Swaminathan Nandakumar, et al. v. David Plagens, et al.

9:00 26CV485448 Craig Rotbert Order on Plaintiff’s Motion to Deem 4 v. Plaintiff’s Request for Admissions, Apele Builder, Inc., et al. Set One (“RFAs”), Admitted by Defendant Manny Borja, Sr.

As trial of this case is set for September 8, 2026—the trial date set at Plaintiff’s request for trial preference (see Order, June 4, 2026)—and as the parties have already attended the Trial Assignment Hearing before Supervising Civil Division Judge Deen on September 3, 2026, where they were ordered to submit the pretrial package (including motions in limine) for the Trial Judge by September 4, 2026, the issues raised by Plaintiff in this Motion must now be presented to and determined by the Trial Judge, to whom this pre-trial Civil Case Manager defers. So this Motion in Department 16 today is OFF CALENDAR.

SO ORDERED.

9:00 20CV371971 Vahe Tashjian Order Sua Sponte CONTINUING 5 v. Plaintiff’s Motion to Release to Planet Home Lending, LLC, Plaintiff the $304,000.00 Bond et al. See Line 5 below for complete tentative ruling sua sponte CONTINUING this Motion to April 28, 2027 at 9:00 AM in Department 16.

After the hearing, the Court will prepare and file the formal Order.

9:00 22CV397444 Swaminathan Nandakumar, Order on Cross-Complainants David 6 et al. Plagens and Linda Plagens’ Motion v. To Enforce Settlement Agreement David Plagens, et al. See Line 6 below for complete tentative ruling.

After the hearing, the Court will prepare and file the formal Order.

Line 6 Case Name: Swaminathan Nandakumar, et al. v. David Plagens, et al.

Case No.: 22CV397444 Cross-Complainants David Plagens and Lisa Plagens (the “Plagens Cross- Complainants”) move under Code of Civil Procedure Section 664.6 to enforce the settlement agreement reached by a written email exchange on June 17-18, 2026. Notice of Motion (the “Motion”) at 1:22-25 (filed: July 13, 2026).

The Motion came on for hearing on September 9, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

Facts

This is a neighbor and property-line dispute between the Nandakumars (Plaintiffs/ Cross-Defendants) and the Plagens (Defendants/Cross-Complainants) over conflicts over a shared fence and boundary line. Plaintiffs filed the present Complaint on April 22, 2022, and Defendants filed their Cross-Complaint on September 16, 2022. Suffice it to say that these parties have a long history of litigation over the same fence and property issues.

Focusing on the present Motion, on June 17, 2026, at 7:56 p.m., Cross- Complainants’ then-counsel, Keeley Vega of Thompson Hine LLP, sent an email to Cross- Defendants’ counsel, Austin Houvener of Toschi Doyle Houvener & Wellen with a settlement demand. Declaration of David Plagens (“Plagens Decl.”) in Support of Motion at ¶ 3. The email stated: “I am writing to check in on the settlement offer from the Plagens communicated to you verbally this afternoon: a $100k payment in exchange for the dismissal of the Plagens’ cross claims with no non-monetary terms.” Plagens Decl., Ex. A (the “June 17 email”). The June 17 email requested “a response by no later than 9:00 am tomorrow in view of the scheduled trial setting” Id.

On June 18, 2026, at 8:23 a.m., Mr. Houvener, counsel for the Nandakumars, replied by email, stating: “CSAA, on behalf of its insureds Rekha and Swaminathan Nandakumar, accepts the below demand from the Plagens for $100,000.” Plagens Decl., Ex. B (the “June 18 reply email”). Yet the same June 18 reply email stated: “Attached please find a draft release for your clients’ review and comment. This is a draft and we ask that your clients track changes and send any requested changes back for review. If there are no changes, please have your clients sign and return along with your office’s requested draft instructions” Id.

Importantly the draft attached to the July 18 reply email contains release a general release of all claims, forever and fully releasing, acquitting and discharging the Nandakumars and their agents, servants, successors, heirs, executors, administrators, indemnitors, plus express waiver of Section 1542 of the Civil Code, plus lien-satisfaction conditions precedent to payment, plus attorney-fee-shifting provisions. Those are all non-monetary terms. Plagens Decl., Ex. C (the “July 18 draft release”)

Moreover, on June 18, 2026, “David and Lisa Plagens personally appeared in open court and represented to the Court that there was no resolution of their Cross-Complaint against Cross-Defendants.” Declaration of Rhiannon Hayward (“Hayward Decl.”) in Opposition to Motion at ¶ 6. The minute order from that hearing reflects that David Plagens and Lisa Plagens were present and “advise the Court that the Cross-Complaint has not been settled.” Minute Order (filed: June 18, 2026), attached as Ex. 2 to Hayward Decl.

On June 20, 2026, Ms. Vega, on behalf of the Plagens, sent an email to Cross- Defendants’ counsel stating that “the Plagens believe CSAA’s proposed release goes substantially beyond their offer and CSAA’s acceptance thereof. It is their view that the additional releases, waivers, and other terms were not part of the offer that was made or accepted.” Hayward Decl., Ex.

3. That June 20 email attached “a proposed agreement that reflects those initial terms: $100k payment, dismissal of cross claims, and no additional terms” Id. The June 20 email further stated: “If CSAA wishes to include the additional terms, the Plagens ask to increase the payment to $175k as additional consideration” Id., attaching two proposed settlement agreements: one reflecting the $100k/no-additional-terms version, and one reflecting the $175k/additional-terms version. Hayward Decl., Exs. 4 & 5.

Cross-Defendants did not accept the $175,000 counterproposal, and “no further agreement was reached between the parties regarding the terms of any settlement of the Cross-Complaint.” Hayword Decl. at ¶8. No release was ever signed by any party. Id.

Next, on June 24, 2026, Lisa and David Plagens “sent Mr. Houvener and Ms. Hayward a written memorialization of the June 18 settlement[,]”Plagens Decl. at ¶ 11, which states that it “reflects only the agreed terms: payment of $100,000 in exchange for dismissal of the Cross-Complaint, with no non-monetary terms.” Plagens Decl., Ex. D.

The Cross-Complaint has not been dismissed.

Cross-Complainants now move under Code of Civil Procedure section 664.6 to enforce the alleged settlement agreement formed by the June 17–18, 2026 email exchange, seeking an order requiring “payment of $100,000 in exchange for dismissal with prejudice of the Cross-Complaint, with no additional non-monetary terms beyond dismissal of the Cross-Complaint.” Motion 2:1-4

Legal Standard on Motion to Enforce Settlement Agreement

California Code of Civil Procedure Section 664.6 authorizes enforcement of agreements where “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[.]” C.C.P. §664.6. To enforce a settlement under Section 664.6, the moving party bears the burden of demonstrating by a preponderance of the evidence that a valid, binding settlement was reached. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357; Code Civ. Proc., § 664.6.)

Whether a binding contract was formed requires mutual assent to all material terms. An acceptance must be absolute and unqualified; if it varies or adds material terms, it is a counteroffer, not an acceptance. (BTHHM Berkeley, LLC v. Johnston (2024) 100 Cal.App.5th 1220, 1224; Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.) A qualified or conditional acceptance is not an acceptance but a counteroffer. (Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.) An ostensible acceptance that adds material terms operates as a counteroffer requiring acceptance before any contract arises.

In resolving the Motion, the Court applies an objective standard, asking what a reasonable person in the position of the offeror would understand the offeree’s response to mean. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793; Roth v. Malson (1998) 67 Cal.App.4th 552, 557)

Analysis of the Motion

I. The June 17-18, 2026 email exchange between attorneys for the parties did not form a binding settlement agreement.

The Plagens Cross-Complainants contend that the June 17–18, 2026 attorneysigned email exchange constitutes a binding, enforceable settlement agreement under Code of Civil Procedure Section 664.6 with mutual assent on all material terms. The Court respectfully disagrees. Cross-Complainants have not carried their burden to prove by a preponderance of the evidence that a valid, binding settlement was reached.

The Motion fails because the June 18, 2026 email response from the Nandakumars’ counsel was a counteroffer rather than an unqualified acceptance, and therefore no contract was formed. That June 18 email from the Nandakumars’ counsel simultaneously stated acceptance of the $100,000 demand but also attached a draft release containing non-monetary terms that the Plagens’ offer expressly excluded. Under the objective standard governing contract formation and the mirror-image rule, that response varied the terms of the offer and therefore operated as a counteroffer, not an acceptance (Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.) Because there was no acceptance, no binding settlement agreement was formed so this Motion fails.

A. The June 18, 2026 Email from the Nandakumars’ counsel was a counteroffer, not an acceptance of the Plagens’ offer.

As shown in the record as detailed in the Facts section above, the June 18 email from Cross-Defendants’ counsel stated: “CSAA, on behalf of its insureds Rekha and Swaminathan Nandakumar, accepts the below demand from the Plagens for $100,000.” Read in isolation, that language might appear to be an unqualified acceptance of the June 17, 2026 demand for a $100k payment in exchange for the dismissal of the Plagens’ cross claims with no non-monetary terms. But the same June 18 email from the Nandakumar’s counsel email simultaneously attached a draft release for Cross-Complainants’ review and comment.

The draft release attached to the June 18 email contained broad provisions that are materially different from the narrow payment-and-dismissal offer made by the Plagens June 17 email. The attached draft release included a general release of all claims, forever and fully releasing, acquitting and discharging the Nandakumars and their agents, servants, successors, heirs, executors, administrators, indemnitors, plus express waiver of Section 1542 of the Civil Code, plus lien-satisfaction conditions precedent to payment, plus attorney-fee-shifting provisions among others. Those are all non-monetary terms— exactly what the Plagens excluded from their offer.

The Plagens’ June 17 offer was crystal clear: it expressly stated “no non-monetary terms.” Under the objective standard governing contract formation, a reasonable person in Plagens’ position as the offeror would not understand the June 18 reply email from the Nandakumar’s counsel—that simultaneously says we accept your demand but attaches a release containing a broad array of non-monetary terms that the offer expressly excluded—as an acceptance. That is not an unqualified acceptance of an offer that said no non-monetary terms; rather, that is a response that accepts the monetary core but introduces non-monetary provisions for further negotiation.

An acceptance that varies, qualifies, or adds terms to an offer operates as a rejection and counteroffer rather than an acceptance, precluding contract formation. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793.) An acceptance must be absolute and unqualified; if it varies or adds material terms, it is a counteroffer rather than an acceptance. (Id., BTHHM Berkeley, LLC v. Johnston (2024) 100 Cal.App.5th 1220, 1224; Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.) A qualified or conditional acceptance is not an acceptance but a counteroffer. (Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.).

On this record, the June 18 email from the Nandakumar’s counsel, read as a whole and objectively, was not an unqualified acceptance but a counteroffer. The Plagens demanded payment and dismissal with no non-monetary terms. The Nandakumars responded with acceptance language but simultaneously attached a release containing non-monetary terms and requested that those terms be reviewed, revised if necessary, and signed. Under the mirror-image rule, that response varied the terms of the offer and therefore operated as a counteroffer. (Siri v. Sutter Home Winery (2022) 82 Cal.App.5th 685, 691.) Because the June 18 email was a counteroffer rather than an acceptance, no

contract was formed on June 18, 2026.

B. The phrase ‘No Non-Monetary Terms’ is not ambiguous.

The Plagens now contend that the phrase “no non-monetary terms” that they used in their June 17 offer is ambiguous and reasonably susceptible to a narrower construction that would permit standard release provisions while excluding only fence-related obligations. To that end, the Plagens urge the Court to consider the parties’ 2019 settlement agreement, the June 15, 2026 mediation context, and the course of dealing between the parties as extrinsic evidence showing that no non-monetary terms meant no fence-related obligations rather than no release language.

Whether contractual language is ambiguous is a question of law for the court to decide. (Civ. Code, § 1542; Pac. Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 37.) Language is ambiguous only if it is reasonably susceptible to more than one interpretation. (§ 1542.) Under California law, the court must first provisionally consider the extrinsic evidence offered by the parties and then decide whether the disputed language is reasonably susceptible to the meaning urged. (Pac. Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 39.) Extrinsic evidence is inadmissible if the language is not reasonably susceptible to the proffered interpretation. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The Court has provisionally considered the extrinsic evidence offered by Cross- Defendants and finds that the phrase no non-monetary terms is not reasonably susceptible to the narrower construction they urge. A natural reading of the phrase “no non-monetary terms” plainly excludes any obligation, condition, or provision that does not involve the exchange of money. The phrase is categorical, not limited to fence and property issues. Nothing in that language limits ‘non-monetary terms’ to fence reconstruction terms. A general release, a Civil Code section 1542 waiver, an indemnity, a confidentiality clause, an attorney-fee-shifting provision, and a lien-satisfaction condition are all non-monetary terms. By using that phrase in their June 17 offer, the Plagens thus excluded all of them as a categorical matter.

If the offer meant to permit a standard general release or section 1542 waiver— which are ordinarily included in settlement agreements involving property disputes or ongoing relationships—it would have said no additional non-monetary terms or no nonmonetary terms except a standard mutual release or used some other limiting language. But the Plagens’ clear June 17 offer as written contains no such limitation. The language says no non-monetary terms, not no additional fence work. As a matter of ordinary English usage, no non-monetary terms is not reasonably read as permitting standard release, waiver, indemnity, confidentiality, non-disparagement, and fee-shifting terms. The narrower reading Cross-Defendants propose does interpret the words the Plagens used in their clear June 17 offer; rather, it rewrites the June 17 offer to include a limitation that was not in that offer.

The parties’ 2019 settlement agreement does not support Cross-Defendants’ position either. That agreement expressly included a mutual release of all known and

unknown claims and an express waiver of Civil Code 1542. Hayword Decl at ¶¶ 5, 17. Because that agreement expressly spelled out the release and expressly recited the section 1542 waiver, it shows that when these parties want such provisions, they know how to say so. It does not show they treat a release or section 1542 waiver as falling outside the category of non-monetary terms; it shows they separately negotiate and document such terms when desired.

Regarding the mediation, mediation is protected from disclosure by Evidence Code section 1119. That statute makes inadmissible evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to a mediation. Evid. Code § 1119. It likewise protects communications, negotiations, and settlement discussions in the course of a mediation. (Id.) Those protections are absolute and admit no judicially created exceptions. (Foxgate Homeowners’ Ass’n v. Bramalea California, Inc. (2001) 26 Cal.4th 1.)

They apply broadly to communications made for the purpose of, in the course of, or pursuant to mediation. (Cassel v. Superior Court (2011) 51 Cal.4th 113.) Although the June 17 email was sent after the mediation, any attempt to use mediation statements to interpret the June 17 demand would run afoul of the confidentiality bar. (Simmons v. Ghaderi (2008) 44 Cal.4th 570; Foxgate Homeowners’ Ass’n v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Cassel v. Superior Court (2011) 51 Cal.4th 113.) The Court therefore does not consider the June 15 mediation discussions as admissible extrinsic evidence of meaning for the purposes of resolving this Motion.

C. The Parties’ conduct after June 18, 2026 belies that there was settlement agreement here.

The parties’ conduct on and after June 18, 2026 reinforces the Court’s finding that mutual assent on all material terms did not exist here. Statements and conduct of a party may be considered as party admissions bearing on assent and the parties’ understanding of whether a complete agreement was reached. (Eagle Fire & Water Restoration, Inc. v. City of Dinuba (2024) 102 Cal.App.5th 448.)

Here, on June 18, 2026, David and Lisa Plagens personally appeared in open court and represented to the Court that there was no resolution of their Cross-Complaint against Cross-Defendants. The Minute Order states that they advised the Court that the Cross-Complaint has not been settled. This in-court statement is powerful evidence. It is a party admission made by the Plagens themselves, in open court, under circumstances calling for candor to the tribunal. (Greisman v. FCA US, LLC (2024) 103 Cal.App.5th 1310; Eagle Fire & Water Restoration, Inc. v. City of Dinuba (2024) 102 Cal.App.5th 448.)

The fact that the Plagens represented to the Court on June 18, 2026, that no settlement had been reached strongly suggests they did not objectively understand the June 18, 2026 email from the Nandakumars’ counsel as an unqualified acceptance of the Plagens’ June 17, 2026 offer.

Moreover, a few days later on June 20, 2026, attorney Vega, on behalf of Cross- Complainants, sent an email stating that “the Plagens believe CSAA’s proposed release

goes substantially beyond their offer and CSAA’s acceptance thereof” and “[i]t is their view that the additional releases, waivers, and other terms were not part of the offer that was made or accepted.” The email attached “a proposed agreement that reflects those initial terms: $100k payment, dismissal of cross claims, and no additional terms” The same email then stated: “If CSAA wishes to include the additional terms, the Plagens ask to increase the payment to $175k as additional consideration,” attaching two proposed settlement agreements: one reflecting the $100k/no-additional-terms version, and one reflecting the $175k/additional-terms version.

That June 20, 2026 email demonstrates that by that date, both sides plainly had a live disagreement about whether the release terms attached to the June 18, 2026 email were part of any bargain. That disagreement demonstrates the absence of mutual assent on all material terms at inception. The fact that Cross-Complainants offered two alternative agreements—one for $100,000 with no additional terms and one for $175,000 with broader release language—shows the payment obligation and the contested release package were still being negotiated as alternative bargains, not as severable fragments of an already consummated contract. This reinforces the Court’s finding above that no settlement agreement was reached here.3

Conclusion & Order

The Plagens Cross-Complainants have not carried their burden as the moving party to prove by a preponderance of the evidence that a valid, binding settlement agreement was reached. The June 18, 2026 reply email by the Nandakumars’ counsel, read objectively and as a whole, was a counteroffer and not an unqualified acceptance because it simultaneously stated acceptance of the $100,000 demand but also attached a draft release containing non-monetary terms that the Plagens’ June 17, 2026 offer expressly excluded. The Plagens’ Cross-Complainants’ own June 18, 2026 in-court representation that the Cross-Complaint has not been settled, and their June 20, 2026 dual settlement proposal reinforce the Court’s finding that mutual assent on all material terms was not established here.

Accordingly, after reviewing all papers and the record, and in the broad exercise of its discretion, the Court DENIES the Motion in all respects.

SO ORDERED.

3 In light of the Court’s ruling that no settlement agreement exists here, the Court need

not and does not reach additional issues raised by the parties that are mooted by this ruling, e.g., issues regarding enforcement of the (nonexistent) settlement agreement.

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