Gallo v. Getz, E004653
| Court | California Court of Appeals |
| Writing for the Court | HEWS; CAMPBELL, P.J., and McDANIEL |
| Citation | 252 Cal.Rptr. 193,205 Cal.App.3d 329 |
| Parties | Anthony GALLO, Plaintiff and Appellant, v. Frank William GETZ, Defendant and Respondent. |
| Docket Number | No. E004653,E004653 |
| Decision Date | 20 October 1988 |
Page 193
v.
Frank William GETZ, Defendant and Respondent.
Certified for Partial Publication *.
[205 Cal.App.3d 330] Dale C. Miller, Riverside, for plaintiff and appellant.
Page 194
Fidler and Bell and Stanley O. Orrock, Riverside, for defendant and respondent.
HEWS, Associate Justice.
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[205 Cal.App.3d 331] 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:
"Dear Ms. Rossell:
"This is to confirm our telephone conversation of March 14, 1985, wherein the case of Anthony Gallo has been settled in full for the sum of $33,237.75, pursuant to the following terms:
"1. Anthony Gallo is to receive up front the sum of $1,800.00, with $24,000.00 to follow, per Item # 3.
"2. $7,437.75 is also paid up front for attorney's fees and unpaid doctor bills.
"3. Mr. Gallo is then to receive the sum of $2,000.00 payable on July 23, 1986, and continuing thereafter annually until July 23, 1997. This means that Mr. Gallo shall receive the total sum of $25,800.00 free and clear. ($24,000.00 + $1,800.000).
"...
"Please draw up the necessary paper work and checks as soon as possible. As per our understanding, you will prepare the settlement agreement in accordance with the above terms."
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 [205 Cal.App.3d 332] 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...
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Levy v. Superior Court, S035538
...to settle must be signed personally by the party litigants and not solely by their attorneys--was adopted in Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193. In support of its holding, the Gallo court cited two decisions, Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.Ap......
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Gauss v. Gaf Corp., A091299.
...the settlement, as evidenced by the signature of its authorized corporate representative. Plaintiffs also rely on Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193, a case decided before Levy. Stressing the unfairness of allowing GAF to "take complete advantage" of the releases pla......
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Johnson v. Department of Corrections, C017620
...duly authorized attorneys of record." (Id. at p. 1273, 19 Cal.Rptr.2d 409.) Taking an opposing view, the courts in Gallo v. Getz (1988) 205 Cal.App.3d 329, 333, 252 Cal.Rptr. 193, and Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1681, 285 Cal.Rptr. 441, concluded that a stipulation to set......
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Diaz v. May, A057672
...and would have provided so in the statute. [Citations.]" (Id. at pp. 233-234, 221 Cal.Rptr. 412.) The court in Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193 (hereafter Gallo ) took the opposite position. The plaintiff's attorney had sent the defendant's insurer a letter confirm......
-
Levy v. Superior Court, S035538
...to settle must be signed personally by the party litigants and not solely by their attorneys--was adopted in Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193. In support of its holding, the Gallo court cited two decisions, Datatronic Systems Corp. v. Speron, Inc. (1986) 176 Cal.Ap......
-
Gauss v. Gaf Corp., A091299.
...the settlement, as evidenced by the signature of its authorized corporate representative. Plaintiffs also rely on Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193, a case decided before Levy. Stressing the unfairness of allowing GAF to "take complete advantage" of the releases pla......
-
Johnson v. Department of Corrections, C017620
...duly authorized attorneys of record." (Id. at p. 1273, 19 Cal.Rptr.2d 409.) Taking an opposing view, the courts in Gallo v. Getz (1988) 205 Cal.App.3d 329, 333, 252 Cal.Rptr. 193, and Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1681, 285 Cal.Rptr. 441, concluded that a stipulation to set......
-
Diaz v. May, A057672
...and would have provided so in the statute. [Citations.]" (Id. at pp. 233-234, 221 Cal.Rptr. 412.) The court in Gallo v. Getz (1988) 205 Cal.App.3d 329, 252 Cal.Rptr. 193 (hereafter Gallo ) took the opposite position. The plaintiff's attorney had sent the defendant's insurer a letter confirm......