Judge: William A. Crowfoot, Case: 20STCV17869, Date: 2023-01-06 Tentative Ruling

Case Number: 20STCV17869    Hearing Date: January 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 11, 2020, plaintiff Melanie Kirschner-Oomen (“Plaintiff”) filed this action against defendant Arash Yousefi (“Defendant”) arising from a June 15, 2018, motor vehicle collision.  On December 14, 2022, Plaintiff filed this motion to enforce settlement.  Defendant filed an opposition on December 22, 2022.  No reply brief is yet on file. 

“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.”  (Code Civ. Proc., § 664.6.) 

In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.  (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)  The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create 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).  The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court.  [Citation.]”  (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a “writing signed by the parties” sufficient to satisfy the requirements of Section 664.6].)

As an initial matter, this motion was not timely served.  Based on the hearing date of January 6, 2023, this motion should have been served electronically on December 9, 2022.  The proof of service attached to this motion shows that this motion was not served until December 14, 2022. 

However, even if it were timely served, Defendant persuasively argues that there was no agreement between the parties.  First, Plaintiff does not submit any writing “signed by the parties.”  The release and settlement agreement attached as Exhibit E to her motion is not signed by Defendant.  Second, Plaintiff claims that a binding settlement agreement was entered into on October 28, 2022, in the amount of $45,001.  But Defendant explains that the settlement offer was for $40,001, which Plaintiff did not accept.  Even though the release and settlement agreement that was executed by Plaintiff and her counsel states that the settlement amount was $45,001, Defendant submits email correspondence and a copy of a 998 offer showing that Defendant only intended to offer $40,001, not $45,001.  Further, Defendant sent a revised settlement agreement on October 28, 2022 at 5:00 p.m. which correctly reflected the settlement amount of $40,001, and kept the offer open until October 31, 2022 at 12PM.  It is undisputed Plaintiff did not accept this offer. 

In light of the foregoing, Plaintiff’s motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.