Simmons v. Ghaderi

• Decision Date: 27 September 2006
• Docket Number: No. B180735.,B180735.
• Citation: 49 Cal.Rptr.3d 342,143 Cal.App.4th 410
• Court: California Court of Appeals Court of Appeals
• Parties: Michelle SIMMONS, etc., et al., Plaintiffs and Respondents, v. Lida GHADERI, Defendant and Appellant.

49 Cal.Rptr.3d 342

143 Cal.App.4th 410

Michelle SIMMONS, etc., et al., Plaintiffs and Respondents, v. Lida GHADERI, Defendant and Appellant.

No. B180735.

Court of Appeal, Second District, Division 3.

September 27, 2006.

As Modified September 27, 2006.

Reback, McAndrews & Kjar, Robert C. Reback, Manhattan Beach, and Melanie Shornick for Defendant and Appellant.

Law Office of James Aaron Pflaster, Martin R. Berman and James Aaron Pflaster, Los Angeles, for Plaintiffs and Respondents.

CROSKEY, J.

The parties to a medical malpractice case attended a mediation. Defendant Lida Ghaderi, M.D. provided her medical malpractice insurer, Cooperative American Physicians/Mutual Protection Trust ("CAP-MPT") with her written consent to settle the case for the amount of $125,000. An offer in that amount was transmitted to the plaintiffs, who unconditionally accepted. While the mediator was reducing the settlement agreement to writing, the CAP-MPT claims specialist informed Dr. Ghaderi that a settlement had been reached. Dr. Ghaderi then informed the CAP-MPT representative that she was revoking her consent to settle, and left the mediation. Plaintiffs ultimately amended their medical malpractice complaint to include a cause of action for breach of the oral settlement contract. After a bifurcated trial on that cause of action, the trial court entered judgment in favor of plaintiffs in the amount of $125,000. Dr. Ghaderi appeals, arguing that the Evidence Code provisions governing mediation confidentiality prevented plaintiffs from introducing any evidence of the oral settlement agreement. We conclude Dr. Ghaderi is estopped from relying on mediation confidentiality and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 2002, plaintiffs, the minor son and mother of Kintausha Clemmons,¹ filed a wrongful death complaint against Dr. Ghaderi alleging medical malpractice caused the death of Kintausha Clemmons.²

On July 9, 2003, the parties attended a mediation with the Honorable Robert T. Altman, retired. Plaintiffs and their counsel appeared. Dr. Ghaderi was present with Obi Amanugi, a CAP-MPT claims specialist. Two attorneys also attended with Dr. Ghaderi: Attorney Kent T. Brandmeyer, the CAP-MPT attorney; and Attorney Robert C. Reback, Cumis counsel.³

Under the provisions of her professional liability policy with CAP-MPT, Dr. Ghaderi had the right to withhold her consent to the settlement of any third party malpractice claim. Prior to engaging in settlement discussions, Dr. Ghaderi executed a written consent to settlement form provided by CAP-MPT. In pertinent part, the document provided as follows: "I consent to the settlement of the ... claim for an amount not to exceed that authorized by the Claims Review Committee of [CAP-MPT]. It is understood and agreed that my consent to the negotiated settlement of this claim involves the compromise of a doubtful and disputed claim. Neither my consent to settlement nor the payment of any sum of money by [CAP-MPT] in connection with this negotiated settlement shall constitute or be construed as an admission of liability on my part. [¶] I understand that [CAP-MPT] has an obligation to report settlements to the National Practitioner Data Bank as well as the Medical Board of California in a manner consistent with statute and regulations. [¶] I understand and agree that this consent to settlement may only be revoked in writing. This consent to settlement shall remain in full force and effect unless and until written revocation of my consent to settlement is received by [CAP-MPT at its office]." (Italics added.) Prior to signing the consent agreement, Dr. Ghaderi added the following language at the bottom, "The settlement value is limited to one hundred & twenty-five thousand dollars & zero cents." Dr. Ghaderi signed and dated the consent agreement.

Settlement discussions then proceeded. During settlement discussions, Dr. Ghaderi waited in another room with Attorney Reback. Eventually, CAP-MPT advised Judge Altman to offer plaintiffs $125,000 to settle the matter in exchange for a dismissal with prejudice and a waiver of costs. Plaintiffs accepted the offer. While Judge Altman prepared a document reflecting the settlement agreement for the parties to sign, Amanugi went to the other room to inform Dr. Ghaderi and Attorney Reback that a settlement had been reached. When she was advised of the settlement, Dr. Ghaderi said, "Good, because I am revoking my consent." Amanugi discussed this with Dr. Ghaderi, and also telephoned the CAP-MPT office to obtain guidance on how to proceed. CAP-MPT's general counsel informed Amanugi that CAP-MPT considered Dr. Ghaderi's oral revocation of her consent to be valid. Shortly thereafter, Dr. Ghaderi left the building. Judge Altman, plaintiffs and plaintiffs' counsel signed the written settlement agreement; no one signed on behalf of Dr. Ghaderi or CAP-MPT.

The following day, plaintiffs' attorney and Attorney Brandmeyer, the CAP-MPT attorney, appeared in court. Both counsel recounted the facts of the July 9, 2003 mediation to the court — including Dr. Ghaderi's written consent to settle for $125,000, the offer in that amount, the acceptance of the offer, and Dr. Ghaderi's departure while the settlement was being reduced to writing. Counsel sought guidance on how to proceed.

The trial court speculated that there may be an enforceable settlement agreement. Attorney Brandmeyer agreed that CAP-MPT may eventually take that position, but he first wanted to speak with Dr. Ghaderi in the hopes of obtaining her agreement to the settlement. The trial court vacated the trial date and set the matter for an order to show cause why the case should not be dismissed on July 29.

On July 16, 2003, Dr. Ghaderi sent CAP-MPT a letter formally revoking her consent to settle. On July 17, 2003, plaintiffs filed an application for an ex parte order shortening time for a hearing on a petition to approve the compromise of the minor's claim.⁴

At the July 17, 2003 hearing, Attorney Brandmeyer informed the trial court that Ghaderi had informed CAP-MPT that she had decided to revoke her consent. Attorney Brandmeyer was not sure "where that leaves us." The trial court asked Attorney Brandmeyer if CAP-MPT was "going to pay the money without [Dr. Ghaderi's] signature on a settlement agreement?" Attorney Brandmeyer said CAP-MPT was "still trying to figure it out," but he didn't think CAP-MPT would pay if Dr. Ghaderi did not consent. The trial court ordered Dr. Ghaderi to personally appear at the order to show cause hearing on July 29, 2003.

On July 29, 2003, Dr. Ghaderi was present, with Attorney Brandmeyer and Cumis counsel, Attorney Reback. The trial court spoke with Dr. Ghaderi and her counsel in chambers. The court then stated on the record that Dr. Ghaderi was unwilling to consent to the settlement. The court added, "I told her that I would have to get briefing on the contractual issue of whether she is obligated by virtue of the document she signed to consent to this settlement. I said [that] if I found upon motion that she was so bound, I would approve the settlement over her objection." The court indicated that it appeared that the proper course of action would be for plaintiffs to bring a motion to enforce the settlement agreement under Code of Civil Procedure section 664.6. Plaintiffs' counsel asked if he could obtain a copy of the written consent agreement Dr. Ghaderi had signed. Attorney Brandmeyer agreed to provide a copy. Plaintiffs' counsel also asked the court if it would "entertain a declaration from the mediator? Would that be inappropriate as to what occurred?" The trial court agreed that it "probably would be appropriate." Attorney Reback did not interpose an objection to disclosure of the consent agreement or the obtaining of a declaration from the mediator.

On August 15, 2003, plaintiffs filed their motion to enforce the settlement, on the basis that an oral agreement had been reached with CAP-MPT while CAP-MPT had Dr. Ghaderi's consent to settle the action. Thus, plaintiffs argued any further consent from Dr. Ghaderi would have been superfluous. Plaintiffs supported their motion with: a copy of Dr. Ghaderi's signed consent to settle the action for $125,000; a declaration from plaintiffs' counsel setting forth the events at the July 9, 2003 mediation; the written settlement agreement executed by plaintiffs only; and a short declaration from Judge Altman, confirming that the case was settled for $125,000 and that Dr. Ghaderi then revoked her consent.

On September 5, 2003, Dr. Ghaderi, represented by Attorney Reback, filed her opposition to the motion. She raised no objections to the evidence relied upon by plaintiffs. In fact, her memorandum of points and authorities admitted that: (1) Dr. Ghaderi "gave consent to CAP[-]MPT to engage in settlement discussions on her behalf. Any settlement value was to be limited to $125,000.00 with no admission of liability"; (2) a "settlement offer of $125,000.00 in exchange for a dismissal of the matter with prejudice and a waiver of costs was made and [p]laintiffs accepted"; and (3) Dr. Ghaderi then declined to settle and left the mediation without signing the written settlement agreement. Dr. Ghaderi's opposition was based on the premise that, since she did not sign the written settlement agreement, the settlement was not "consummated" and her subsequent written revocation of consent was therefore timely.

Another opposition was filed on Dr. Ghaderi's behalf by Attorney Brandmeyer. The opposition was based on the following rationale. The summary procedure for enforcing settlements under Code of Civil Procedure section 664.6 generally requires the written consent (or oral consent in open court) of the party. (Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293-1294, 52 Cal.Rptr.2d 264.) Nevertheless, when the party is represented in settlement negotiations by an insurer who settles within policy limits, the...