PAUL R MARKLEY, ET AL. VS DON WEAVER, ET AL.

Tentative Rulings

Case Number: *******0897 Hearing Date: May 12, 2022 Dept: M

Hearing Date: May 12, 2022

Moving Parties: Plaintiff Paul R. Markley

Responding Party: None

Motion for an Order to Disburse Settlement Funds

The court considered the moving and opposition papers.

RULING

The motion is DENIED WITHOUT PREJUDICE. Plaintiff is ordered to file a notice of related case in each case and serve all parties in each case.

BACKGROUND

On December 14, 2021, plaintiff Paul Markley ind. and as Law Offices of Paul R. Markley filed a complaint against Don Weaver and Whole Foods Market California, Inc. dba Whole Foods Market for declaratory relief.

On March 17, 2022, defendant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market filed a cross-complaint.

LEGAL AUTHORITY

CCP 664.6 states: “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.”

“A trial court, when ruling on a section 664.6 motion, acts as a trier of fact. Section 664.6’s ‘express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions to settlement.’” Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App. 4th 884, 889 (citation omitted).

CCP 187 states: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

DISCUSSION

Under CCP 664.6, plaintiff Paul Markley requests an order allowing plaintiff to proceed with “negotiating the reductions” and distributing the “settlement funds” from an underlying case Markley settled on behalf of Don Weaver.

The complaint for declaratory relief alleges that there exists an actual and justiciable controversy between the parties. The court may enter judgment pursuant to the terms of a settlement. The underlying case [BC711443] has already been dismissed with prejudice pursuant to the terms of the settlement. There are multiple issues in this case as follows: A. [client Don] Weaver developed “cold feet” regarding the settlement after approving the settlement and requesting that all closing documents be finalized and the case dismissed. After this was done, he then told his attorney [Markley] to stop all work on the file. The only remaining work to be done is to negotiate the medical bills down to maximize plaintiff’s [Weaver] recovery and then disburse the funds to plaintiff [Weaver] and the medical providers. Thereafter, Weaver told his counsel [Markley] that counsel “knew what to do” but has refused to explain this cryptic response. B. Defendant Whole Foods refuses to re-issue the settlement draft without a court order. C. Without a court order the draft cannot be issued and the disbursements cannot be made.

The complaint further alleges that in the underlying [slip and fall personal injury] case, a mediation was held with Judge Joseph Biderman (Ret.). At the mediation, Markley represented Weaver. Weaver’s demand was $285,000 and then lowered to $250,000. The defendant’s [Whole Foods] top offer was $225,000. The parties did not settle that day. Over the next week, Markley with Weaver’s consent offered to settle for $235,000, which Whole Foods refused. After further discussions with Markley, Weaver authorized Markley to accept Whole Foods’ offer of $225,000. During discussions regarding accepting Whole Foods’ offer, Markley asked Weaver if he wanted Markley to accept the offer, sign the closing documents on his behalf, and to dismiss the case, “with the understanding that it could not be reopened.” Weaver “agreed that he understood and that was his wish.” The final paperwork was completed after contacting the court that the parties had reached a settlement. Thereafter, Weaver’s counsel Markley received the settlement draft but Weaver decided he did not want to go through with the settlement and instructed Markley not to sign the draft. Weaver then told Markley to stop all work on the case. Markley stopped all work on the case and has sent numerous emails and made numerous phone calls to Weaver, who will not answer the phone calls and has responded by email a couple times but does not state how he wants the case to proceed. His last email response was “you know what to do.” Due to the lack of communication, Markley is reticent to sign Weaver’s name to the check because Weaver requested that Markley stop work. Markley’s prayer for relief is that defendant Whole Foods reissue the settlement draft and that Markley move forward with deposit of the settlement funds and disbursement of the settlement funds.

The court notes that in BC711443 [Judge Murillo in Dept. 29] on November 16, 2021, the court denied plaintiff Weaver’s motion to reopen the case for an order to disburse settlement funds for lack of jurisdiction. The court noted in the minute order that the case had been dismissed with prejudice on February 20, 2020 after the parties settled for $225,000 and had not requested that the court retain jurisdiction under CCP 664.6.

The court finds that the motion is premature as the complaint for declaratory relief has not been decided and judgment entered. Further, it does not appear that CCP 664.6 is applicable to authorize disbursement of any funds because the underlying case is not pending and the court did not retain jurisdiction. Also, plaintiff Markley is not a party to the settlement between Weaver and Whole Foods. Markley has not provided any authority that he has standing to enforce the settlement agreement, against his client Weaver.

The motion is DENIED.

Plaintiff is ordered to give notice of ruling.