Andruss v. Superior Court

Opinion

VOGEL (Miriam A.), J.

Malcolm and Tina Andruss, dissatisfied with their purchase of a retail automotive center, sued their broker (Van Ness & Sperry, Inc., doing business as Sperry Van Ness) and the seller (Barclays Business Credit, Inc.)

1

for fraud and rescission. Barclays filed a motion for summary judgment in which Sperry joined, and the Andrusses filed opposition. Before the motion was heard, the Andrusses and Sperry signed a

[1278]

written settlement agreement, with Sperry agreeing to pay the Andrusses $85,000 subject to two contingencies: (1) verification that there was no contractual indemnity provision between Barclays and Sperry, and (2) determination by the trial court that the settlement was made in good faith. (Code Civ. Proc., § 877.6.)

2

The settlement was

not

contingent upon a denial of the then-pending summary judgment motion.

The indemnity contingency was quickly satisfied and Sperry set a section 877.6 motion to be heard on the same day as the summary judgment motion. Barclays filed opposition to the section 877.6 motion, the parties appeared for argument, and the trial court took both motions under submission. On February 9, 1996, the court granted the summary judgment motion (thereby resolving the case in favor of both defendants) and took Sperry’s section 877.6 motion “off calendar as moot” (an argument that had not been advanced by any party). On February 23, the Andrusses filed their own section 877.6 motion, explaining that their settlement with Sperry was

not

contingent upon a denial of the summary judgment motion (but was contingent upon the court’s determination that the settlement was made in good faith). Barclays opposed the motion.

On March 15, at which time no judgment had been entered, the court heard argument and took the Andrusses’ motion under submission. Later that day, the court ruled that it “considered] its original determination to be the correct one, and again plac[ed] the motion off calendar.” On April 3, the Andrusses filed a petition for a writ of mandate, asking us to compel the trial court to hear their section 877.6 motion. We issued an alternative writ, received opposition from Barclays, and heard argument. We now issue the writ.