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This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 00:41:35 (UTC).

CHRIS IRWIN ET AL VS RADNET INC ET AL

Case Summary

On 04/01/2016 CHRIS IRWIN filed a Personal Injury - Medical Malpractice lawsuit against RADNET INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5086

  • Filing Date:

    04/01/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiffs and Petitioners

IRWIN NATALIA

IRWIN CHRIS

Defendants and Respondents

MUIR SUSIE DR.

RADNET MANAGED IMAGING SERVICES INC.

DOES 2 THROUGH 40

ASSISTANT DOE 1

SAN FERNANDO VALLEY INTERVENTIONAL RADIO-

RADNET INC.

RADIO- SAN FERNANDO VALLEY INTERVENTIONAL

FREEMAN JOHN P.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF ROYA MOHAMMADI

MOHAMMADI ROYA

Defendant Attorney

LOWARY MARK ERIC ESQ.

 

Court Documents

Minute Order

1/17/2018: Minute Order

SUBSTITUTION OF ATTORNEY

4/9/2018: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

4/9/2018: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

4/9/2018: SUBSTITUTION OF ATTORNEY

Opposition

11/15/2018: Opposition

Reply

11/19/2018: Reply

Order

11/28/2018: Order

Minute Order

11/28/2018: Minute Order

Minute Order

4/2/2019: Minute Order

SUMMONS

4/1/2016: SUMMONS

PROOF OF SERVICE OF SUMMONS

7/20/2016: PROOF OF SERVICE OF SUMMONS

DUE DILIGENCE

7/20/2016: DUE DILIGENCE

PROOF OF SERVICE OF SUMMONS

7/20/2016: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

7/20/2016: PROOF OF SERVICE OF SUMMONS

Unknown

8/19/2016: Unknown

REPLY TO PLAINTIFFS' OPPOSON TO PETITION TO COMPEL ARBITRATION; EXHIFLITS A-D

9/9/2016: REPLY TO PLAINTIFFS' OPPOSON TO PETITION TO COMPEL ARBITRATION; EXHIFLITS A-D

NOTICE OF STAY OF PROCEEDINGS

11/16/2017: NOTICE OF STAY OF PROCEEDINGS

DECLARATION OF JOHN P. FREEMAN IN SUPPORT OF THE NOTICE OF STAY OF PROCEEDINGS

11/16/2017: DECLARATION OF JOHN P. FREEMAN IN SUPPORT OF THE NOTICE OF STAY OF PROCEEDINGS

21 More Documents Available

 

Docket Entries

  • 04/02/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (Dismissal for Failure to Prosecute (3yrs)) - Held - Continued

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  • 04/02/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal Dismissal for Failure to Pr...)); Filed by Clerk

    Read MoreRead Less
  • 03/25/2019
  • at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion to Compel Arbitration

    Read MoreRead Less
  • 03/08/2019
  • at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion to Compel Arbitration - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 11/28/2018
  • at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Stay of Proceedings - Held - Continued

    Read MoreRead Less
  • 11/28/2018
  • at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Order (TO Continue Stay ReLiquidation) - Held - Continued

    Read MoreRead Less
  • 11/28/2018
  • Minute Order ((Hearing on Motion for Stay of Proceedings; Hearing on Motion ...)); Filed by Clerk

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  • 11/28/2018
  • Order (By the Court to decline to rule on motion, case still in arbitration and stay); Filed by Clerk

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  • 11/19/2018
  • Reply (to Opposition re Motion for an Order Staying Proceedings; Declaration of John Freeman, Esq.); Filed by San Fernando Valley Interventional Radio- (Defendant); Radnet Managed Imaging Services, Inc. (Defendant); Susie, Dr. Muir (Defendant)

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  • 11/15/2018
  • Plaintiff's Opposition to Defendants' Motion for an Order Staying Proceedings; Filed by Chris Irwin (Plaintiff); Natalia Irwin (Plaintiff)

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53 More Docket Entries
  • 07/20/2016
  • DUE DILIGENCE

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  • 07/20/2016
  • DUE DILIGENCE

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  • 07/20/2016
  • Proof of Service (not Summons and Complaint); Filed by Chris Irwin (Plaintiff)

    Read MoreRead Less
  • 07/20/2016
  • Proof of Service (not Summons and Complaint); Filed by Chris Irwin (Plaintiff)

    Read MoreRead Less
  • 07/20/2016
  • Proof of Service (not Summons and Complaint); Filed by Chris Irwin (Plaintiff); Natalia Irwin (Plaintiff)

    Read MoreRead Less
  • 07/20/2016
  • Declaration re: Due Diligence; Filed by Chris Irwin (Plaintiff)

    Read MoreRead Less
  • 07/20/2016
  • Proof of Service (not Summons and Complaint); Filed by Chris Irwin (Plaintiff); Natalia Irwin (Plaintiff)

    Read MoreRead Less
  • 04/01/2016
  • SUMMONS

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  • 04/01/2016
  • Complaint; Filed by Chris Irwin (Plaintiff); Natalia Irwin (Plaintiff)

    Read MoreRead Less
  • 04/01/2016
  • COMPLAINT 1) NEGLIGENCE; ETC

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Tentative Rulings

Case Number: BC615086    Hearing Date: May 19, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRIS IRWIN, ET AL.,

Plaintiff(s),

vs.

RADNET INC., ET AL.,

Defendant(s).

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CASE NO: BC615086

[TENTATIVE] ORDER GRANTING MOTION TO ENFORCE ARBITRATION AWARD

Dept. 31

Dept. 31

1:30 p.m.

May 19, 2021

 

1. Background

Plaintiffs, Chris Irwin (“Chris”) and Natalia Irwin (“Natalia”) (collectively, “Plaintiffs”) filed this action against Defendants, Radnet Management Inc. and Susie Muir, M.D., erroneously sued as, Radnet, Inc., Radnet Managed Imaging Services, Inc., and San Fernando Valley lnterventional Radiology, Imaging Center, and Dr. Susie Muir, (collectively, “Defendants”) for negligence and loss of consortium.

Plaintiffs, at this time, moves for an order enforcing the terms of the parties’ 1/8/21 Arbitration Settlement Agreement, and the 2/8/21 Binding Mediation Award of $800,000.00.

This matter was originally heard on 3/19/21, so that Defendants could reply to new evidence of a modified judgment Plaintiffs submitted for the first time in reply. Defendants submitted a supplemental opposition on 4/1/21, and Plaintiffs filed a supplemental reply on 4/7/21.

2. Motion for Order and Entry of Judgment

a. Parties’ Positions

Plaintiffs assert the parties entered into a Binding Mediation Agreement on 1/8/21, and that the mediator, Darrell Forgey (“Mr. Forgey”) made the final award of $800,000 to Plaintiffs to be paid by Defendants, with $700,000 to Chris and $100,000 to Natalia. Plaintiffs contend that Defendants now refuse to provide an anticipated date on which Defendants will pay Plaintiffs. Plaintiffs argue that Defendants have claimed they need to get a consent judgment signed, but no judgment has been received. Further, Plaintiffs contend the parties agreed the judgment could be enforced pursuant to CCP § 664.6.

In opposition, Defendants submit a declaration from defense counsel providing that the parties agreed to participate in binding mediation with Mr. Forgey and understood Mr. Forgey’s ruling would be final. Defendants have allegedly been using consent judgment to procure settlement funds for other matters that are submitted to a re-insurer for payment. Defendants went into the mediation with the expectation that this would be the method to fund the mediation award in this case, and this consent judgment approach was explained to Plaintiffs and Mr. Forgey. Defendants assert that Mr. Forgey dismissed Defendant Susie Muir, M.D. (“Dr. Muir”), and then Mr. Forgey issued his award on 2/8/21, with language stating the award was to be converted to a consent judgment. Defendants assumed based on the language that it was permissible to await funding from the re-insurer. Defendants, however, are unable to provide a specific timeline as to when funding will be available.

In reply, Plaintiffs contend the arbitration/mediation settlement agreement is entitled to judgment and enforceability. Plaintiffs contend that Defendants do not provide any authority for their position that the court should delay entering a judgment against them. Moreover, Plaintiffs assert that Mr. Forgey on 3/8/21 modified the award to provide for a due date for the payment of 4/8/21, with interest to accrue at 7% thereafter. In addition, Plaintiffs aver they never agreed to a consent judgment, and there is no language to indicate the $800,000 payment would not proceed without a consent judgment.

b. Supplemental Briefs

Defendants, in their supplemental opposition, assert they strongly emphasized the importance of a consent judgment to Mr. Forgey during the mediation, and that at no time during the mediation did Mr. Forgey object to Defendants’ consent judgment proposal. Defendants assert they believed this funding method was being explained to Plaintiffs and their counsel when Mr. Forgey spoke with Plaintiffs during the proceedings. Defendants argue it is significant and dispositive that Mr. Forgey specifically included the consent language in the initial binding mediation award. Further, Defendants argue Mr. Forgey did not remove the consent judgment language from the award when he modified the award. Defendants aver the consent judgment term in the mediation award was material, and Defendants’ proposal for the payment was an integral part of the mediation award.

In the supplemental reply, Plaintiffs assert Defendants’ argument the consent judgment was supposed to be against a third party, such as their insurance company, is irrelevant and inadmissible as to what was allegedly told to Mr. Forgey. Plaintiffs argue the court has authority pursuant to CCP § 664.6 to enter judgment because the binding mediation was sufficiently certain to be enforceable. Further, Plaintiffs argue that pursuant to CCP §1285, the court can confirm Mr. Forgey’s award. Plaintiffs contend the mediation agreement is binding, and there was never a meeting of the minds to a consent judgment. The funding of the $800,000 is at most a secondary term to the agreement.

c. 4/14/21 Hearing and Second Set of Supplemental Briefs

At the 4/14/21 hearing, the court continued the matter to allow Defendants to respond to a sur-reply filed that same date by Plaintiff. The court in particular asked the parties to address whether the signed mediation agreement was a settlement agreement for purposes of entering a judgment under CCP § 664.6.

Defendants filed a further supplemental opposition contending the mediation agreement is not a settlement agreement because it is clear there was no meeting of the minds as to how any settlement would be paid. Defendants contend the mediation agreement is silent on these issues, and there are no provisions on how payment of an award should be made or whether there are specific deadlines. Further, Defendants contend Muir should be dismissed pursuant to the binding mediation award’s language.

Plaintiffs, in a supplemental reply, asserts Defendants fail to refute the agreement, award, and settlement reached by the parties. Plaintiffs argue the agreement is enforceable under CCP § 664.6 because the parties agreed to binding mediation, which was memorialized in a signed writing. Additionally, Plaintiffs contend the agreement does not provide for a piecemeal dismissal of Muir prior to payment of the settlement amount.

d. CCP § 664.6

Pursuant to CCP § 664.6: “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.”

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) To enforce a written settlement agreement under CCP section 664.6, the following three elements must be met: (1) the parties must have come to a meeting of the minds on all material points; (2) there must be a writing that contains the material terms of the agreement; and (3) the writing must be signed by the parties. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797-98.)

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.

(CCP § 664.6(b).)

Pertaining to a request for the trial court to retain jurisdiction under CCP 664.6, the request ‘ “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’ [Citation.] The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’ [Citation.]” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.)

In this case, the parties signed and entered into a Binding Mediation Agreement on or about 1/8/21, providing in relevant part,

This will confirm this matter has been converted to a "Binding Mediation" wherein I am authorized to Issue a Binding Mediator's Proposal after execution of this document by counsel and the parties if the matter cannot be concluded informally. Counsel and the parties are waiving their right to proceed further and agreeing to conclude this litigation in its entirety and forever by my proposal. I have already made disclosures as part of the process and am unaware of any additional discloseable [sic] Information which would affect my ability to be fair and impartial to both (all) sides.

By executing this document, you are representing that I have your and your client(s) express authority to enter into this BINDING Agreement…

(Mot. Exh. A.) On 2/8/21, the mediator, Mr. Forgey issued the following award:

Let me dispose of the claims against Dr. Muir first. In my view, the claims against her fail and she should be dismissed for a waiver of costs. The tech Gregorio and RadNet, as her employer, are responsible for plaintiffs injuries and damage and have so admitted.

Now, based on my review and analysis, along with my 48 years of experience and a healthy dose of common sense, I make the following BINDING Mediator's Proposal. A total of $800,000 with $700,000 for Mr. Irwin for past and future pain and suffering, past and future medical expenses and loss of earnings and $100,000 for Mrs. Irwin for loss of consortium. It is agreed that this proposal will be converted to a "consent judgment".

(Reply Exh. A.)

Plaintiff provides that on 3/8/21, Mr. Forgey modified the Binding Mediation as follows:

During the course of our discussions on 1.27.21, I was advised that payment would not be a problem and there were sufficient funds for any proposal I might make. The defendants admitted liability and knew an award was forthcoming. Mr Thorsen, the insurance rep, advised of the same and I did not include a timetable for payment which I sometimes do. It has come to my attention that payment may be delayed and I am directing payment to be made by Thursday 4.8.21 which would be 60 days from the date of my proposal. The parties agreed to this proceeding as an efficient and effective means of resolution and I was assured that timely payment would occur. Thereafter, interest at the rate of 7% will accrue.

(Id.)

The mediation agreement is properly signed by Plaintiffs, Plaintiffs’ counsel and Defendants Counsel. (CCP § 664.6(b).) Defendants do not dispute they agreed to Binding Mediation with Mr. Forgey, or otherwise contest the amount awarded to Plaintiffs. Defendants primarily argue they understood it was permissible to wait funding from the re-insurer to pay Plaintiffs. The term “binding mediation” is sufficiently certain to and the evidence makes clear the parties understood what procedure was contemplated when they agreed to the binding mediation. (Bowers, 206 Cal.App.4th at 734.)

Furthermore, Mr. Forgey’s modified award clearly required payment by 4/8/21, and made no mention of any consent judgment or that Defendants would await funding from a re-insurer before paying Plaintiffs. Rather, Mr. Forgey asserts he was advised payment would not be a problem and directs payment to Plaintiffs is required by a specific date.

This evidence requiring payment by 4/8/21 shows the reference to a consent judgment was not a material term. This interpretation is further supported by an email by Mr. Forgey dated 4/7/21, stating:

Due to developments as stated in my 3.8.21 E-mail, I modified the Proposal to include the due date of 4.8.21 for the $800,000 payment with interest accruing thereafter at the rate of 7%. As previously indicated, liability was admitted for the tech Gregorio and remaining defts with Dr Muir being found blameless for this catastrophe. However, dismissal of Dr. Muir would not be piecemealed. With the admission of liability, an award for pltffs was a foregone conclusion with the only issue remaining the amounts.

At no time was a "Consent Judgment" deemed to be a material term; hence it was not included in my 3.8.21 E-mail. Further, I understood the "Consent Judgment" was to be against the defts and never discussed that it would be against Fa irway or any other insurance entity. The topic of the Fairway BK was never discussed during the mediation proceeding. Rather, per Mr Thorsen, it would be a means of facilitating payment of the Binding Proposal in a timely fashion. There was no discussion about payment of the $800,000 proposal being contingent upon a "Consent Judgment". Furthermore, there was NEVER an indication that payment would be delayed or piecemeal. Had there been, I would have terminated the proceeding and advised t he parties and counsel to seek relief. I was aware of the Fairway BK proceeding, but at no time was it indicated by the defense that payment would be delayed or partial and I was assured that defts had ample and sufficient funds.

(Sur-Reply Filed 4/14/21 Exh. J.)

The binding mediation, thus, is an enforceable settlement agreement for purposes of entering judgment under CCP § 664.6. Plaintiffs’ motion complies with the statutory requirements of CCP § 664.6. Therefore, pursuant to CCP § 664.6, Plaintiff’s motion is granted. Judgment is entered against Defendants in the total amount of $800,000.00 with 7% interest accruing thereafter beginning on 4/8/21.

As to Defendants’ arguments Muir should be dismissed, the court notes the agreement did not require Muir’s dismissal prior to payment of the settlement amount, and so it does not dismiss Muir at this time.

e. CCP § 1285

Alternatively, even if the mediation agreement were not enforceable under CCP § 664.6, the mediation award is confirmed pursuant to CCP § 1285.

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is served. (CCP §§ 1288, 1288.4.)

The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) CCP § 1285.4 states a petition under this chapter shall:

a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

b) Set forth the names of the arbitrators.

c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(CCP § 1285.4.)

“Contractual arbitration awards, if valid, are presumed to be binding and final.” (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1218 [fn omitted].) “A party petitioning to compel arbitration must allege ‘the existence of a written agreement to arbitrate a controversy....’ ” (Id. at 1219.)

Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation [citation]—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. [Citations.]

(Id.)

Consequently, “… a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.’ [Citation.] … ‘There is indeed a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitrable.’ ” (Id. 1219-20.) “Thus, the party seeking to enforce an award must prove by a preponderance of the evidence that a valid arbitration contract exists. The court may not confirm an award without first finding the parties agreed in writing to arbitrate their dispute, unless a judicial determination of the issue has already been made (e.g., by a court considering a petition to compel arbitration).” (Id. at 1220.)

“An ‘arbitration agreement is subject to the same rules of construction as any other contract....’ ” (Id. at 1221.) Further, a client is bound by an arbitration agreement signed by his or her counsel only if the client consented to or ratified the agreement. (Id.) “ ‘[A]n attorney, merely by virtue of his employment as such, has no apparent authority to bind his client to an agreement for arbitration.... When a client engages an attorney to litigate in a judicial forum, the client has a right to be consulted, and his consent obtained, before the dispute is shifted to another, and quite different, forum, particularly where the transfer entails the sort of substantial consequences present here.’ [Citation.]” (Id. [fn omitted].)

“[W]hen it comes to such a substantial matter as compromise of an action, ‘a person dealing with an attorney, as dealing with any agent, must ascertain whether the agent has authority to do the purported act and assumes the risk if in fact the agent has no such authority.’ ” (Id. at 1222.) Moreover, “[a]n attorney's unauthorized act may bind his or her client if the client ratifies such action. [Citation.] A client, however, does not necessarily ratify an attorney's unauthorized arbitration stipulation simply by allowing the arbitration to proceed to an award.” (Id.) Additionally, “[b]ecause an attorney lacks apparent authority to sign an arbitration contract on his or her client's behalf, the lawyer's signature alone is not sufficient evidence the client consented to arbitration. A party may, of course, expressly authorize counsel to sign an arbitration stipulation on his or her behalf.” (Id.)

A person seeking judicial enforcement of a private arbitration award does not meet the burden of proving the existence of a valid arbitration contract simply by submitting a copy of the contract signed by a party's attorney rather than by the party personally. Lacking the signature of the adverse party on the contract to arbitrate, the award's proponent must provide additional substantiation of the agreement sufficient to prove by a preponderance of the evidence that the opposing party expressly authorized counsel to sign on his or her behalf, or evidence the opposing party ratified the unauthorized arbitration contract.

(Id. at 1223.)

Attorneys do not have inherent authority to commit their clients to binding arbitration. (Blanton v. Womancare (1985) 38 Cal.3d 396, 408 [“An attorney … is not a general agent, and has no general authority to enter into contracts on behalf of his client.”]; see Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1247 [stipulation to binding arbitration in personal injury action signed only by parties' attorneys was unenforceable; because substantial rights were potentially impacted, actual consent or ratification by parties was required; following Blanton]; see also CPI Builders v. Impco Technologies (2001) 94 Cal.App.4th 1167, 1172 [binding contract existed where plaintiff expressly authorized attorney to stipulate to arbitration, defendant's attorney accepted offer, and plaintiff's attorney later failed to convey plaintiff's revocation].)

Here, the motion complies with the above requirements. Plaintiffs attach a copy of the mediation agreement, sets for forth Mr. Forgey’s name, and attaches a copy of the mediation award. Although the mediation agreement is signed only by defense counsel, at the 4/14/21 hearing on this matter, Defendants’ counsel explicitly stated that defense counsel signed the mediation agreement as Defendants’ agent. (See CPI Builders v. Impco Technologies (2001) 94 Cal.App.4th 1167, 1172 [binding contract existed where plaintiff expressly authorized attorney to stipulate to arbitration, defendant's attorney accepted offer, and plaintiff's attorney later failed to convey plaintiff's revocation].)

Moreover, Plaintiffs submitted evidence of a modified award, whereby Mr. Forgey required payment to be made by 4/8/21. Defendants argue the parties agreed that the mediation award was to be funded as a consent judgment; however, Mr. Forgey’s amended mediation award makes no mention of any consent judgment or delaying payment of the settlement funds until payment was made by a third-party. Mr. Forgey specifically states he was advised that payment would not be a problem and there were sufficient funds for any mediation award Mr. Forgey might make.

Defendants do not establish any ground for vacating the award. Accordingly, the motion to confirm arbitration award is granted in the amount of $800,000.00, with 7% interest accruing from the date of 4/8/21, when payment was required to be made.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 19th day of May, 2021

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC615086    Hearing Date: April 14, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRIS IRWIN, ET AL.,

Plaintiff(s),

vs.

RADNET INC., ET AL.,

Defendant(s).

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CASE NO: BC615086

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE MOTION TO ENFORCE ARBITRATION AWARD

Dept. 31

1:30 p.m.

April 14, 2021

 

  1. Background

    Plaintiffs, Chris Irwin (“Chris”) and Natalia Irwin (“Natalia”) (collectively, “Plaintiffs”) filed this action against Defendants, Radnet Management Inc. and Susie Muir, M.D., erroneously sued as, Radnet, Inc., Radnet Managed Imaging Services, Inc., and San Fernando Valley lnterventional Radiology, Imaging Center, and Dr. Susie Muir, (collectively, “Defendants”) for negligence and loss of consortium.

    Plaintiffs, at this time, moves for an order enforcing the terms of the parties’ 1/8/21 Arbitration Settlement Agreement, and the 2/8/21 Binding Mediation Award of $800,000.00.

    This matter was originally heard on 3/19/21, so that Defendants could reply to new evidence of a modified judgment Plaintiffs submitted for the first time in reply. Defendants submitted a supplemental opposition on 4/1/21, and Plaintiffs filed a supplemental reply on 4/7/21.

  2. Motion for Order and Entry of Judgment

  1. Parties’ Positions

Plaintiffs assert the parties entered into a Binding Mediation Agreement on 1/8/21, and that the mediator, Darrell Forgey (“Mr. Forgey”) made the final award of $800,000 to Plaintiffs to be paid by Defendants, with $700,000 to Chris and $100,000 to Natalia. Plaintiffs contend that Defendants now refuse to provide an anticipated date on which Defendants will pay Plaintiffs. Plaintiffs argue that Defendants have claimed they need to get a consent judgment signed, but no judgment has been received. Further, Plaintiffs contend the parties agreed the judgment could be enforced pursuant to CCP § 664.6.

In opposition, Defendants submit a declaration from defense counsel providing that the parties agreed to participate in binding mediation with Mr. Forgey and understood Mr. Forgey’s ruling would be final. Defendants have allegedly been using consent judgment to procure settlement funds for other matters that are submitted to a re-insurer for payment. Defendants went into the mediation with the expectation that this would be the method to fund the mediation award in this case, and this consent judgment approach was explained to Plaintiffs and Mr. Forgey. Defendants assert that Mr. Forgey dismissed Defendant Susie Muir, M.D. (“Dr. Muir”), and then Mr. Forgey issued his award on 2/8/21, with language stating the award was to be converted to a consent judgment. Defendants assumed based on the language that it was permissible to await funding from the re-insurer. Defendants, however, are unable to provide a specific timeline as to when funding will be available.

In reply, Plaintiffs contend the arbitration/mediation settlement agreement is entitled to judgment and enforceability. Plaintiffs contend that Defendants do not provide any authority for their position that the court should delay entering a judgment against them. Moreover, Plaintiffs assert that Mr. Forgey on 3/8/21 modified the award to provide for a due date for the payment of 4/8/21, with interest to accrue at 7% thereafter. In addition, Plaintiffs aver they never agreed to a consent judgment, and there is no language to indicate the $800,000 payment would not proceed without a consent judgment.

  1. Supplemental Briefs

Defendants, in their supplemental opposition, assert they strongly emphasized the importance of a consent judgment to Mr. Forgey during the mediation, and that at no time during the mediation did Mr. Forgey object to Defendants’ consent judgment proposal. Defendants assert they believed this funding method was being explained to Plaintiffs and their counsel when Mr. Forgey spoke with Plaintiffs during the proceedings. Defendants argue it is significant and dispositive that Mr. Forgey specifically included the consent language in the initial binding mediation award. Further, Defendants argue Mr. Forgey did not remove the consent judgment language from the award when he modified the award. Defendants aver the consent judgment term in the mediation award was material, and Defendants’ proposal for the payment was an integral part of the mediation award.

In the supplemental reply, Plaintiffs assert Defendants’ argument the consent judgment was supposed to be against a third party, such as their insurance company, is irrelevant and inadmissible as to what was allegedly told to Mr. Forgey. Plaintiffs argue the court has authority pursuant to CCP § 664.6 to enter judgment because the binding mediation was sufficiently certain to be enforceable. Further, Plaintiffs argue that pursuant to CCP §1285, the court can confirm Mr. Forgey’s award. Plaintiffs contend the mediation agreement is binding, and there was never a meeting of the minds to a consent judgment. The funding of the $800,000 is at most a secondary term to the agreement.

  1. CCP § 664.6

Pursuant to CCP § 664.6: “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.”

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) To enforce a written settlement agreement under CCP section 664.6, the following three elements must be met: (1) the parties must have come to a meeting of the minds on all material points; (2) there must be a writing that contains the material terms of the agreement; and (3) the writing must be signed by the parties. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797-98.)

“Parties” under section 664.6 means the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”).) Accordingly, the settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) “A procedure in which a settlement is evidenced by one writing signed by both sides minimizes the possibility of … dispute[s] and legitimizes the summary nature of the section 664.6 procedure.” (Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293.)

Pertaining to a request for the trial court to retain jurisdiction under CCP 664.6, the request ‘ “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’ [Citation.] The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’ [Citation.]” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.)

In this case, the parties signed and entered into a Binding Mediation Agreement on or about 1/8/21, providing in relevant part,

This will confirm this matter has been converted to a "Binding Mediation" wherein I am authorized to Issue a Binding Mediator's Proposal after execution of this document by counsel and the parties if the matter cannot be concluded informally. Counsel and the parties are waiving their right to proceed further and agreeing to conclude this litigation in its entirety and forever by my proposal. I have already made disclosures as part of the process and am unaware of any additional discloseable [sic] Information which would affect my ability to be fair and impartial to both (all) sides.

By executing this document, you are representing that I have your and your client(s) express authority to enter into this BINDING Agreement…

(Mot. Exh. A.) On 2/8/21, the mediator, Mr. Forgey issued the following award:

Let me dispose of the claims against Dr. Muir first. In my view, the claims against her fail and she should be dismissed for a waiver of costs. The tech Gregorio and RadNet, as her employer, are responsible for plaintiffs injuries and damage and have so admitted.

Now, based on my review and analysis, along with my 48 years of experience and a healthy dose of common sense, I make the following BINDING Mediator's Proposal. A total of $800,000 with $700,000 for Mr. Irwin for past and future pain and suffering, past and future medical expenses and loss of earnings and $100,000 for Mrs. Irwin for loss of consortium. It is agreed that this proposal will be converted to a "consent judgment".

(Reply Exh. A.)

Plaintiff provides that on 3/8/21, Mr. Forgey modified the Binding Mediation as follows:

During the course of our discussions on 1.27.21, I was advised that payment would not be a problem and there were sufficient funds for any proposal I might make. The defendants admitted liability and knew an award was forthcoming. Mr Thorsen, the insurance rep, advised of the same and I did not include a timetable for payment which I sometimes do. It has come to my attention that payment may be delayed and I am directing payment to be made by Thursday 4.8.21 which would be 60 days from the date of my proposal. The parties agreed to this proceeding as an efficient and effective means of resolution and I was assured that timely payment would occur. Thereafter, interest at the rate of 7% will accrue.

(Id.)

The mediation agreement is signed by Plaintiffs and Plaintiffs’ counsel. (Mot. Exh. A.) However, the agreement does not appear to be signed by Defendants. (Weddington Productions, 60 Cal. App. 4th at 797-98.) The agreement appears to only be signed by defense counsel, however, there is no evidence defense counsel was properly authorized, or the agreement was otherwise signed by any representative on Defendants’ behalf. (See Levy, 10 Cal.4th at 586 [“parties” under § 664.6 means litigants themselves, not their counsel]; compare with Provost v. Regents of Univ. of Calif. (2011) 201 Cal.App.4th 1289, 1296-97 [stipulated settlement signed by corporate party's in-house counsel was enforceable; counsel did not bind corporate party as attorney-agent but signed as its designated employee representative].)

  1. CCP § 1285

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is served. (CCP §§ 1288, 1288.4.)

The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) CCP section 1285.4 states a petition under this chapter shall:

a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

b) Set forth the names of the arbitrators.

c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(CCP § 1285.4.)

“Contractual arbitration awards, if valid, are presumed to be binding and final.” (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1218 [fn omitted].) “A party petitioning to compel arbitration must allege ‘the existence of a written agreement to arbitrate a controversy....’ ” (Id. at 1219.)

Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation [citation]—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. [Citations.]

(Id.)

Consequently, “… a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.’ [Citation.] … ‘There is indeed a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitrable.’ ” (Id. 1219-20.) “Thus, the party seeking to enforce an award must prove by a preponderance of the evidence that a valid arbitration contract exists. The court may not confirm an award without first finding the parties agreed in writing to arbitrate their dispute, unless a judicial determination of the issue has already been made (e.g., by a court considering a petition to compel arbitration).” (Id. at 1220.)

“An ‘arbitration agreement is subject to the same rules of construction as any other contract....’ ” (Id. at 1221.) Further, a client is bound by an arbitration agreement signed by his or her counsel only if the client consented to or ratified the agreement. (Id.) “ ‘[A]n attorney, merely by virtue of his employment as such, has no apparent authority to bind his client to an agreement for arbitration.... When a client engages an attorney to litigate in a judicial forum, the client has a right to be consulted, and his consent obtained, before the dispute is shifted to another, and quite different, forum, particularly where the transfer entails the sort of substantial consequences present here.’ [Citation.]” (Id. [fn omitted].)

“[W]hen it comes to such a substantial matter as compromise of an action, ‘a person dealing with an attorney, as dealing with any agent, must ascertain whether the agent has authority to do the purported act and assumes the risk if in fact the agent has no such authority.’ ” (Id. at 1222.) Moreover, “[a]n attorney's unauthorized act may bind his or her client if the client ratifies such action. [Citation.] A client, however, does not necessarily ratify an attorney's unauthorized arbitration stipulation simply by allowing the arbitration to proceed to an award.” (Id.) Additionally, “[b]ecause an attorney lacks apparent authority to sign an arbitration contract on his or her client's behalf, the lawyer's signature alone is not sufficient evidence the client consented to arbitration. A party may, of course, expressly authorize counsel to sign an arbitration stipulation on his or her behalf.” (Id.)

A person seeking judicial enforcement of a private arbitration award does not meet the burden of proving the existence of a valid arbitration contract simply by submitting a copy of the contract signed by a party's attorney rather than by the party personally. Lacking the signature of the adverse party on the contract to arbitrate, the award's proponent must provide additional substantiation of the agreement sufficient to prove by a preponderance of the evidence that the opposing party expressly authorized counsel to sign on his or her behalf, or evidence the opposing party ratified the unauthorized arbitration contract.

(Id. at 1223.)

Attorneys do not have inherent authority to commit their clients to binding arbitration. (Blanton v. Womancare (1985) 38 Cal.3d 396, 408 [“An attorney … is not a general agent, and has no general authority to enter into contracts on behalf of his client.”]; see Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1247 [stipulation to binding arbitration in personal injury action signed only by parties' attorneys was unenforceable; because substantial rights were potentially impacted, actual consent or ratification by parties was required; following Blanton]; see also CPI Builders v. Impco Technologies (2001) 94 Cal.App.4th 1167, 1172 [binding contract existed where plaintiff expressly authorized attorney to stipulate to arbitration, defendant's attorney accepted offer, and plaintiff's attorney later failed to convey plaintiff's revocation].)

Here, as discussed above, the mediation agreement is signed only by defense counsel, and there is no evidence that Defendants authorized defense counsel to sign the agreement. Further, there is no evidence that Defendants ratified or consented to the agreement. The existence of a valid arbitration agreement is a prerequisite to confirming the arbitration award. However, while Plaintiffs submit a copy of the mediation agreement signed by defense counsel, this alone is not sufficient to establish the existence of a valid agreement. Plaintiffs must prove by a preponderance of the evidence Defendants expressly authorized defense counsel to sign on their behalf, or evidence Defendants ratified the mediation agreement. (Id.)

Based on the foregoing, Plaintiffs’ motion to confirm the arbitration award is denied without prejudice. The ruling is without prejudice as to Plaintiffs’ ability to refile the motion to confirm the arbitration award under CCP § 1285 with evidence Defendants authorized defense counsel, such as in writing, through email, or orally, to bind Defendants to mediation, or with evidence Defendants ratified the agreement, such as by participating in the mediation proceedings.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 14th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC615086    Hearing Date: March 19, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRIS IRWIN, ET AL.,

Plaintiff(s),

vs.

RADNET INC., ET AL.,

Defendant(s).

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CASE NO: BC615086

[TENTATIVE] ORDER CONTINUING MOTION FOR AN ORDER AND ENTRY OF JUDGMENT

Dept. 31

1:30 p.m.

March 19, 2021

 

  1. Background

    Plaintiffs, Chris Irwin (“Chris”) and Natalia Irwin (“Natalia”) (collectively, “Plaintiffs”) filed this action against Defendants, Radnet Management Inc. and Susie Muir, M.D., erroneously sued as, Radnet, Inc., Radnet Managed Imaging Services, Inc., and San Fernando Valley lnterventional Radiology, Imaging Center, and Dr. Susie Muir, (collectively, “Defendants”) for negligence and loss of consortium.

    Plaintiffs, at this time, moves for an order enforcing the terms of the parties’ 1/8/21 Arbitration Settlement Agreement, and the 2/8/21 Binding Mediation Award of $800,000.00.

  2. Motion for Order and Entry of Judgment

  1. Parties’ Positions

Plaintiffs assert the parties entered into a Binding Mediation Agreement on 1/8/21, and that the mediator, Darrell Forgey (“Mr. Forgey”) made the final award of $800,000 to Plaintiffs to be paid by Defendants, with $700,000 to Chris and $100,000 to Natalia. Plaintiffs contend that Defendants now refuse to provide an anticipated date on which Defendants will pay Plaintiffs. Plaintiffs argue that Defendants have claimed they need to get a consent judgment signed, but no judgment has been received. Further, Plaintiffs contend the parties agreed the judgment could be enforced pursuant to CCP § 664.6.

In opposition, Defendants submit a declaration from defense counsel providing that the parties agreed to participate in binding mediation with Mr. Forgey and understood Mr. Forgey’s ruling would be final. Defendants have allegedly been using consent judgment to procure settlement funds for other matters that are submitted to a re-insurer for payment. Defendants went into the mediation with the expectation that this would be the method to fund the mediation award in this case, and this consent judgment approach was explained to Plaintiffs and Mr. Forgey. Defendants assert that Mr. Forgey dismissed Defendant Susie Muir, M.D. (“Dr. Muir”), and then Mr. Forgey issued his award on 2/8/21, with language stating the award was to be converted to a consent judgment. Defendants assumed based on the language that it was permissible to await funding from the re-insurer. Defendants, however, are unable to provide a specific timeline as to when funding will be available.

In reply, Plaintiffs contend the arbitration/mediation settlement agreement is entitled to judgment and enforceability. Plaintiffs contend that Defendants do not provide any authority for their position that the court should delay entering a judgment against them. Moreover, Plaintiffs assert that Mr. Forgey on 3/8/21 modified the award to provide for a due date for the payment of 4/8/21, with interest to accrue at 7% thereafter. In addition, Plaintiffs aver they never agreed to a consent judgment, and there is no language to indicate the $800,000 payment would not proceed without a consent judgment.

  1. Analysis

Pursuant to CCP § 664.6: “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.”

When ruling on a CCP § 664.6 motion for entry of judgment based on the parties' stipulation for settlement of the case, the court must determine whether the parties entered into a valid and binding settlement. (Bowers v Raymond J. Lucia Cos., Inc. (2012) 206 Cal.App.4th 724, 732, 734 [trial court properly entered judgment consistent with mediator's decision on finding that parties agreed to allow mediator to select between plaintiff's final demand and defendant's final offer after end of unsuccessful mediation].)

“A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Weddington, supra, 60 Cal.App.4th at p. 810, 71 Cal.Rptr.2d 265.) One of the essential elements of an *733 enforceable contract is mutual consent. (Id. at p. 811, 71 Cal.Rptr.2d 265.) For consent to be mutual, the parties must all agree on the same thing in the same sense. (Ibid., Civ.Code, §§ 1580 & 1636.) “ ‘The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.’ ” (Weddington, supra, at p. 811, 71 Cal.Rptr.2d 265.) “If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation.” (Ibid.)

(Id. at 732-33.)

A supposed contract that “does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Id. at 734 [internal quotations omitted].)

If any material terms are missing from the settlement agreement, the judge cannot enter judgment on it. (Gauss v GAF Corp. (2002) 103 Cal.App.4th 1110, 1123 [court may not enter judgment for plaintiff under CCP § 664.6 when agreement does not specify amount each defendant is obligated to pay]; see also Lindsay v Lewandowski (2006) 139 CA4th 1618, 1622-25 [stipulation for settlement after private mediation is unenforceable when it is uncertain as to procedure parties agreed to for resolving payment dispute].)

Here, the parties signed and entered into a Binding Mediation Agreement on 0r about 1/8/21, providing in relevant part,

This will confirm this matter has been converted to a "Binding Mediation" wherein I am authorized to Issue a Binding Mediator's Proposal after execution of this document by counsel and the parties if the matter cannot be concluded informally. Counsel and the parties are waiving their right to proceed further and agreeing to ton etude this litigation in its entirety and forever by my proposal. I have already made disclosures as part of the process and am unaware of any additional discloseable [sic] Information which would affect my ability to be fair and impartial to both (all) sides.

By executing this document, you are representing that I have your and your client(s) express authority to enter into this BINDING Agreement…

(Mot. Exh. A.) On 2/8/21, the mediator, Mr. Forgey issued the following award:

Let me dispose of the claims against Dr. Muir first. In my view, the claims against her fail and she should be dismissed for a waiver of costs. The tech Gregorio and RadNet, as her employer, are responsible for plaintiffs injuries and damage and have so admitted.

Now, based on my review and analysis, along with my 48 years of experience and a healthy dose of common sense, I make the following BINDING Mediator's Proposal. A total of $800,000 with $700,000 for Mr. Irwin for past and future pain and suffering, past and future medical expenses and loss of earnings and $100,000 for Mrs. Irwin for loss of consortium. It is agreed that this proposal will be converted to a "consent judgment".

(Reply Exh. A.)

Plaintiff provides that on 3/8/21, Mr. Forgey modified the Binding Mediation as follows:

During the course of our discussions on 1.27.21, I was advised that payment would not be a problem and there were sufficient funds for any proposal I might make. The defendants admitted liability and knew an award was forthcoming. Mr Thorsen, the insurance rep, advised of the same and I did not include a timetable for payment which I sometimes do. It has come to my attention that payment may be delayed and I am directing payment to be made by Thursday 4.8.21 which would be 60 days from t he date of my proposal. The parties agreed to this proceeding as an efficient and effective means of resolution and I was assured that timely payment would occur. Thereafter, interest at the rate of 7% will accrue.

(Id.)

Defendants do not dispute they agreed to Binding Mediation with Mr. Foregy, or otherwise contest the amount awarded to Plaintiffs. Defendants primarily argue they understood it was permissible to wait funding from the re-insurer to pay Plaintiffs. The term “binding mediation” is sufficiently certain to and the evidence makes clear the parties understood what procedure was contemplated when they agreed to the binding mediation. (Bowers, 206 Cal.App.4th at 734.)

Plaintiffs, in their reply, submitted evidence showing Mr. Forgey modified the 2/8/21 award to require the payment to Plaintiffs by 4/8/21. The modified award makes no mention of any consent judgment or that Defendants would await funding from a re-insurer before paying Plaintiffs. Rather, Mr. Forgey asserts he was advised payment would not be a problem and directs payment to Plaintiffs is required by a specific date.

This evidence requiring payment by 4/8/21 suggests the reference to a consent judgment was not a material term. However, Defendants cannot respond to new evidence presented for the first time with Plaintiffs’ reply brief. Therefore, the matter will be continued to allow Defendants to address the new evidence and the modified judgment. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 [court has discretion whether to accept new evidence with the reply papers as long as other party had opportunity to respond].)

The matter is continued to _____________________. Defendants must file any supplemental opposition at least 9 court days before the continued hearing. Plaintiffs may file a supplemental reply at least 5 court days before.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 19th day of March, 2021

Hon. Thomas D. Long

Judge of the Superior Court

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