Baldwin v. Shui CA2/1

Filed 8/29/13 Baldwin v. Shui CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CHRISTOPHER BALDWIN, B244491

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC415095) v.

FUNK SHUI, LLC, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick C. Shaller, Judge. Reversed. ______ Franceschi Law Corporation and Ernest J. Franceschi, Jr. for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith LLP, Mike Martinez, Jason R. Chermela, and John J. Weber for Defendants and Respondents. ______

Plaintiff Christopher Baldwin appeals from the judgment of dismissal entered after defendants Funk Shui, LLC and Jason Alkhaldi successfully moved to enforce a settlement agreement pursuant to Code of Civil Procedure, section 664.6.1 Baldwin argues that defendants’ motion should have been denied because section 664.6 is inapplicable. We agree and reverse. BACKGROUND Baldwin filed suit against defendants for assault and battery. After discovery, the parties entered private mediation. Without admitting liability, defendants drafted a written “Confidential Settlement Agreement and Release,” offering Baldwin $250,000 in exchange for a dismissal of the action with prejudice. The agreement included provisions for reasonable attorney fees should either party move to enforce the settlement. Following negotiations, Baldwin’s counsel, Raymond McElfish, filed an unconditional “Notice of Settlement of Entire Case” on April 12, 2012, promising to dismiss the case within 45 days of the settlement. Baldwin requested minor grammatical changes to the agreement via email, and defense counsel agreed. Baldwin and McElfish each signed the modified agreement, but the agreement was not signed by defense counsel or by anyone else on behalf of any defendant and did not even include a line for such a signature. On June 6, 2012, Axis Surplus Insurance Company sent a check for $250,000 to Baldwin and McElfish. Plaintiff received the check but did not deposit it.2 Baldwin refused to dismiss the case, so defendants moved to enforce the agreement under section 664.6, requesting that the court dismiss the action with prejudice and award reasonable attorney fees pursuant to the settlement’s terms. Defense counsel signed a supplemental declaration stating that Axis Surplus Insurance Company insured defendants throughout the negotiations and provided the defense and indemnification without reservation, and that the policy did not require defendants to consent to a settlement. Baldwin objected in writing to the evidence about the insurance policy, but