Tentative Rulings

Case Number: BC685576    Hearing Date: October 16, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Russell Lee Richardson (“Plaintiff”) moves to enforce a settlement agreement between Plaintiff and Defendant Jenny Yiuning Koo (“Defendant”). Code of Civil Procedure section 664.6 provides that “[i]f 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.” (Code Civ. Proc., § 664.6.) In ruling on a motion to enter judgment, the court acts as a trier of fact. The court must determine whether the parties entered into a valid and binding settlement. To do so, the court may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.)

Here, the parties entered into a signed settlement agreement on August 5, 2020, pursuant to which: (1) Defendant’s insurance company would pay the policy limit of $250,000; (2) Defendant would pay a total of $950,000; and (3) Defendant would pay $500,000 on August 6, 2020. (Declaration of Benjamin Drake, Exh. A.) Defendant failed to pay as required. (Declaration of Benjamin Drake, ¶ 13.) Defendant does not oppose the motion.

Based upon the foregoing, Plaintiff’s motion is granted. The Court enters judgment against Defendant in the amount of $950,000 per the terms of the settlement between the parties. Plaintiff shall provide notice and file proof of such with the Court.

DATED: October 16, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC685576    Hearing Date: August 06, 2020    Dept: 32

ORDER #1 of 2

BACKGROUND

Plaintiff Russell Lee Richardson (“Plaintiff”) moves to enforce a purported settlement agreement with Defendant Jenny Yiuning Koo (“Defendant”). Defendant opposes the motion, arguing that there was no settlement agreement. The motion is denied.

Legal Standard

Code of Civil Procedure section 664.6 provides that “[i]f 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.” (Code Civ. Proc., § 664.6.) In ruling on a motion to enter judgment, the court acts as a trier of fact. The court must determine whether the parties entered into a valid and binding settlement. To do so, the court may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.)

DISCUSSION

The Court denies the motion because there was no settlement agreement between the parties. On August 21, 2019, Plaintiff served Defendant with a statutory offer to compromise pursuant to Code of Civil Procedure section 664.6. (Declaration of Benjamin Drake, ¶ 3.) Defendant agreed to make a personal contribution to the settlement but proposed a schedule of payments for her payments. (Id., ¶ 4.) Defendant personally sent an email to Plaintiff’s counsel on September 16, 2019, with the proposed schedule of payments and their amounts. (Declaration of Declaration of Benjamin Drake, Exh. A.) Defendant personally sent another email to Plaintiff’s counsel on September 19, 2019, with the proposed schedule of payments and their amounts. (Id., Exh. B.) Defendant also sent two checks to Plaintiff’s counsel pursuant to her proposed settlement. (Declaration of Reiley F. Ewing, ¶ 2.)

Plaintiff represents that after these emails, “counsel on both sides continued discussions to fine-tune the details of the settlement – details such as the time frame by which the payments would be received and concluded.” (Plaintiff’s Memorandum of Points & Authorities, p.4:9-11.) Plaintiff’s assertion is not supported by the record. In fact, on September 23, 2019, Plaintiff’s counsel sent an email to Defendant’s counsel stating in relevant part:

With respect to the communications with your client, I have received two emails from her without responding to either one. She believes that she is not being represented, although the withdrawal has not yet happened. We have not communicated with your client directly.

As with the checks, we will keep them in file and will not deposit. As of today, we do not have a settlement reached and I believe our 998 is about to expire. We may not agree to settle for the same amount once it does expire.

(Id., Exh. #1.) By this email, Plaintiff rejected Defendant’s proposed settlement. “It is hornbook law that an unequivocal rejection by an offeree, communicated to the offeror, terminates the offer; even if the offeror does no further act, the offeree cannot later purport to accept the offer and thereby create enforceable contractual rights against the offeror.” (Beverly Way Associates v. Barham (1990) 226 Cal.App.3d 49, 55.) Inexplicably, Plaintiff’s counsel did not include this email with his motion.

Plaintiff’s counsel references settlement discussions after he rejected Defendant’s offer. To the extent the parties continued to discuss settlement, these discussions would reflect a new agreement, e.g., a counter-offer by Plaintiff, which the parties reduced to writing. (Declaration of Benjamin Drake, Exh. E.) However, there is no evidence that Defendant ever agreed to Plaintiff’s counter-offer. Plaintiff concedes that Defendant has refused to sign the agreement. Therefore, there is no settlement between the parties.

Plaintiff argues that Defendant sent two checks pursuant to her proposed installment plan, which evidence a writing for purposes of enforcing the settlement. Again, Plaintiff does not address his email of September 23, 2019, rejecting this very proposed settlement. That fact distinguishes the instant case from those cited by Plaintiff.

CONCLUSION AND ORDER

Plaintiff’s motion to enforce settlement is denied. Plaintiff provides no explanation for his failure to include or discuss his email of September 23, 2019, in the motion. The Court orders a mandatory settlement conference in this case. The Court continues the trial setting conference to October 9, 2020, at 8:30 a.m. Plaintiff shall provide notice and file proof of such with the Court.

DATED: August 6, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

ORDER #2 of 2

Defendant Jenny Yiuning Koo (“Defendant”) moves to compel the deposition of Plaintiff Russell Lee Richardson (“Plaintiff”). Defendant also moves to compel the depositions of Plaintiff’s retained experts: (1) Fardad Mobin, M.D.; (2) Carol Hyland, C.L.C.P.; and (3) Shawn Rabbani, M.D. Plaintiff does not oppose the motions. Therefore, the motions are granted, the Court having denied Plaintiff’s motion to enforce the purported settlement in this case.

CONCLUSION AND ORDER

Defendant’s motions to compel depositions of Plaintiff and Plaintiff’s retained experts are granted. The depositions shall occur on or before October 9, 2020, at 8:30 a.m. In the interim, the Court orders the parties to participate in a mandatory settlement conference. Defendant shall provide notice and file proof of such with the Court.

DATED: August 6, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court