Judge: William A. Crowfoot, Case: BC723462, Date: 2022-12-09 Tentative Ruling

Case Number: BC723462    Hearing Date: December 9, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On September 27, 2018, plaintiffs Michael Golden and Samantha Mondrosch (collectively, “Plaintiffs”) filed this wrongful death action against defendants Erik Limon (“Limon”) and Jenevieve B. Hegedus (“Hegedus”) arising from the death of Tracy E. Adams (“Decedent”). Plaintiffs allege that Decedent was riding her bicycle on September 6, 2017, when Limon hit her with his vehicle and drove away without rendering assistance. Plaintiffs allege that Hegedus then hit Decedent a second time with her vehicle and also drove away without rendering assistance. 

On January 18, 2019, Hegedus filed an answer to the Complaint. 

On January 13, 2020, Limon filed an answer to the Complaint and a cross-complaint against Hegedus. 

On July 1, 2020, Plaintiffs filed a request to dismiss Limon from the action with prejudice.  The dismissal was entered on July 14, 2020.

On June 18, 2021, Hegedus filed, without leave of court, a cross-complaint for indemnity, apportionment of fault, and declaratory relief against Limon. 

On March 23, 2022, Hegedus filed, with leave of court, a First Amended Answer (“FAA”).  The FAA asserts an affirmative defense of accord and satisfaction.

On April 7, 2022, the Court granted an ex parte application by State Farm Mutual Automobile Insurance Company (“State Farm”) to intervene on Hegedus’s behalf. 

On May 23, 2022, the Court signed an order granting Limon’s application for determination of good faith settlement. 

On September 20, 2022, State Farm filed this motion for summary judgment or, in the alternative, summary adjudication, on the grounds that they already reached a settlement with Plaintiffs.  On the same day, Hegedus filed a joinder to State Farm’s summary judgment motion and a separate statement. 

On November 9, 2022, Plaintiffs filed their opposition to the motion and joinder.  On November 14, 2022, Plaintiffs filed their evidentiary objections.

On December 2, 2022, State Farm filed its reply papers and evidentiary objections.  State Farm also filed a declaration from Hegedus’s father, James Hegedus. 

On December 6, 2022, Plaintiffs filed a supplemental declaration. 

II.      FACTUAL BACKGROUND

          On or about September 28, 2017, a claim was reported to State Farm relating to the death of Decedent involving an automobile driven by Hegedus.  (State Farm’s Undisputed Material Fact (“UMF”) No. 1.)  The claim was reported by the Gurovich Law Group, who were the initial attorneys for Decedent’s estate and Plaintiffs as Decedent’s heirs.  (UMF No. 2.)  At the time of the accident, Hegedus was driving a 2011 Mitsubishi Galant that was insured by State Farm through an automobile policy issued to Ali H. Farahat and Linda A. Otieno.  (UMF No. 3.)  At the time of the accident, the State Farm policy had a $30,000 policy limit.  (UMF No. 3.)  Over the next many months, State Farm repeatedly tried to obtain information from the named insureds and Hegedus including the facts of the loss and why Hegedus had the vehicle.  (UMF No. 4.)  This was made difficult by the fact that Hegedus was in jail and that the named insured disclaimed any knowledge.  (UMF No. 4.)  In mid-November 2017, State Farm was advised of new counsel for the claimants, who were now being represented by the Law Offices of David Feldman.

          After completing a coverage investigation, on April 12, 2018, State Farm offered its policy limits to Plaintiffs to settle the claim against Hegedus.  (UMF No. 6.)  Plaintiffs’ counsel, David Feldman, rejected the policy limits offer, indicating that he planned on filing suit to determine whether Hegedus was in the course and scope of employment at the time of the accident.  (UMF No. 6.)  As of April 2018, State Farm still had not reached Hegedus.  (UMF No. 6.) 

On April 26, 2018, during a status call between State Farm and Plaintiffs’ counsel, counsel indicated that suit had not yet been filed, Hegedus was released from jail for time served, and that a complaint would likely be served on her by publication.  (UMF No. 8.)  On September 10, 2018, State Farm again offered the policy limits to Plaintiffs.  (UMF No. 9.) 

By letter dated February 4, 2020, Plaintiffs’ counsel made a policy limits settlement demand.  (UMF No. 12.)  The demand conditioned the offer, requiring the submission of the Declaration pages of State Farm and Interinsurance Exchange of the Automobile Club (“AAA”) policies, a proposed Release of all wrongful death claims, and a declaration from Hegedus attesting that she was not in the scope of her employment or agency or in a joint venture at the time of the accident, and that she had no other insurance that would defend and indemnify her for the wrongful death claims.  (UMF No. 12.)  The demand indicated the acceptance must be made and documents delivered by 5:00 p.m., March 5, 2020.  (UMF No. 12.) 

On February 12, 2020, defense counsel Stephen Pasarow and Katherine L. Curtis from Knapp Petersen Clarke (“KPC”) wrote to Hegedus at her parents’ home address to advise her of Plaintiffs’ policy limits demand and State Farm’s intent to accept the offer on her behalf.  (UMF No. 13.)  Defense counsel requested Hegedus’s updated contact information.  (UMF No. 13.)  Defense counsel also made several telephone calls to Hegedus at her last known telephone number but she did not answer the calls and messages were left.  (UMF No. 14.) 

Defense counsel enlisted the assistance of a private investigator on February 27, 2020, to obtain Hegedus’s signature on the declaration required under the February 4, 2020 policy limits demand.  (UMF No. 15.)  Defense counsel responded to the February 4, 2020, policy limits demand at 4:03 p.m. on March 5, 2020. Defense counsel submitted copies of State Farm’s and AAA’s Declaration pages and a proposed Release.  (UMF No. 16.)  Defense counsel also requested a 30-day extension to submit Hegedus’s declaration because she could not be located.  (UMF No. 16.) 

On March 10, 2020, Plaintiffs’ counsel refused to provide a 30-day extension and took the position that the acceptance letter was a counteroffer because the proposed release included Hegedus’s family members and her insurers as releasees, and because it included affidavits made under Probate Code section 13101.  (UMF No. 18.)  On March 11, 2020, defense counsel indicated to Plaintiffs’ counsel that the signed declaration from Hegedus had been received.  (UMF No. 19.)  A copy of the declaration was not transmitted to Plaintiff’s counsel until March 13, 2020. 

III.     LEGAL STANDARDS

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc., §437c, subd. (c).)  Similarly, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  (Code Civ. Proc., § 437c, subd. (f))  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty, and will proceed in all procedural respects as a summary judgment motion.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

Where a defendant seeks summary judgment or adjudication, the defendant must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Code Civ. Proc., §437c, subd. (p)(2).) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 583.)  Until the moving party has discharged its burden of proof, the opposing party has no burden to come forward with any evidence. Once the moving party has discharged its burden as to a particular claim, however, the opposing party may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Code Civ. Proc., §437c, subd. (p)(2).)

The court strictly construes the moving party's supporting evidence while the opposing party’s evidence is liberally construed.  Doubts as to the propriety of the motion should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20.)  The court does not evaluate the credibility of testimony.  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.) 

The court applies the three-step analysis to motions for summary judgment or adjudication: (1) identify the issues framed by the pleading, (2) determine whether the moving party established facts which negate the opponents’ claim, (3) if a defendant meets its threshold burden of persuasion and the burden shifts, determine whether the opposing party has controverted those facts with admissible evidence.  (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

IV.     EVIDENTIARY OBJECTIONS

In light of the declaration of James Hegedus, which provides the appropriate foundation to authenticate Hegedus’s declaration signed on March 8, 2020, Plaintiffs’ untimely evidentiary objection to the declaration is OVERRULED. 

Pursuant to Code of Civil Procedure section 437c(q), the Court rules on State Farm’s objections to evidence the Court found material to its disposition of the motion as follows:

Objection Nos. 1-4, Overruled. 

V.      REQUEST FOR JUDICIAL NOTICE

          State Farm’s request for judicial notice of their answer filed on April 7, 2022 is GRANTED.  Defendant’s request for judicial notice of her answer filed on March 23, 2022 is GRANTED.

VI.     DISCUSSION

An accord is “an agreement to accept, in extinction of an obligation, something different from or less than that which the persona agreeing to accept is entitled.”  (Civ. Code, § 1521.)  Acceptance “by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction.”  (Civ. Code, § 1523.)

The essential elements of a valid contract require parties capable of contracting, their consent, a lawful object, and consideration.  (Civ. Code, § 1550.)  Consent must be free, mutual, and communicated by each to the other. (Civ. Code, § 1565.)  Performance of conditions of a proposal, or the acceptance of the consideration offered with a proposal is an acceptance of the proposal.  (Civ. Code, § 1584.)  A valid acceptance “must be absolute and unqualified” or must include in itself an acceptance of that character which the proposer can separate from the rest; a “qualified acceptance” constitutes a rejection terminating the offer because it is a new proposal or counteroffer which must be accepted by the former offeror now turned offeree before a binding contract results.  (Civ. Code, § 1585; Wristen v. Bowles, 82 Cal. 84, 87, Meux v. Hogue, 91 Cal. 442, 448; Niles v. Hancock, 140 Cal. 157, 161; King v. Stanley, 32 Cal.2d 584, 588; Smith v. Holmwood, 231 Cal.App.2d 549, 552. 

State Farm argues that Plaintiffs have already settled their claims against Hegedus for policy limits in March 2020 and that Hegedus accepted Plaintiff’s policy limits offer when defense counsel sent a letter on March 5, 2020.  The letter, attached as Exhibit 11 to the Declaration of Cindy Morrow and included in State Farm’s Appendix of Evidence says:

On behalf of our client, we have authority from State Farm and from [Hegedus’s] other insurer, Interinsurance Exchange of the Automobile Club (“AAA”), to accept the demand set forth in your letter of February 4, 2020, and by this letter do so.

Your letter provides that with the acceptance of the demand, we are to provide a release, the declaration pages for the policies and a declaration from our client.  We enclose a release and both policy declaration pages.  We have undertaken to locate our client so the requested declaration referenced in the demand can be provided.  Please note, we are having difficulty contacting [Hegedus] and have enlisted the assistance of an investigator.  As such we respectfully request thirty days (30) from the date of this letter to provide you with our client’s declaration.  It is our intention to comply with the terms of the demand.

We anticipate that the release agreement will provide protection for the persons and entities insured under the State Farm and AAA policies.  We also note the involvement of [Limon], who has cross-complained against our client.  We anticipate including standard section 877 good faith settlement wording in the settlement agreement which is not inconsistent with the terms of the demand, and consistent with our client’s complete protection promised in your settlement demand.  We do not intend by these provisions to reject or present a counter off, but simply clarify settlement terms consistent with your demand letter. 

We will be in touch regarding the status of our client’s declaration, and look forward to the amicable resolution of this matter.

Please contact our office upon receipt of this letter to discuss our request for an extension to provide your office with our client’s signed declaration. 

(Appendix, Ex. 11.) 

On March 10, 2020, Plaintiffs’ counsel refused to accept the “new terms”, which he specifically identified as: (1) providing a 30-day extension to provide a signed declaration from Hegedus, (2) adding Hegedus’s family members as releasees and AAA and State Farm as parties to the Release, (3) requiring affidavits under Probate Code section 13101 as a condition of settlement.  (Appendix, Ex. 5.) 

State Farm argues that these “new terms” are not a “qualified acceptance” and that it substantially complied with Plaintiff’s policy limits demand.  First, State Farm contends that the proposed written release is not inconsistent with the terms and conditions of Plaintiffs’ settlement offer because Plaintiffs’ offer anticipated that there would be a release of wrongful death claims against “your insured(s) and their heirs only, (but no other persons or entities)”.  (Appendix, Ex. 1.)  State Farm’s insureds include Linda A. Otieno, Ali H. Farat, and Hegedus, while Hegedus is the named insured under the AAA policy.  Therefore, including Austin Hegedus, BJN Hegedus, and James Hegedus as releasees was not inconsistent with the settlement offer, in State Farm’s view.  However, there is no evidence explaining who these individuals are and how they are Hegedus’s heirs. 

Second, State Farm argues that the affidavits under Probate Code section 13101 are required by Los Angeles Superior Court Rule, rule 4.72, because the settlement funds would be distributed to Plaintiffs, who are Decedent’s successors-in-interest, and therefore do not constitute a “counteroffer.”  However, as Plaintiff points out, those affidavits are not actually required because a cause of action for wrongful death accrues directly to the heirs, and there would be no need to transfer any assets through Decedent’s estate. 

Third, State Farm argues that Hegedus eventually provided a signed declaration, and since the March 5, 2020, deadline was arbitrary, her attorney’s request for a 30-day extension was a reasonable request for additional time, not a counter-offer.  State Farm cites to cases which hold that performance within a reasonable time after the due date stated in the contract constitutes compliance with the contract.  However, in Walsh v. Walsh (1940) 42 Cal.App.2d 287 and Jordan v. Reynolds (1950) 97 Cal.App.2d 194, the parties had already entered into an agreement.  Here, the deadline for Hegedus to accept Plaintiffs’ offer expired on March 5, 2020, at 5:00 p.m. and Plaintiffs’ letter specified that accepting the offer required delivering a declaration signed by Hegedus under penalty of perjury attesting that she was not in the scope of her employment or agency or engaged in a joint venture, or that no other insurance policy will defend or indemnify her.  It is undisputed that the declaration was not delivered before the offer expired at 5:00 p.m. on March 5, 2020, and was in fact only executed on March 8, 2020. 

Accordingly, State Farm has not shown that Hegedus entered into a settlement agreement with Plaintiffs that would bar this claim.  Furthermore, even if State Farm made a prima facie showing that a settlement agreement existed, Plaintiffs successfully raise a triable issue of material fact by referring to Hegedus’s deemed admissions.  “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.”  (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)  Requests for admissions “differs fundamentally from the other five discovery tools (depositions, interrogatories, inspection demands, medical examinations, and expert witness exchanges) . . . [because] admission requests seek to eliminate the need for proof: ‘The purpose of the admissions procedure . . . is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.’  Sometimes, the admissions obtained will even leave the party making them vulnerable to summary judgment.”  [Citations.]  Matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contrary evidence.  [Citation.]”  (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.)

          Even if State Farm contends that Hegedus’s deemed admissions are not binding upon it, they still raise a triable issue of fact.  Hegedus was deemed to have admitted that her counsel’s letter sent on March 5, 2020 was a counteroff, that she never reached an agreement with Plaintiff, and that she had no facts to support her affirmative defense of accord.  (Plaintiffs’ Appendix of Evidence, Ex. 3  RFA Nos. 17, 18, 20-22, 24.)

          In light of the presence of triable facts, State Farm and Hegedus’s motions for summary judgment/summary adjudication are DENIED. 

VI.     CONCLUSION

          In light of the foregoing, State Farm and Hegedus’s motions for summary judgment/adjudication are 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’s 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.