Amkor Construction Services, Inc. vs. Sally I. Kim

Reply to Opposition

Cal. Super. - 4th Dist.September 18, 2014

NO 0 0 N N O N W Y bh W N = N N N N N N O N O N N O N m m o m mm o m e m p s e t m e d e d C 0 NN O N Wn A W N = OO Ov 0 0 N O N N W N = O Edward W. Choi, SBN. 211334 Paul M. Yi, Esq. SBN 207367 LAW OFFICES OF CHOI & ASSOCIATES, APLC 113435 Wilshire Blvd., Suite 2400 Los Angeles, CA 90010 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Attorneys for Plaintiff/Cross-Defendants AMKOR CONSTRUCTION SERVICES, INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 0315/2016 at 02:12:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER - UNLIMITED CIVIL AMKOR CONSTRUCTION SERVICES, INC.,) a California corporation, Plaintiff, Vs. SALLY I. KIM, M.D., an individual; and DOES 1 to 10 inclusive, Defendants. SALLY I. KIM, M.D. an individual, Cross-Complainant, vs. AMKOR CONSTRUCTION SERVICES, INC., a California Corporation; BRIAN KIM, an individual; and ROES 1 to 10, inclusive, Cross-Defendants. N t N t N v N t N w a t N a t “ n t st l wa t “ w t “ w t “ a t “ n t l “ u w t t “ o w t “ w u t “ t t “ t t “ w a t “ t l “ m t “ m t “ w t 1 " Case No.: 30-2014-00746035-CU-CO-CJC RESERVATION NO. 72284767 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 Date: Time; Dept: March 28, 2016 10:30 AM. C26 [C.C.P. § 664.6] (Assigned for all purposes to the Hon. Gregory H. Lewis, Department C26) PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 1 - OO 00 NN O N un bs W N N N N N ND O N N N O N NN m t m m mm rm m d ee e e m m CW NN O N BW Rh W N = O O 0 0 N N N Y R W NN --= OO MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION AND STATEMENT OF FACTS Defendant SALLY I. KIM, M.D. (“KIM” or “Defendant”) is simply trying to “back out” of a settlement that was negotiated through a full day mediation with experienced mediator, Kenneth Gibbs, Esq. Defendant does not dispute that there was an agreement reached at the end of mediation. Indeed, Defendant’s main opposition to Plaintiff's Motion to Enforce is that the Settlement Agreement, signed by all of the parties at the conclusion of mediation, is inadmissible pursuant to Evidence Code §1123. However, Defendant’s position is unfounded because the parties specifically agreed prior to the mediation, that any settlement agreement prepared during the mediation is subject to disclosure, binding, enforceable and admissible. Indeed, prior to engaging in mediation, the parties signed JAMS Confidentiality Agreement (“JAMS Agreement”). (Declaration of Edward W. Choi (“Choi Decl.”) 2; Exhibit A). The JAMS Agreement specifically states on paragraph S that “ANY WRITTEN SETTLEMENT AGREEMENT PREPARED DURING OR AT THE CONCLUSION OF MEDIATION IS SUBJECT TO DISCLOSURE, BINDING, ENFORCEABLE AND ADMISSIBLE to prove the existence of and/or to enforce the agreement under California Code of Civil Procedure §664.6, if applicable, or otherwise”. (Id) Thus, the written settlement agreement, drafted by the mediator during the course of mediation, is subject to disclosure, binding, enforceable and admissible. Further, the settlement agreement signed at the conclusion of the mediation was not a “memorandum of terms”, but a settlement agreement. Nowhere in the agreement state that the writing was a “memorandum of terms”. As stated in the Settlement Agreement, it specifically states that the parties were at an impasse. The mediator wrote a proposal which specifically states: “If both sides say yes, we have a deal; if both side say no, we don’t. If one side says yes and one side says not the side saying no will not be informed that the other side said yes. I will only state that there is no settlement”. (Choi Decl. §3; Exhibit B). It is undisputed that both sides said “yes”. Further, the handwritten language on the bottom right of the settlement agreement states “Amkor + Dr. Sally Kim agree to the following:...” and enumerates four additional terms, in addition to the terms suggested by the mediator. (See Exhibit B). There is no question that the terms of the settlement are sufficiently stated to constitute an enforceable settlement agreement. PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 2 - OO 00 NN S N nn bh W N = N N N N N N N N D N N mm m m m m e m m d h d e s m d be t pe d 0 NN O N wn Ah W N = O O WO 0 0 N N R E W I N D -- Oo Based on the foregoing, Plaintiff requests that the court enter judgment in Plaintiff's favor. IL. ARGUMENT A. SETTLEMENT AGREEMENT SIGNED AT MEDIATION IS NOT CONFIDENTIAL NOR PRIVILEGED BECAUSE THE PARTIES EXPRESSLY AGREED TO ITS ADMISSIBILITY Evidence Code §1123 states: “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect. (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. (Emphasis added.) In unambiguous terms, prior to proceeding with the mediation, the parties expressly agreed in writing “ANY WRITTEN SETTLEMENT AGREEMENT PREPARED DURING OR AT THE CONCLUSION OF MEDIATION IS SUBJECT TO DISCLOSURE, BINDING, ENFORCEABLE AND ADMISSIBLE to prove the existence of and/or to enforce the agreement under California Code of Civil Procedure §664.6, if applicable, or otherwise” (See Exhibit A). Thus, Evidence Code §1123 and the cases cited by Defendant in support of his Opposition are not applicable in this case. B. A VALID SETTLEMENT AGREEMENT EXISTS A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts. Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal. App. 4th 724, 732. “In order for acceptance of a proposal to result in the formation of a contract, the proposal PLAINTIFF'S REPLY TO DEFENDANT’S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 3 - OO 0 0 NN O N Wn bh W N = BN DN N N ND N O N N N em m t mt m t mk mm em p m pe d pe C0 ~~ O N Wn RAR W N = O VW 0 N N YN N R W NY = D ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.” (/d. at 734) Defendant fails to cite a single case in its opposition that the Settlement Agreement in the present case was simply a “Memorandum of Terms”. Instead, Defendant, in conclusory fashion, simply states that the Settlement Agreement was a memorandum of terms and not a binding settlement agreement. Defendant’s failure to cite a single case in support of his position is due to the fact that Plaintiff has shown that all of the essential terms to create an enforceable agreement are present in the Settlement Agreement. Defendant Sally Kim, M.D. is to pay Amkor the sum of $17,500.00. AMKOR is to repair the roof drains and HVAC. A third party neutral is to sign off on the repairs. Both AMKOR and Sally Kim signed the agreement. There are no uncertain terms. All of the elements are present. Further, the only reasonable interpretation of the last line of the Settlement Agreement supports the conclusion that the parties intended on settling their case. Indeed, the Settlement Agreement states “If both sides say yes, we have a deal; if both side say no, we don’t. If one side says yes and one side says not the side saying no will not be informed that the other side said yes. I will only state that there is no settlement”. (Choi Decl. §__; Exhibit B). It is undisputed that both sides said “yes” and therefore, there is a settlement. Further, the handwritten language on the bottom right of the settlement agreement states “Amkor + Dr. Sally Kim agree to the following:...” and enumerates four additional terms, in addition to the terms suggested by the mediator. It is true that the parties intended on executing a long form settlement agreement that include a mutual general release. However, this is no different than the other negotiated terms of the settlement. The settlement agreement, like any other agreement, requires Defendant to pay the settlement funds, in the future. The settlement agreement, also provides that Plaintiff will repair the roof drains and HVAC, as part of the settlement. The parties also agreed to hiring a third party neutral. The mere fact that the parties intended on further executing a long form settlement agreement is not different than the future performance of the Defendant paying Plaintiff $17,500. 1 i" PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 4 - OO 00 N N N Y R W N = N O N ND N N N NN N N N D m s m t e m e t e m e m md e t be d pe 0 N N O N nn A W N = O V 0 N N N R A W NN -= OO 3:8 DEFENSE COUNSEL'S FILING OF THE NOTICE OF SETTLEMENT AND NOW REVERSING HIS POSITION IS GROUNDS FOR SANCTIONS Code of Civil Procedure §128.7 (b) states: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” Defendant’s attorney filed a Notice of Conditional Settlement on September 9, 2015. Defendant’s filing of the Notice of Conditional Settlement caused the court to vacate a Mandatory Settlement Conference on September 10, 2015 along with the trial date. By signing the Notice of Settlement, Defendant’s attorney attested to this Court that this matter had been settled. If Defendant’s attorney did not believe that there was a valid enforceable settlement, at the time that he signed the Notice of Settlement, he should not have signed it. It is true that the parties did not anticipate filing the Request for Dismissal for 90 days, however, this is because the settlement required the parties to negotiate a long form settlement agreement, perform a few repairs and then have the repairs approved by a third party. PLAINTIFF’S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 5 - O 00 2 O&O wn hh W N = N O R D O N R N R BR em em em em mm em em em © I A&A L B A W O R N = S&S OVW N O A W N = Oo Thus, given that Defendant’s attorney now alleges, in his Opposition, that there was no settlement, he has violated C.C.P. §128.7 and should be sanctioned for his false statement made to this Court. III. CONCLUSION For the foregoing reasons, the Court should grant Plaintiff's motion and enter judgment in favor of Plaintiff and against Defendant SALLY I. KIM, M.D. in the amount of $17,500.00. Further, given Defendant’s refusal to comply with the terms of the settlement, Plaintiff requests that it be excused from performance of its obligations under the settlement to repair the premises. Dated: March 15, 2016 Respectfully submitted, LAW OFFICES OF CHOI & ASSOCIATES Edward W. Choi. Attorneys for Plaintiff AMKOR CONSTRUCTION SERVICES, INC. PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 - 6 - PROOF OF SERVICE I am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 3435 Wilshire Boulevard, Suite 2400, Los Angeles, California 90010-2006. On March 15, 2016, I served the foregoing document(s) described as: PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6 on the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: Sonny Koo, Esq. Law Offices of Sonny H. Koo 19800 MacArthur Blvd., Suite 300 Irvine, CA 92612 BY MAIL As follows: [am “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices of the addressee. X BY ELECTRONIC SERVICE I caused a true and complete copy of the document(s) described above to be transmitted by uploaded to One Legal to be served on the offices of the addressees. __X___ (State) I declare under penalty of perjury that the foregoing is true and correct. (Federal) Ideclare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on March 15, 2016, at Los Angeles, California. [HT Christine Choo PROOF OF SERVICE