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Court of Appeal:
County’s Failure to Adhere to Time Limit Not Material
Man Who Entered Into Settlement Agreement Providing That County Representatives Would Forward the Accord To Board of Supervisors Within Five Months Lacked Power to Rescind Where Condition Was Not Met
By a MetNews Staff Writer
The County of Los Angeles’s failure to adhere to a condition in a settlement agreement with an employee that it would present the accord to the Board of Supervisors within five months for its approval did not vest in the employee the power to withdraw his assent, the Court of Appeal for this district held yesterday, declaring that the time limit was not material.
The agreement, Justice Rashida A. Adams of Div. Three pointed out, did not recite that time was “of the essence.”
Her unpublished opinion affirms a judgment of Los Angeles Superior Court Judge Maureen Duffy-Lewis enforcing the settlement agreement.
That agreement is between the county and Jess A. Duran, who was a social worker for the Department of Children and Family Services. Both sides accepted the proposal by Burbank attorney/mediator Gig Kyriacou that the county pay Duran $246,500 and that Duran would drop his lawsuit and resign upon approval of the settlement by the board.
Deadline Set
The “Settlement Agreement and General Release,” which Duran signed on Aug. 25, 2020, provides that the county would within five months—that is, by Jan. 25, 2021—recommend to the board that it approve the settlement. However, it tarried.
It was not until March 15, 2021, that the county forwarded the agreement to the Claims Board, which approved it and sent it to the board the same day. The board approved it on April 6, 2021.
Duran, who had been on paid administrative leave, did not resign. He contended that in light of the county’s breach of the time requirement, the agreement was null and void.
He explained in a declaration:
“I understood that during the 5 months of the settlement it would afford me the opportunity to look specifically for a job in my field; be an employer that would help me complete my ‘supervised clinical hours’ in psychotherapy; and, be an approved employer that participated in the student loan forgiveness program.”
The 10-week delay, he contended, caused him to lose employment opportunities, pointing to one job he turned down because he would have been required to start work on March 1.
Writ of Supersedeas
Duran appealed from the judgment enforcing the settlement agreement—which included the requirement that he resign—and also sought a writ of supersedeas to prevent enforcement of the agreement pending resolution of the appeal. His petition was summarily denied by Div. Three on Jan. 6, 2022.
In its respondent’s brief, the county pointed out in a footnote:
“The substantial benefit that Duran was to obtain under the settlement agreement was the County’s payment for dismissal of the lawsuit and Duran’s resignation. That payment was deposited into his attorney’s trust account just two months after his email stating that he considered the agreement void. It remains available for him to collect any time.”
Adams’s Opinion
In her opinion affirming the judgment, Adams said:
“The trial court concluded Duran was not entitled to rescind the settlement agreement because there was no material breach by the County. Specifically, the court found the timing of the County’s recommendation of the settlement agreement to the Board for approval was not ‘of the essence’ to the agreement such that the County’s delayed performance constituted a material breach. Substantial evidence supported this conclusion.”
She cited Civil Code §1689(b)(4) which provides that a party may rescind an agreement “[i]f the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause.”
The jurist noted that the settlement agreement in issue “does not include an express time-is-of-the-essence clause.”
No ‘Clear-Cut Language’
Adams went on to say:
“Here, the settlement agreement does not contain any ‘clear-cut language’ that manifests the intent of the County or Duran to elevate the January 25, 2021 deadline to a fundamental requirement of the contract. The settlement agreement does not state that the five-month period was intended to preserve Duran’s future employment opportunities, ability to accrue clinical hours, or student loan forgiveness eligibility. The parties explicitly identified some elements of the agreement as material; they specified in the agreement that violations of the confidentiality provisions would constitute a material breach. The parties did not include similar language concerning the timing of the County’s performance.”
She added:
“[T]he parties specifically noted that a denial of approval by County authorities was the one circumstance that would render the agreement null and void. The clauses delineating the timing of the County’s performance do not express any intent that delayed performance would similarly invalidate the agreement, or otherwise indicate the County’s rights under the contract would be forfeited….”
Defect Cured
Where time is not of the essence, Adams recited, a party may cure any defect in its performance and the county did just that when, albeit belatedly, the agreement was submitted to the board and the settlement funds were deposited in the attorney-client fund.
There was no abuse of discretion in awarding $600 in attorney fees to the county pursuant to a fee-shifting provision in the settlement agreement, Adams said.
The case is Duran v. County of Los Angeles, B316064.
Duran was in pro per. The county was represented by Calvin House of the Pasadena firm of Gutierrez, Preciado & House.
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