders, signed by the Court, states that the orders is “effective upon the filing of the proof of service of this signed order upon the client.”  (Orders dated January 4, 2024, item 5(a).)

To date, Plaintiffs’ counsel has not filed a proof of service of either of the signed orders on the client.  Instead, Plaintiffs’ counsel filed, on January 5, a proof that the minute order – not a signed order – was served on Plaintiffs.

On February 13, 2024, GAMC filed its motion to enforce the settlement agreement.  GAMC served Plaintiffs in pro per by mail and email.  GAMC did not serve Plaintiffs’ counsel. 

On February 15, 2024, Keushkerian filed his motion to enforce the settlement agreement.  Keushkerian served Plaintiffs’ counsel by email and served Plaintiffs in pro per by overnight delivery.

Both motions are set for hearing on March 14, 2024.  No opposition has been filed.

Legal Standard

Code of Civil Procedure section 664.6 provides:

(a) If 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.

Because of the summary nature of a proceeding to enforce a settlement agreement under section 664.6, and because settlement of a lawsuit implicates a substantial right of a litigant, strict compliance with the statutory requirements is required.  (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985; Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)  Before the Legislature amended the statute effective as of 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.)  In any event, however, for a settlement agreement to be enforceable under section 664.6, all “parties” (as that term is defined in the statute) must sign, including the party seeking to enforce the agreement and the party against whom enforcement is sought.  (J.B.B. Investment Partners, supra, 232 Cal.App.4th at p. 985.) 

If the settlement leaves material terms wanting, or confusing, the settlement cannot be enforced through the section 664.6 summary proceeding.  (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].)  Nonetheless, when the “parties intend that an agreement be binding, the fact that a more formal agreement must be prepared and executed does not alter the validity of the agreement.” (Blix St. Records, Inc. v. Cassidy (2010) 191 CA4th 39, 48.) 

It is possible for parties to have an enforceable settlement agreement that is not subject to the summary enforcement proceedings of section 664.6 (including, for example, an enforceable oral agreement to settle or an agreement that is signed by an authorized representative who has the power to bind the party but is not listed in subdivision (b) of the statute).  In those circumstances, a party seeking to enforce the agreement must proceed through other means, such as a separate civil action, an amendment to the answer to add a new affirmative defense, and/or a motion for summary judgment, rather than through the summary procedures of section 664.6.  (See generally Weddington Productions v. Flick (1998) 60 Cal.App.4th 793, 809 [“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.”].)

In ruling on a motion brought under Code of Civil Procedure section 664.6, the court acts as a trier of fact.  The court may consider any admissible evidence, including documents, declarations, and oral testimony.  (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533; 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2023), ¶¶ 12:977-12:978.6.)

Discussion

Before reaching the merits of Defendants’ motions, the Court must address some uncertainty in the record regarding the status of Plaintiffs’ representation. 

On January 4, 2024, the Court granted the motions of Plaintiffs’ counsel to be relieved as counsel.  The orders signed by the Court state that each order is “effective upon the filing of the proof of service of this signed order upon the client.”  (Orders dated January 4, 2024, item 5(a).)

The Court has reviewed its records and does not see any proof of service on Plaintiffs of the orders signed on January 4, 2024.  All that is in the file is a proof that the Court’s minute order (which is not a signed order) on Plaintiffs.  That alone is not sufficient.

As a result, there may well be some (understandable) confusion as between Plaintiffs and Plaintiffs’ counsel regarding the status of their representation.  Given the important rights that are at stake in a motion brought under Code of Civil Procedure section 664.6, the issues relating to the representation of Plaintiffs must be resolved before the Court proceeds to address the merits.

Accordingly, the Court continues the hearing on these motions for approximately 30 days to allow Plaintiffs and Plaintiffs’ counsel to address the issues regarding the status of their representation. 

If Plaintiffs’ counsel continues to represent Plaintiffs, then GAMC must serve its motion on Plaintiffs’ counsel. 

If Plaintiffs’ counsel files a proof of service of the signed orders of January 4, 2024, and thereby makes effective the orders granting the motions to withdraw, then Plaintiffs (either representing themselves or with new counsel) may file and serve any oppositions to the two motions by no later than nine court days prior to the new hearing date.  Defendants may file and serve any replies no later than five court days prior to the new hearing date.

Conclusion

The Court CONTINUES the motions to enforce the settlement agreement for approximately 30 days.

Moving Parties is ORDERED to give notice, including to Plaintiffs and Plaintiffs’ counsel.