Telly v. Sanchez et al.

On September 10, 2024, Defendants filed a motion for summary judgment to the complaint. The motion was heard and submitted on December 17, 2024. Thereafter, the court (Hon. Monahan) issued an order denying the motion for summary judgment.

On May 2, 2025, Liberty Mutual Fire Insurance Company (“Liberty”) filed a motion for leave to intervene in this action. The motion was set for hearing on June 27, 2025. The court (Hon. Monahan) granted the motion and Liberty filed its answer-in-intervention to the complaint on July 1, 2025.

On November 12, 2025, Liberty filed the motion presently before the court, a motion for summary judgment to the complaint. Liberty filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Liberty filed reply papers and evidentiary objections.

A trial setting conference is scheduled for June 10, 2026.

Request for Judicial Notice

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

In support, Liberty requests judicial notice of the following:

• Plaintiff’s complaint; • Defendants’ Motion for Summary Judgment in this action; • Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment; • Order Denying Defendants’ Motion for Summary Judgment; • Liberty’s Motion for Leave to Intervene in this action; • Order Granting Liberty’s Motion for Leave to Intervene; • Liberty’s Answer-in-Intervention filed in this action; • Motion for Summary Judgment filed by Defendant and Cross-Complainant Raed Hodroj in CSAA Ins. Exch. V. Hodroj (Hodroj), Santa Cruz Superior Court Case Number 17CV00467; • Motion for Summary Judgment filed by Plaintiff and Cross-Defendant CSAA Insurance Exchange in Hodroj; • Separate Statement of Undisputed Material Facts filed by Plaintiff and Cross-Defendant CSAA Insurance Exchange in Hodroj. (See Request for Judicial Notice [“RJN”] at Exs. 1-10.)

The court declines to take judicial notice of the complaint and Liberty’s Answer-in- Intervention as the court must necessarily consider allegations of the pleadings on a motion for summary judgment. (See Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640 [“On a motion for summary judgment, the issues are framed by the pleadings since it is those allegations to which the motion must respond.”]; see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].)

The court takes judicial notice of the remaining exhibits under Evidence Code section 452, subdivision (d) as they constitute records of the superior court. (See Miller v. Super. Ct. (2002) 101 Cal.App.4th 728, 734, fn. 2 [appellate court took judicial notice of superior court files under Evidence Code sections 452, subdivision (d) and 459]; see also Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Accordingly, the request for judicial notice as to Exhibits 1 and 7 is DENIED. The request for judicial notice as to Exhibits 2-6 and 8-10 is GRANTED.

Evidentiary Objections

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court...” (Code Civ. Proc., § 437c, subd. (c).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the

motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.)

In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).)

In reply, Liberty submits objections to evidence incorporated with Plaintiff’s opposition. The court OVERRULES Objection Nos. 2, 4-6, and 8. The court declines to rule on the remaining objections as they are not material to the outcome of the motion for reasons explained below.

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The object of the summary judgment procedure is ‘to cut through the parties’ pleadings’ to determine whether trial is necessary to resolve their dispute. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1020.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

“[S]ummary judgment is a drastic remedy and should be used with caution. [Citation.] Because summary judgment is a drastic procedure all doubts as to the propriety of granting a

motion for summary judgment should be resolved in favor of the party opposing the motion. [Citations.]” (Tully v. World Savings & Loan Assn. (1997) 56 Cal.App.4th 654, 660; see Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 684 [“The drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.”].)

Analysis

Liberty argues summary judgment is warranted as the parties entered into a binding settlement agreement on November 21, 2023 when Liberty accepted Plaintiff’s Policy Limit Demand.

“ ‘A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.’ [Citation.] One of the essential elements of an enforceable contract is mutual consent. [Citation.] For consent to be mutual, the parties must all agree on the same thing in the same sense. [Citations.] ‘ “The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.” ’ [Citation.] ‘If there is no evidence establishing a manifestation of assent to the “same thing” by both parties, then there is no mutual consent to contract and no contract formation.’ [Citation.]” (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732-733.)

“In order for acceptance of a proposal to result in the formation of a contract, the proposal ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ [Citation.] A proposal ‘ “cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [P] ... The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” ’ [Citations.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811 (Weddington).)

“If, by contrast, a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. [Citations.] ‘In particular...a provision that some matter shall be settled by future agreement, has often caused a promise to be too indefinite for enforcement.’ [Citation.] ‘[I]f an essential element is reserved for the future agreement of both parties, as a general rule the promise can give rise to no legal obligation until such future agreement. Since either party in such a case may, by the very terms of the promise, refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such a promise.’ [Citation.]” (Weddington, supra, 60 Cal.App.4th at p. 812.)

“A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1622.)

In support, Liberty submits a separate statement of material facts relying primarily on a declaration from Alex J. Etringer (“Etringer”), a Sr. Claims Resolution Specialist IV for Liberty. According to those material facts, Liberty issued an auto policy to defendant Sanchez with a coverage effective May 7, 2021 to May 7, 2022. (Liberty’s Separate Statement of Undisputed Facts [“SSUF”] at No. 1.) The auto policy issued by Liberty to Sanchez covers a

2023 Acura 3.2CL (“subject vehicle”) and includes bodily injury liability coverage limits of $15,000 each person. (Id. at No. 2.) On March 9, 2022, Sanchez contacted Liberty to report an auto versus pedestrian accident, which occurred on the evening of March 8, 2022. (Id. at No. 4.) According to the traffic collision report for the accident, Sanchez’s son, defendant Garcia, was driving the subject vehicle and collided with Plaintiff. (Id. at No. 6.) Liberty determined that Garcia qualifies as an insured under the auto policy with regard to the accident. (Id. at No. 7.)

In a letter dated November 14, 2023, Plaintiff made a “Time Limited Policy Limits Demand” on Liberty which offered a complete release from all present and future liability from the occurrence in exchange for the policy limit. (Liberty’s SSUF at Nos. 23-25.) In particular, the demand stated the following:

SETTLEMENT DEMAND

Taking into consideration the nature and extent of Mr. Telly’s injuries together with the amount of his economic damages and with the understanding that his pain and suffering continue to this date and will continue in future in light of the future medical treatment and residuals therefrom, Mr. Telly has authorized me to submit a policy limits demand to settle his case.

This demand will remain open for 33 days from the date of this letter, after which time it will be withdrawn, and we will proceed with litigation. This demand will resolve all claims within the policy limits and is made inclusive of all liens and includes a complete release from all present and future liability from this occurrence. This demand will only be accepted with proof of limits, including a declaration page setting forth all applicable coverage including excess and umbrella policies. (Etringer Decl. at Ex. 11)

Thereafter, Liberty accepted Plaintiff’s offer on November 21, 2023 in a letter which provided in part:

“We’re writing to acknowledge your letter dated 11/14/23, in which you made a demand of policy limits in exchange for a full release. You afforded Liberty Mutual 33 days to respond to your demand.

We accept your demand.

To comply with your terms of settlement requiring proof of limits, we have included a certified copy of the auto policy declarations page. Please contact me right away if you require additional documents to comply with the policy limits settlement.” (Liberty’s SSUF at No. 27; Etringer Decl. at 13, emphasis in bold added.)

On November 28, 2023, in a letter titled “Time Limited Revised Demand,” Plaintiff’s counsel notified Liberty that his client was willing to accept the policy limit along with an additional contribution of $250,000. (See Liberty’s SSUF at Nos. 30-31; Etringer Decl. at Ex. 15.) Thereafter, in a letter dated December 28, 2023, Liberty rejected the counteroffer claiming an enforceable settlement agreement had been reached on November 21, 2023 when Liberty accepted the November 14, 2023 policy limit demand. (Id. at No. 33; Etringer Decl. at Ex. 17.)

Plaintiff’s attorney did not respond to Liberty’s letter and filed the instant action thereafter. (Id. at Nos. 34-35.)

Here, as pointed out in opposition, the court (Hon. Monahan) already resolved this issue in denying Defendants’ motion for summary judgment.1 (See Liberty’s RJN at Ex. 4.) In doing so, the court discussed and distinguished cases such as Hodroj, a Sixth Appellate District decision, and J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 13 (J.B.B. Investment Partners), which are cited in the moving papers.2 The order also identified evidence raising a triable issue of fact as to whether the parties formed a binding settlement agreement. (Ibid.)

Nevertheless, Liberty urges the court to consider the merits of its motion on the ground that Code of Civil Procedure section 999 governs this action and the instant request includes new evidence. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72 [trial court properly exercised discretion in determining that section 437c, subdivision (f)(2) did not bar summary judgment because the operative motion addressed an issue not raised by the prior motion]; see also Patterson v.

Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827 [“A comparison of the arguments and material facts shows that the District’s second motion for summary judgment is not simply a ‘reformatted, condensed, and cosmetically repackaged’ version of its first motion.”].)

Code of Civil Procedure section 999, subdivision (a) provides “[i]t is declared to be the public policy of the State of California that prompt settlements of civil actions and claims are encouraged as beneficial to claimants, policyholders, and insurers.” (Code Civ. Proc., § 999, subd. (a).) A “ ‘[t]ime-limited demand’ means an offer prior to the filing of the complaint or demand for arbitration to settle any cause of action or a claim for personal injury, property damage, bodily injury, or wrongful death made by or on behalf of a claimant to a tortfeasor with a liability insurance policy for purposes of settling the claim against the tortfeasor within the insurer’s limit of liability insurance, which by its terms must be accepted within a specified period of time.” (Code Civ. Proc., § 999, subd. (b)(2).)

“A time-limited demand to settle any claim shall be in writing, be labeled as a time-limited demand or reference this section, and contain material terms, which include the following:

(a) The time period within which the demand must be accepted shall not be fewer than 30 days from the date of transmission of the demand, if transmission is be email, facsimile, or certified mail, or not fewer than 33 days, if transmission is by mail. (b) A clear and unequivocal offer to settle all claims within policy limits, including the satisfaction of all liens. (c) An offer for a complete release from the claimant for the liability insurer’s insureds from all present and future liability for the occurrence. (d) The date and location of the loss. 1 In opposition, Plaintiff construes this argument under principles of collateral estoppel.

The court however finds that doctrine is not applicable as Liberty was not yet a party to this action when the court denied the motion for summary judgment. Also, an order denying summary judgment does not constitute a “final judgment” for purposes of collateral estoppel as the case remains viable for trial. (See Code Civ. Proc., § 577 [“A judgment is the final determination of the rights of the parties.”]; see also California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 9 [a judgment leaves no issue to be determined except compliance with its terms].) 2 The full citation for Hodroj is (2021) 72 Cal.App.5th 272.

(e) The claim number, if known. (f) A description of all known injuries sustained by the claimant. (g) Reasonable proof, which may include, if applicable, medical records or bills, sufficient to support the claim.” (Code Civ. Proc., § 999.1.)

“The recipients of a time-limited demand may accept the demand by providing written acceptance of the material terms outlined in Section 999.1 in their entirety.” (Code Civ. Proc., § 999.3.)

As to the new evidence, Liberty submits a letter dated April 10, 2025 from Plaintiff’s counsel stating that Liberty’s refusal/failure to accept the revised policy limit settlement demand means that the policy limit is now “open.” (Liberty’s SSUF at No. 37.) The letter also provides:

“On November 14, 2023, in an effort to obtain your insured’s policy limits, I made ‘blind’ policy limit demand. [On] November 21, 2023, I was informed by Liberty Mutual that there was only a $15,000.00 policy, and that the demand would be paid. However, based on this new information, on November 28, 2023, I revised the demand requesting an additional contribution of $250,000.00.” (Id. at No. 38.)

On summary judgment, Liberty takes the position that all of the requirements of section 999 have been met as it accepted Plaintiff’s time limited demand when it provided proof of policy limits. (See Liberty’s SSUF at No. 27.) Liberty further argues that Plaintiff’s “blind” policy limit demand did not render such demand unenforceable or incapable of acceptance.

As a reminder, the court is “required to view evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion; doubts as to whether there are any triable issues must be resolved in favor of the opposing party; and equally conflicting evidence or inferences require denial of a summary judgment motion.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.)

Here, the critical issue is whether Plaintiff’s November 14, 2023 policy demand was intended to create a binding settlement agreement or, as Plaintiff argues, serve as a means to facilitate settlement between the parties. To resolve that issue, the Sixth Appellate District requires the court to analyze this case in accordance with one question: “Would a reasonable person looking at the parties’ communications think they intended to be bound by a settlement agreement that would later be reduced to a more formal writing?” (Hodroj, supra, 72 Cal.App.5th at p. 277, emphasis in bold added.)

Like the prior motion, this court finds, based on the entirety of the record, that triable issues of material fact exist as to whether Plaintiff’s demand for policy limits resulted in a binding settlement agreement. For example, in opposition, Plaintiff submits the following evidence: (1) there was no settlement release signed by Plaintiff; (2) Liberty never issued a settlement check to Plaintiff; and (3) there has been no release of claims by Plaintiff. (See Plaintiff’s Additional Facts at Nos. 46-48.) Such evidence weighs against finding a binding settlement agreement between the parties. Also, Liberty’s purported acceptance of the demand included an offer to provide additional documentation which is an indication that settlement negotiations were ongoing as opposed to any final settlement agreement reached between the parties. (See Liberty’s SSUF at No. 27.)

Finally, the record shows that Plaintiff, despite two requests, was unable to obtain policy limits information from Liberty prior to the November 14, 2023 policy demand letter. (See Plaintiff’s Additional Facts at Nos. 41-42.) Liberty rejected the requests on the ground that defendant Sanchez had not given permission to allow disclosure of the policy limit. (Id. at No. 43.) Sanchez however, at her deposition, testified that she never instructed anyone not to disclose her insurance policy limits. (Id. at No. 45.)

Such evidence suggests Liberty may have engaged in gamesmanship by preventing Plaintiff from obtaining the policy limits to allow for good faith settlement negotiations. At least one appellate court decision discussed the danger of an insurer in failing to disclose policy limits: “The present case involves another insurer who, at least allegedly, played with fire in refusing to disclose policy limits. Actually, because California law is quite clear that insurers may not disclose policy limits absent written permission from the insured, the insurer’s sin here was a blanket refusal to contact the insured to see if he wanted the policy limits disclosed.

But functionally it was the same thing. The insurer’s refusal to disclose (or in California, the refusal to give the insured the option of disclosing) policy limits may have foreclosed a possible settlement of the underlying claim within those limits.” (Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390, 1392.)

Nor is this case like J.B.B. Investment Partners where the First Appellate District held a binding settlement agreement was conclusively established by e-mails and voicemails repeatedly expressing acceptance and intent to be bound by a formal written agreement. (See J.B.B. Investment Partners, supra, 37 Cal.App.5th at pp. 1, 9-12.) No such repeated communications are present in this case. Therefore, the court finds Plaintiff, at a minimum, has submitted evidence raising a triable issue of fact to defeat the instant motion for summary judgment.

Consequently, the motion for summary judgment is DENIED.

Disposition

The motion for summary judgment to the complaint is DENIED.

The court will prepare the order.

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