Judge: Teresa A. Beaudet, Case: 22STCV02945, Date: 2023-08-15 Tentative Ruling

Case Number: 22STCV02945    Hearing Date: August 15, 2023    Dept: 50

THERE ARE TWO TENTATIVES:

Superior Court of California

County of Los Angeles

Department 50

Kavon Adli and David Newman of the Internet Law Group (“Counsel”) move to be relieved as counsel for plaintiff and cross-defendant South Gate Pack N Ship, LLC.

While Counsel has provided sufficient reason for withdrawal, neither Counsel’s declaration nor the proposed order reference the August 15, 2023 Case Management Conference in this matter.  

If Counsel provides the Court with a revised declaration and order prior to the hearing, the Court will grant the motion.¿¿ 

Counsel is ordered to give notice of this order.¿ 

DATED:  August 15, 2023                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Superior Court of California

County of Los Angeles

Department 50

Background

This action was filed on April 27, 2022 by Plaintiff South Gate Pack ‘N Ship, LLC (“South Gate”) against Defendant Liberty Plaza, LLC (“Liberty Plaza”). The Complaint alleges causes of cation for (1) breach of written contract, (2) accounting, and (3) violation of Business and Professions Code section 17200 et seq.

On May 26, 2022, Liberty Plaza filed a Cross-Complaint against Cross-Defendants South Gate and Cesar Caranza. The Cross-Complaint alleges causes of action for (1) breach of contract, (2) tortious interference with contractual relations, (3) trespass, (4) injunction, and (5) damages.

Liberty Plaza now moves for an “order to enforce mediated settlement agreement.” South Gate opposes. 

Discussion

“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.” ((Code Civ. Proc., § 664.6, subd. (a).)

“Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” ((Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 [internal citations omitted, emphasis in original].)

Liberty Plaza submits the declaration of its counsel in support of the instant motion, who states that “[o]n March 8, 2023 parties entered into an agreed upon mediation.” (Selki Decl., ¶ 4.) The mediator proposed an agreement to both parties containing detailed terms of a settlement. (Selki Decl., ¶ 4.) Liberty Plaza’s counsel states that “[b]oth parties accepted the mediator’s proposal and communicated their responses to the mediator by the deadline on March 13, 2023…” (Selki Decl., ¶ 6.) Liberty Plaza’s counsel states that “[o]n March 14, 2023, the mediator communicated to both parties that we had a ‘deal’.” …” (Selki Decl., ¶ 6, Ex. 1.)

Liberty Plaza’s counsel states that on March 14, 2023, South Gate’s counsel offered to draft the final settlement agreement. (Selki Decl., ¶ 7.) On March 20, 2023, South Gate’s counsel emailed his draft to Liberty Plaza’s counsel, which was subsequently signed by Liberty Plaza without any corrections or modifications. (Selki Decl., ¶ 7.) Liberty Plaza’s counsel states that “[h]owever, plaintiff has refused to comply with the terms of the agreed upon mediator proposal.” (Selki Decl., ¶ 7.)

In the motion, Liberty Paza asserts that “the terms of the proposal are complete and no other terms, i.e. the terms added by Mr. Newman in his draft, are necessary to make it enforceable. Section 664.6(b)(2) applies here in that both parties’ attorneys accepted the mediator’s proposal on behalf of their clients…” (Mot. at p. 6:5-7.) Liberty Plaza requests that the Court enforce the “mediated settlement agreement.” (Mot. at p. 2:2.)

In its opposition, South Gate asserts that “[i]n this case, § 664.6 does not allow the relief sought by Liberty Plaza. Neither South Gate nor Cesar Carranza signed the settlement agreement, and whatever ‘agreement’ their counsel indicated at the mediation is of no effect.” (Opp’n at p. 4:2-4.)

South Gate notes that Liberty Plaza provides evidence in connection with the motion that South Gate’s counsel sent a March 20, 2023 email to Liberty Plaza’s counsel stating, “I have attached a draft of the settlement agreement that mirrors the main points in the mediator’s proposal. If you have any revisions let me know, otherwise please sign and date and then I will have my client do the same.” (Selki Decl., ¶ 6, Ex. 1.) South Gate thus asserts that “[t]he purported settlement agreement that Liberty Plaza is trying to enforce is a ‘draft’ – nothing more. It was not a final expression of the parties’ full agreement…” (Opp’n at p. 1:23-25.)

In addition, South Gate notes that a “Settlement and Release Agreement” is attached to Liberty Plaza’s counsel’s declaration. As noted by South Gate, this agreement is not signed by any party. As set forth above, Code of Civil Procedure section 664.6, subdivision (a) provides that “[i]f 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.” (Emphasis added.)

In the reply, Liberty Plaza counters that “[w]e are not referring to the draft settlement agreement presented by Mr. Newman as purported to by Mr. Newman in his opposition papers. It is the mediator’s proposal that was accepted by both parties.” (Reply at p. 2:18-20.) In the motion, Liberty Plaza notes that Code of Civil Procedure section 664.6, subdivision (b)(2) provides, “[f]or 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.”

Liberty Plaza asserts that “both parties’ attorneys accepted the mediator’s proposal on behalf of their clients through their email communications with the mediator and signed their names at the bottom of their email messages.” (Mot. at p. 5:19-21.) However, the Court notes that the email correspondence attached to Liberty Plaza’s counsel’s declaration does not appear to support this assertion.

Liberty Plaza provides a copy of the mediator’s March 14, 2023 email, which provides, inter alia, “[c]ongratulations, David and David. You both accepted the Mediator Proposal, so I’m pleased to report that you have a deal. I will leave the drafting to you two to work out, but I’ll be available to help work through any snags you might hit in the process…” (Selki Decl., ¶ 6, Ex. 1.) Liberty Plaza provides a March 14, 2023 email from David Newman, South Gate’s counsel, stating, “[t]hank you, Jack, for putting this together. David - unless you want to I will do the first draft of the agreement and provide it to you for review and comment.” (Selki Decl., ¶ 6, Ex. 1.) This March 14, 2023 email from Mr. Newman does not contain Mr. Newman’s name at the bottom of the email message, as Liberty Plaza appears to assert. (Selki Decl., ¶ 6, Ex. 1.)

Liberty Plaza also provides a copy of its counsel’s March 14, 2023 email, which states “Thank you Jack for all your efforts. David, please go ahead and write it up. Thank you.” (Selki Decl., ¶ 6, Ex. 1.) This email is followed with, “Sincerely, David Selki.” (Ibid.) However, Liberty Plaza does not provide any legal authority demonstrating that is sufficient to constitute a signature for purpose of Code of Civil Procedure section 664.6.

            The Court notes that “there must be a writing signed by the parties that contains the material terms.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 797 [internal quotations omitted.) “Because of its summary nature, strict compliance with the requirements of [Code of Civil Procedure] Section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” ((J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984 [internal quotations omitted].) Liberty Plaza does not appear to demonstrate that both parties’ counsel signed a writing that contains the material terms of the parties’ settlement.

Conclusion

Based on the foregoing, Liberty Plaza’s motion is denied. 

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Liberty Plaza is to provide notice of this ruling.¿

DATED:  August 15, 2023                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court