Wednesday, October 10, 2018
Court of Appeal:
Acceptance of Settlement Offer by Defendant’s Lawyer Ineffective
Says Parties Must Themselves Sign Agreement for It to Be Enforceable Under CCP §664.6; Judgment Could Not Be Entered Under §998 Because Accord Required Interpretation
By a MetNews Staff Writer
Acceptance of a plaintiff’s statutory offer of compromise by the defendant’s lawyer did not create an enforceable settlement because the parties had not signed the agreement and entry of judgment, in light of a need for interpretations, would not have been a ministerial act, the Court of Appeal for this district held yesterday,
Justice Dorothy C. Kim of Div. Five wrote the unpublished opinion which reverses a judgment granted by Los Angeles Superior Court Judge Holly J. Fujie.
The judgment, in favor of Kathleen Coleman, the plaintiff in an automobile accident case, was for $100,000, the sum her attorney, Peter diDonato, specified in his offer of compromise, pursuant to Code of Civil Procedure §998. Defendant Aneeta Sagar’s lawyer, David Hillier, responded by a faxed document which was headed:
“NOTICE OF ACCEPTANCE OF PLAINTIFF, KATHLEEN COLEMAN’S C.C.P. §998.”
Wording of Acceptance
“Please be advised we are accepting Plaintiff, Kathleen Coleman’s C.C.P. §998. We would prefer to do it by way of Release and Dismissal if possible (see enclosed). Please advise how you wish to proceed.”
Hillier’s name was typed in italics. The document advised: “Dictated but not read.”
Sager later withdrew the offer. Coleman’s stance was that an offer that has been accepted can’t be withdrawn, and she moved, pursuant to Code of Civil Procedure §664.6, as well as §998, for an enforcement of the settlement.
Sec. 664.6 provides:
“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.”
In granting the motion, Fujie found that under the Uniform Electronic Transactions Act (“UETA”), Hillier had electronically signed the acceptance. She found that the acceptance “reflects Defendant’s absolute and unqualified intention to accept the Offer” even if Coleman “refused to proceed with the Release and Dismissal.”
Explaining the reversal, Kim pointed out that §664.6 refers to a settlement agreement “signed by the parties.” She declared:
“The term ‘parties’ as used in section 664.6 means the litigants, not their attorneys of record….The record indicates neither party on appeal signed the purported settlement agreement. An agreement to settle cannot be enforced under section 664.6 unless it is signed by all litigating parties.”
Unavailability of §998
Judgment may be entered pursuant to §998, she said, only where it is a ministerial act.
“As evidenced by the trial court issuing a written ruling in which it interpreted counsel’s italicized name as an electronic signature and defendant’s acceptance as unequivocal, the court was required to apply the UETA to the notice of acceptance and construe the language in the notice, in order to determine whether defendant had accepted plaintiffs 998 offer,” she wrote. “These adjudications were beyond the scope of a ministerial act.”
The case is Coleman v. Sagar, B283005.
Attorneys on appeal were DiDonato of the Valencia firm of diDonato Law Center and Chad M. Slack of the Thousand Oaks firm of Slack & Associates.
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