Gallo v. Getz
| Decision Date | 20 October 1988 |
| Docket Number | No. E004653,E004653 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Anthony GALLO, Plaintiff and Appellant, v. Frank William GETZ, Defendant and Respondent. |
In this case we are called upon to decide if a civil case for personal injury was settled by the parties. We have determined the requirements were met to support the trial court's decision that there was a compromised settlement between the parties and that the settlement was enforceable by defendant. We affirm the judgment dismissing plaintiff's complaint and compelling enforcement of settlement pursuant to Code of Civil Procedure section 664.6. 1
An action for personal injury was filed by plaintiff on November 3, 1982. On February 19, 1985, the parties participated in a voluntary settlement conference. Settlement was not reached. Plaintiff's attorney and the defendant's insurer (insurer) continued to negotiate (defendant was represented by house counsel at the time) and on March 14, 1985, plaintiff's attorney wrote insurer stating:
Pursuant to this letter on March 27, 1985, insurer prepared a settlement agreement, a release and two drafts in the amount of $8,237.75 and $1,000, respectively, (the front money) all of which was mailed to plaintiff's attorney. The draft in the amount of $8,237.75 made payable to plaintiff and his attorney was endorsed by plaintiff and deposited into the attorney's trust account in April of 1985. The draft in the amount of $1,000 made payable to plaintiff's former attorney in satisfaction of his lien fees for services rendered to plaintiff was endorsed and deposited in his bank in April 1985 as well. The drafts stated that they were in final settlement, not including the structured settlement, of plaintiff's claim for bodily injury arising from an accident on February 3, 1982. Plaintiff received and accepted a check written on his attorney's trust account in the amount of $1,800 and cashed this check. Amazingly, the attorney also disbursed funds to plaintiff's doctors and to himself from the trust account without first obtaining plaintiff's signature to the release and settlement agreements. Plaintiff never executed these documents.
Eight months later, on December 13, 1985, plaintiff advised his attorney that he was not willing to go along with the settlement. His attorney replied to plaintiff by letter on December 16, 1985, in which the December 13 telephone conversation was confirmed, and with this letter the attorney refunded $1,927.75 to plaintiff, the amount of that portion of attorney's fees that covered the structured portion of the settlement. This refund check was also cashed by plaintiff.
Plaintiff's attorney then notified insurer that the previously agreed upon settlement agreement was not acceptable to plaintiff. Thereafter on February 25, 1986, insurer informed plaintiff's attorney that the structured annuity settlement as agreed upon had been canceled. The record does not reflect if demand was made for the return of the $9,237.75 previously paid; however, it is clear that no money was ever returned to insurer.
Plaintiff's attorney substituted out of the case on February 19, 1986. Plaintiff then proceeded in propria persona status. On April 6, 1987, plaintiff substituted in his present attorney as attorney of record. On April 27, 1987, the present attorney made a "good faith" demand by letter to settle the case for $202,050.50.
The new attorney filed an at-issue memorandum and commenced discovery without objection by defendant's attorneys. Finally, on June 16, 1987, defendant filed a motion to compel and enforce the settlement. The motion was granted on August 17, 1987. In support of the motion, insurer stated that it was willing to reinstate the annuity and agreed to make every payment as set forth in the settlement agreement pursuant to the annuity. A draft of $4,000 (2 years of payment) was also tendered to and refused by plaintiff. In opposition to the motion, plaintiff stated he never felt the proposed settlement was adequate or why he should consent to a structured settlement. This appeal followed.
Plaintiff does not dispute the existence of a settlement, nor does he contend that the March 14, 1985, letter signed by his attorney did not reflect all the terms of the settlement. Further, he does not contend insurer indulged in fraudulent behavior, that he was coerced into settlement, or that his attorney did not have authority to settle on the terms as set forth in this letter. Plaintiff contends however that the requirements for a motion to compel enforcement of a settlement were not satisfied in that the settlement was not judicially supervised nor was any written stipulation signed by the parties. He further contends that defendant waived his right to compel enforcement of the settlement agreement by his conduct and undue delay in seeking enforcement.
In summarizing the facts, we conclude that plaintiff agreed to settle, accepted the initial benefits of the settlement and later determined that he had made an unfortunate deal. In our experience it is not at all unusual on the part of both parties to have second thoughts about a settlement.
However, under the statute, we must determine if there was a stipulation in writing to settle within the meaning of section 664.6. 2 Defendant...
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