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Richard Abel
1
2222 Cleveland Avenue, Apt. 1002
2 Santa Rosa, CA 95403
Telephone: (707) 340-3894
3
4 Plaintiff, in pro per
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SONOMA
10
RICHARD ABEL, an individual; Case Number: SCV-263456
11
Plaintiff; PLAINTIFF'S OPPOSITION TO MOTION
12
TO DISMISS AND SANCTIONS
v.
13
14 B. EDWARD McCUTCHAN JR. an
individual; SUNDERLAND/McCUTCHAN,
15 LLP, a general partnership; and DOES 1 Date: May 22, 2024
through 100, inclusive; Time: 3:00 p.m.
16
Dept: 18
17 Defendants. Judge: Hon. Christopher Honigsberg
18
19
Plaintiff Richard Abel ("Plaintiff") opposes the motion to dismiss and sanctions of
20 defendants B. Edward McCutchan, Jr.; Robert J. Sunderland; Sunderland/McCutchan, LLP
21 ("SMP"); and Sunderland/McCutchan, Inc. ("SMI"), (collectively the "Moving Parties").
22 I.
INTRODUCTION
23
A party may oppose the dismissal by alleging that no binding settlement has been
24
reached, in which event "good cause" exists for not dismissing the action. (Irvine v. Regents of
25
Univ. of Calif. (2007) 149 Cal.App.4th 994, 1001; see also Levitz v. The Warlocks (2007) 148
26
Cal.App.4th 531, 535).
27
On November 22, 2023, the Court stated in its Minute Order:
28
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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"Defense needs to be prepared to address why all defendants are not listed
1
as signatories on the settlement." (See, RFJN Ex. F).
2
3 Defense still does not have the participation and signatures of all defendants on a written
4 settlement agreement. The agreement was not submitted by Defense in their moving papers.
5 On November 22, 2023, the Court also stated in its Minute Order:
6
"The Court confirms that any dismissals should be filed after the
7 judgment is received by the plaintiff." (See, RJJN Ex. F).
8
Moving Parties still have not paid the judgment. Plaintiff will not dismiss anyone until
9
full payment is received, and the check clears the bank.
10
Moving Parties' grounds for this motion is Rule 3.1385 of the California Rules of Court.
11
This rule would only apply if there was satisfactory completion of all of the specified terms.
12
That has not happened. Moving Parties have not sufficiently demonstrated that all defendants
13
entered into a valid written and signed settlement agreement.
14
C.C.P. §583.410(a) also has no application. There has been nothing but unnecessary and
15
unreasonable delays by Moving Parties to avoid signing a written settlement agreement and pay
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the outstanding judgment. Even after numerous emails and calls to Mr. Promm have failed to
17
produce any result. Any delay here was caused by Moving Parties' own inaction.
18
19 II.
FACTS
20
On June 6, 2023, Plaintiff and defendant McCutchan reached a settlement agreement.
21
(See, June 6, 2023 Minute Order, Plaintiff's Request for Judicial Notice ("RFJN") Ex. E).
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Only Plaintiff and defendant McCutchan appeared in Court on June 6, 2023. (Id.)
23
On June 6, 2023, the settlement agreement was put on the record (the “Stipulation”). (Id.)
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Only Plaintiff and defendant McCutchan participated in the voir dire on June 6, 2023 and orally
25
assented to the Stipulation. No other defendant participated. (Id.) The Minute Order states who
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was present in the courtroom. Alexander Promm was not present. (Id.) Moving Party Robert
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Sunderland was not present. (Id.) (See also, Abel Decl. ¶3).
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PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 Plaintiff's understanding on June 6, 2023 was that all defendants would be parties to a
2 global settlement agreement. (Abel Decl. ¶4). For example, on page 5 of the transcript, Judge
3 Chouteau stated: “the parties are to sign a mutual release and settlement agreement.” (Abel
4 Decl. Ex. A, 5:2-3). The term “the parties” was understood by Plaintiff to mean all of the
5 litigants. (Abel Decl. ¶4). Seeking clarification, Plaintiff specifically asked that all defendants
6 be parties. (Abel Decl. Ex. A, 8:6-7). Mr. Picchi stated that all defendants would be parties to
7 the written agreement, and each would be bound by their attorney who would sign on their
8 behalf. (Abel Decl. Ex. A, 8:8-16). Plaintiff's understanding was that the agreement would be
9 binding on all defendants. (Abel Decl. ¶4).
10 On November 22, 2023, the Court stated in its Minute Order: "The Court confirms that
11 any dismissals should be filed after the judgment is received by the plaintiff." (See, RFJN Ex. F).
12 The judgments have not been paid by Moving Parties. (See, Abel Decl. ¶5).
13 On December 21, 2023, Plaintiff requested that Mr. Promm send a copy of the fully
14 executed settlement agreement (the "Agreement"). (Abel Dec. ¶6).
15 Mr. Promm drafted the Agreement. (See, Promm Decl. ¶5).
16
The Agreement identified only three (3) defendants as the parties to the Agreement1,
17
which are: (a) B. Edward McCutchan, Jr.; (b) Robert J. Sunderland; and (c) Sunderland/
18
McCutchan, LLP ("SMP"). (See, Abel Decl. Ex. B). Sunderland/McCutchan, Inc. ("SMI") is
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not identified as a party in the Agreement, nor did anyone sign for SMI. (Id). No other
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defendants are identified in the Agreement as "parties." (Id.)
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Robert Sunderland did not sign the Agreement. Someone typed Robert Sunderland's
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name on the Agreement with a script font to make it appear like a signature. (Abel Decl. ¶7).
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This is not Robert Sunderland's true signature. (Abel Decl. ¶8; RFJN Ex. A, B). There was no
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agreement by the parties to use electronic signatures, which cannot be verified. (Abel Decl. ¶9).
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These defects in the Agreement were pointed out to Mr. Promm multiple times by
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Plaintiff, but Promm refused to correct the Agreement. Instead of correcting these defects, Mr.
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Promm threatened Plaintiff with motions and sanctions. (Abel Decl. ¶10).
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1 The defendants not identified in the Agreement do not have privity to the contract.
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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III.
1
ARGUMENT
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1. Full Performance of the Terms of Settlement Has Not Been Completed
3
"A settlement agreement is a contract, and the legal principles which apply to contracts
4
generally apply to settlement contracts." (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
5
781, 789). "A bilateral contract consists of mutual promises, made in exchange for each other by
6
each of the two contracting parties." (Sully-Miller Contracting Co. v. Gledson/Cashman
7
Construction Inc. (2002) 103 Cal.App.4th 30, 36). "It is essential to the validity of a contract,
8
not only that the parties should exist, but that it should be possible to identify them." (Civ. Code
9
§ 1558).
10
A. All Defendants Are Not Parties to the Agreement
11
The Agreement, as drafted by Mr. Promm, is ambiguous in defining the parties thereto.
12
Witkin states that: "On whether person who signs contract, but is not named in the body thereof,
13
is a party to the contract and liable thereunder, see 94 A.L.R.2d 691." (1 Witkin, Summary of
14
California Law (11th ed. 2017) Contracts, §4 Parties, p. 67).
15
The general rule, found in 94 A.L.R.2d 696, states:
16
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"The general rule, stated in various ways by some courts, is that when the body
of the contract purports to set out the names of the parties thereto and a person
18 not named in the body of the contract signs the contract, and there is nothing in
the contract to indicate that such person signed as a party, such person is not
19
bound by the contract and hence not liable thereunder." (94 A.L.R. 696, II
20 §3[a] General Rule.)
21
Paragraph 1 of the Agreement identifies only three (3) parties to the Agreement. (See,
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Abel Decl. Ex. B). The following defendants2 are not defined as parties in the Agreement:
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1). Defendant Sunderland/McCutchan, Inc. (and a Moving Party here) is not a party.
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2). Defendant Sunderland/McCutchan, LLC is not a party.
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3). Defendant Dale Davis is not a party.
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4). Defendant James Nord is not a party.
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2 These parties are listed in the Court docket as defendants in this action.
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 5). Defendant Edward Albini is not a party.
2 6). Defendant Jacinda Duval is not a party.
3 7). Defendant Bill Hing is not a party.
4 8). Defendant Verna Fung is not a party.
5 9). Defendant Evalina Peritore is not a party.
6 10). Defendant Justin Poeng is not a party.
7 11). Defendant Mark D. Schulte is not a party.
8 12). Defendant Richard Seversen is not a party.
9 13). Defendant Walter Spiridonoff is not a party.
10 14). Defendant Matthew Zdanek is not a party.
11 15). Defendant Lenora Verne Fung is not a party.
12 To be binding, an agreement must be sufficiently definite to enable courts to give it an
13 exact meaning. (See, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App. 4th 810-812).
14 The Agreement here is not definite enough, because it does not affirmatively say that each
15 defendant in this action is a party to the Agreement, and has agreed to be bound by its terms.
16
When the settlement agreement is ambiguous, the court is required to consider extrinsic
17
evidence of the parties' intent. (See, Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th
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175, 183). Here it was understood by Plaintiff at the settlement conference on June 6, 2023 that
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all defendants would be parties to the settlement. (Abel Decl. ¶4). Yet, Mr. Promm refused to
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affirmatively name each defendant in the recitals of the Agreement.
21
In Monster Energy, defendants argued that they could not be bound by the settlement
22
because they were not identified as parties to the agreement. (Monster Energy Co. v. Schechter,
23
supra. 7 Cal.5th 781 at 794). Mr. Promm left the door open for these non-settling defendants to
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claim at some future time that they are not parties to the Agreement.
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B. The Agreement Still Lacks Signatures
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All parties must sign, not just the parties against whom the agreement is sought to be
27
enforced. (See, Sully-Miller Contracting Co., supra. 103 Cal.App.4th at 37 ["A written
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settlement agreement is not enforceable under section 664.6 unless it is signed by all of the
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 parties to the agreement, not merely the parties against whom the agreement is sought to be
2 enforced."]).
3 The following defendants did not sign the Agreement:
4 1). Defendant Sunderland/McCutchan, Inc. (and a Moving Party here) did not sign.
5 2). Defendant Sunderland/McCutchan, LLC did not sign.
6 3). Defendant Robert Sunderland (and Moving Party) did not sign. (See below in ¶C).
7 4). Defendant Edward Albini did not sign.
8 5). Defendant Verna Fung did not sign.
9 6). Defendant Evalina Peritore did not sign.
10 7). Defendant Mark D. Schulte did not sign.
11 8). Defendant Richard Seversen did not sign.
12 9). Defendant Walter Spiridonoff did not sign.
13 C. Robert Sunderland's Electronic Signature Is Invalid
14 Robert Sunderland did not sign the Agreement. Someone typed Robert Sunderland's
15 name on the Agreement. (See, Abel Decl. ¶¶7, 8, 9; also see RFJN Ex. A, B). A printed
16
signature is not a valid signature. (See, J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
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Cal.App.4th 974, 978 ["Fair's printed name on the document was not a signature."].
18
Pursuant to the Uniform Electronic Transactions Act ("UETA") (see, Civ.Code §1633.1
19
et seq.), electronic signatures are not valid unless they first satisfy specific conditions:
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• There must be an agreement between the parties to execute the agreement by electronic
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means, (Civ.Code §1633.5(b));
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• The signature must be associated with the record, (Civ.Code §1633.12(a);
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• The signing person must have had the intent to sign, (Civ.Code §1633.2(h);
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• The transaction must be linked to a method of confirming the signer's identity,
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(Civ.Code §1633.9(a);
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The party seeking enforcement must be able to prove that the e-signature was the act of
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the signatory in order to enforce it. Robert Sunderland could later say that he never signed it, or
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changed his mind, which is exactly what happened in J.B.B. Investment Partners, Ltd. v. Fair.
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 2. Moving Parties Have Not Paid the Judgments
2 Civil Code §1542 refers to “claims.” “Claims” are not judgments. Judgments are valid
3 orders signed by a judge. The judgments herein are not “claims.” Nor could a judgment be
4 construed to be a “cost;” e.g. there is no line on a memorandum of costs to list a judgment.
5 Enforcement of a judgment is not an “abuse of process” and is not “sanctionable.” (See,
6 Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [“levying on the judgment debtor's property is
7 protected by the litigation privilege of Civil Code section 47”].
8 The Agreement only talks about claims, not judgments. Mr. Promm drafted the
9 Agreement. Any ambiguity in the Agreement shall be construed against Mr. Promm as the
10 drafting party. (See, Civ.Code §1654; Sandquist v. Lebo Automotive (2016) 1 Cal.5th 233, 247-
11 248 [“Ambiguity in written agreements are to be construed against their drafters.”).
12 The Court confirmed in the Minute Order on November 22, 2023 that any dismissals
13 should be filed after the judgment is received by Plaintiff. (See, RFJN Ex. F). No objection was
14 made by Mr. Promm at the November 22, 2023 hearing to that ruling.
15 Plaintiff has not received payment on these judgments:
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A. The 2019 Judgment
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On July 23, 2019, a judgment was entered against Sunderland/McCutchan, LLP ("SMP")
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on its cross-complaint in this action. (See, RFJN Ex. C). The judgment, signed by Judge Jennifer
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Dollard, states that "Cross-defendant Richard Abel is the prevailing party on the Cross-
20
complaint." (RFJN Ex. C at 2:7-8). On August 30, 2019, upon receiving the signed judgment
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in the mail, Plaintiff filed the Notice of Entry of Judgment and a memorandum of costs. (Id.)
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No motion to tax costs was filed by SMP.
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SMP's cross-complaint was completely adjudicated in 2019, and there was no appeal.
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It is a final judgment. A cross-complaint is treated as an independent action. It is not dependent
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on plaintiff's action. The issues raised by the cross-complaint are treated as "completely
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severable" from the issues raised by the original complaint and answer. (See, Bertero v. National
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Gen. Corp. (1974) 13 Cal. 3d 43, 51-52; Ohio Cas. Ins. Group v. Sup. Court (Butte Valley
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School Dist.) (1994) 30 Cal.App. 4th 444, 448-449). Case and statutory law recognize that a
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 cross-complaint creates an action distinct and separate from an initial pleading. (Bertero, supra
2 at 51). The judgment on the cross-complaint is not part of the settlement agreement.
3 Here, SMP lost on its cross-complaint in 2019, and a judgment was entered against it.
4 This judgment should have been paid by Mccutchan long ago. Mr. Promm promised Plaintiff
5 that the 2019 Judgment would be paid at the conclusion of this action. Plaintiff waited a
6 reasonable amount of time to receive payment on the 2019 judgment, but has still not been paid.
7 (Abel Decl. ¶11).
8 B. The 2022 Judgment
9 On May 27, 2022, defendant Sunderland/McCutchan, Inc. ("SMI") was ordered to pay
10 Plaintiff $73.68 within 20 days of the order. (See, RFJN, Ex. D, Order entered 5/27/22 at p. 8:8).
11 A monetary sanction is immediately enforceable as a money judgment. (Newland v. Superior
12 Court (1995) 40 Cal.App. 608, 610).
13 SMI did not pay Plaintiff as ordered by the Court. (Abel Decl. ¶12). Instead, Edward
14 Mccutchan dissolved SMI to avoid paying. Four months later in 2022 the Court found that SMI
15 is dissolved. (See, Order entered September 19, 2022 at p.10:12 : "SMI has presented evidence
16
that it is now dissolved per the California Secretary of State" and at p.11:9-10: "SMI appears to
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have dissolved, meaning there are no assets for Plaintiff to collect."
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That maneuver by Mccutchan prevented Plaintiff from enforcing the judgment in 2022.
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A dissolved corporation is required to make provision to pay its debts before it can be dissolved.
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(See Corp. Code §1905). That did not happen here, and Plaintiff had no way to enforce it. SMI's
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failure to pay the sanctions award in 2022 demonstrates Edward Mccutchan's contempt of the
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Court's 5/27/22 order. (RFJN, Ex. D, Order entered 5/27/22 at p. 8:8).
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SMI is not a party to the Agreement. (Abel Decl. Ex. B). This 2022 sanctions award
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(judgment) is not mentioned in the Agreement. (Id.) The amount due on the 2022 judgment,
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including statutory interest at 10%, is now $88.35 as of May 22, 2024. (Abel Decl. ¶13).
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Pursuant to Newland v. Superior Court, this sanctions award is a judgment. In any case, the
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Court confirmed in the Minute Order on November 22, 2023 that no dismissals should be filed
28
until the judgment is received by Plaintiff. (See, RFJN, Ex. F).
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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1 3. The Sanctions Request Must Be Denied
2 As a threshold issue, Moving Parties' request for sanctions pursuant to CCP §128.5 fails,
3 because their motion does not comply with the statutory requirements.
4 First, a motion for sanctions under this section shall be made separately from other
5 motions or requests, and shall describe in detail the specific alleged action made in bad faith or
6 frivolous. (See, Code of Civ.Proc. §128.5(f)(1)(A); Changsha Metro Group Co. Ltd. v. Xufeng
7 (2020) 57 Cal.App. 5th 1, 8). Here, Moving Parties combined their request for sanctions
8 pursuant to CCP §128.5 with their motion to dismiss. This is not allowed by the statute.
9 Second, the moving party is required to first serve their proposed sanctions motion to the
10 other party, and give a 21-day period (the “safe harbor”) whereby the problem can be corrected.
11 Moving Parties failed to do that. A judge must deny a motion for sanctions under CCP §128.5
12 that does not comply with the safe harbor provision. (See, CPF Vaseo Assoc. LLC v. Gray
13 (2018) 29 Cal.App. 5Th 997, 1003-1005; also Nutrition Distribution, LLC v. Southern SARMS,
14 Inc. (2018) 20 Cal.App. 5th 117, 120).
15 Third, section 128.5 requires more than a party just acting with “no good reason.” It
16
requires a showing of subjective bad faith. (See, Levy v. Blum (2001) 92 Cal.App. 4th, 625,
17
635.) Here, Mr. Promm is the one who acted in bad faith. The Court informed Mr. Promm in
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the tentative ruling on November 22, 2023 that all defendants must be parties to the Agreement.
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Promm already knows that. Mr. Promm's goal is to keep his clients out of the Agreement, so
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they can receive the benefits of settlement without incurring any obligations of the Agreement.
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That is not what Plaintiff agreed to at the Settlement Conference on June 6, 2023.
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4. The Settlement Offer Was Rescinded on March 1, 2024
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On February 23, 2024, Plaintiff advised Mr. Promm that unless there was full compliance
24
with the terms and conditions of the settlement by March 1, 2024, then Plaintiff would rescind
25
the settlement offer to those non-settling defendants. The non-settling defendants are those that
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are not identified in the Agreement (See ¶ 4:23-5:11, supra), and those who refused to sign the
27
Agreement (¶ 6:4-12, supra). None of these non-settling defendants attended on June 6, 2023.
28
//
PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS
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Preview
Richard Abel 1 2222 Cleveland Avenue, Apt. 1002 2 Santa Rosa, CA 95403 Telephone: (707) 340-3894 3 4 Plaintiff, in pro per 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 RICHARD ABEL, an individual; Case Number: SCV-263456 11 Plaintiff; PLAINTIFF'S OPPOSITION TO MOTION 12 TO DISMISS AND SANCTIONS v. 13 14 B. EDWARD McCUTCHAN JR. an individual; SUNDERLAND/McCUTCHAN, 15 LLP, a general partnership; and DOES 1 Date: May 22, 2024 through 100, inclusive; Time: 3:00 p.m. 16 Dept: 18 17 Defendants. Judge: Hon. Christopher Honigsberg 18 19 Plaintiff Richard Abel ("Plaintiff") opposes the motion to dismiss and sanctions of 20 defendants B. Edward McCutchan, Jr.; Robert J. Sunderland; Sunderland/McCutchan, LLP 21 ("SMP"); and Sunderland/McCutchan, Inc. ("SMI"), (collectively the "Moving Parties"). 22 I. INTRODUCTION 23 A party may oppose the dismissal by alleging that no binding settlement has been 24 reached, in which event "good cause" exists for not dismissing the action. (Irvine v. Regents of 25 Univ. of Calif. (2007) 149 Cal.App.4th 994, 1001; see also Levitz v. The Warlocks (2007) 148 26 Cal.App.4th 531, 535). 27 On November 22, 2023, the Court stated in its Minute Order: 28 PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 1 "Defense needs to be prepared to address why all defendants are not listed 1 as signatories on the settlement." (See, RFJN Ex. F). 2 3 Defense still does not have the participation and signatures of all defendants on a written 4 settlement agreement. The agreement was not submitted by Defense in their moving papers. 5 On November 22, 2023, the Court also stated in its Minute Order: 6 "The Court confirms that any dismissals should be filed after the 7 judgment is received by the plaintiff." (See, RJJN Ex. F). 8 Moving Parties still have not paid the judgment. Plaintiff will not dismiss anyone until 9 full payment is received, and the check clears the bank. 10 Moving Parties' grounds for this motion is Rule 3.1385 of the California Rules of Court. 11 This rule would only apply if there was satisfactory completion of all of the specified terms. 12 That has not happened. Moving Parties have not sufficiently demonstrated that all defendants 13 entered into a valid written and signed settlement agreement. 14 C.C.P. §583.410(a) also has no application. There has been nothing but unnecessary and 15 unreasonable delays by Moving Parties to avoid signing a written settlement agreement and pay 16 the outstanding judgment. Even after numerous emails and calls to Mr. Promm have failed to 17 produce any result. Any delay here was caused by Moving Parties' own inaction. 18 19 II. FACTS 20 On June 6, 2023, Plaintiff and defendant McCutchan reached a settlement agreement. 21 (See, June 6, 2023 Minute Order, Plaintiff's Request for Judicial Notice ("RFJN") Ex. E). 22 Only Plaintiff and defendant McCutchan appeared in Court on June 6, 2023. (Id.) 23 On June 6, 2023, the settlement agreement was put on the record (the “Stipulation”). (Id.) 24 Only Plaintiff and defendant McCutchan participated in the voir dire on June 6, 2023 and orally 25 assented to the Stipulation. No other defendant participated. (Id.) The Minute Order states who 26 was present in the courtroom. Alexander Promm was not present. (Id.) Moving Party Robert 27 Sunderland was not present. (Id.) (See also, Abel Decl. ¶3). 28 PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 2 1 Plaintiff's understanding on June 6, 2023 was that all defendants would be parties to a 2 global settlement agreement. (Abel Decl. ¶4). For example, on page 5 of the transcript, Judge 3 Chouteau stated: “the parties are to sign a mutual release and settlement agreement.” (Abel 4 Decl. Ex. A, 5:2-3). The term “the parties” was understood by Plaintiff to mean all of the 5 litigants. (Abel Decl. ¶4). Seeking clarification, Plaintiff specifically asked that all defendants 6 be parties. (Abel Decl. Ex. A, 8:6-7). Mr. Picchi stated that all defendants would be parties to 7 the written agreement, and each would be bound by their attorney who would sign on their 8 behalf. (Abel Decl. Ex. A, 8:8-16). Plaintiff's understanding was that the agreement would be 9 binding on all defendants. (Abel Decl. ¶4). 10 On November 22, 2023, the Court stated in its Minute Order: "The Court confirms that 11 any dismissals should be filed after the judgment is received by the plaintiff." (See, RFJN Ex. F). 12 The judgments have not been paid by Moving Parties. (See, Abel Decl. ¶5). 13 On December 21, 2023, Plaintiff requested that Mr. Promm send a copy of the fully 14 executed settlement agreement (the "Agreement"). (Abel Dec. ¶6). 15 Mr. Promm drafted the Agreement. (See, Promm Decl. ¶5). 16 The Agreement identified only three (3) defendants as the parties to the Agreement1, 17 which are: (a) B. Edward McCutchan, Jr.; (b) Robert J. Sunderland; and (c) Sunderland/ 18 McCutchan, LLP ("SMP"). (See, Abel Decl. Ex. B). Sunderland/McCutchan, Inc. ("SMI") is 19 not identified as a party in the Agreement, nor did anyone sign for SMI. (Id). No other 20 defendants are identified in the Agreement as "parties." (Id.) 21 Robert Sunderland did not sign the Agreement. Someone typed Robert Sunderland's 22 name on the Agreement with a script font to make it appear like a signature. (Abel Decl. ¶7). 23 This is not Robert Sunderland's true signature. (Abel Decl. ¶8; RFJN Ex. A, B). There was no 24 agreement by the parties to use electronic signatures, which cannot be verified. (Abel Decl. ¶9). 25 These defects in the Agreement were pointed out to Mr. Promm multiple times by 26 Plaintiff, but Promm refused to correct the Agreement. Instead of correcting these defects, Mr. 27 Promm threatened Plaintiff with motions and sanctions. (Abel Decl. ¶10). 28 1 The defendants not identified in the Agreement do not have privity to the contract. PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 3 III. 1 ARGUMENT 2 1. Full Performance of the Terms of Settlement Has Not Been Completed 3 "A settlement agreement is a contract, and the legal principles which apply to contracts 4 generally apply to settlement contracts." (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 5 781, 789). "A bilateral contract consists of mutual promises, made in exchange for each other by 6 each of the two contracting parties." (Sully-Miller Contracting Co. v. Gledson/Cashman 7 Construction Inc. (2002) 103 Cal.App.4th 30, 36). "It is essential to the validity of a contract, 8 not only that the parties should exist, but that it should be possible to identify them." (Civ. Code 9 § 1558). 10 A. All Defendants Are Not Parties to the Agreement 11 The Agreement, as drafted by Mr. Promm, is ambiguous in defining the parties thereto. 12 Witkin states that: "On whether person who signs contract, but is not named in the body thereof, 13 is a party to the contract and liable thereunder, see 94 A.L.R.2d 691." (1 Witkin, Summary of 14 California Law (11th ed. 2017) Contracts, §4 Parties, p. 67). 15 The general rule, found in 94 A.L.R.2d 696, states: 16 17 "The general rule, stated in various ways by some courts, is that when the body of the contract purports to set out the names of the parties thereto and a person 18 not named in the body of the contract signs the contract, and there is nothing in the contract to indicate that such person signed as a party, such person is not 19 bound by the contract and hence not liable thereunder." (94 A.L.R. 696, II 20 §3[a] General Rule.) 21 Paragraph 1 of the Agreement identifies only three (3) parties to the Agreement. (See, 22 Abel Decl. Ex. B). The following defendants2 are not defined as parties in the Agreement: 23 1). Defendant Sunderland/McCutchan, Inc. (and a Moving Party here) is not a party. 24 2). Defendant Sunderland/McCutchan, LLC is not a party. 25 3). Defendant Dale Davis is not a party. 26 4). Defendant James Nord is not a party. 27 28 2 These parties are listed in the Court docket as defendants in this action. PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 4 1 5). Defendant Edward Albini is not a party. 2 6). Defendant Jacinda Duval is not a party. 3 7). Defendant Bill Hing is not a party. 4 8). Defendant Verna Fung is not a party. 5 9). Defendant Evalina Peritore is not a party. 6 10). Defendant Justin Poeng is not a party. 7 11). Defendant Mark D. Schulte is not a party. 8 12). Defendant Richard Seversen is not a party. 9 13). Defendant Walter Spiridonoff is not a party. 10 14). Defendant Matthew Zdanek is not a party. 11 15). Defendant Lenora Verne Fung is not a party. 12 To be binding, an agreement must be sufficiently definite to enable courts to give it an 13 exact meaning. (See, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App. 4th 810-812). 14 The Agreement here is not definite enough, because it does not affirmatively say that each 15 defendant in this action is a party to the Agreement, and has agreed to be bound by its terms. 16 When the settlement agreement is ambiguous, the court is required to consider extrinsic 17 evidence of the parties' intent. (See, Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 18 175, 183). Here it was understood by Plaintiff at the settlement conference on June 6, 2023 that 19 all defendants would be parties to the settlement. (Abel Decl. ¶4). Yet, Mr. Promm refused to 20 affirmatively name each defendant in the recitals of the Agreement. 21 In Monster Energy, defendants argued that they could not be bound by the settlement 22 because they were not identified as parties to the agreement. (Monster Energy Co. v. Schechter, 23 supra. 7 Cal.5th 781 at 794). Mr. Promm left the door open for these non-settling defendants to 24 claim at some future time that they are not parties to the Agreement. 25 B. The Agreement Still Lacks Signatures 26 All parties must sign, not just the parties against whom the agreement is sought to be 27 enforced. (See, Sully-Miller Contracting Co., supra. 103 Cal.App.4th at 37 ["A written 28 settlement agreement is not enforceable under section 664.6 unless it is signed by all of the PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 5 1 parties to the agreement, not merely the parties against whom the agreement is sought to be 2 enforced."]). 3 The following defendants did not sign the Agreement: 4 1). Defendant Sunderland/McCutchan, Inc. (and a Moving Party here) did not sign. 5 2). Defendant Sunderland/McCutchan, LLC did not sign. 6 3). Defendant Robert Sunderland (and Moving Party) did not sign. (See below in ¶C). 7 4). Defendant Edward Albini did not sign. 8 5). Defendant Verna Fung did not sign. 9 6). Defendant Evalina Peritore did not sign. 10 7). Defendant Mark D. Schulte did not sign. 11 8). Defendant Richard Seversen did not sign. 12 9). Defendant Walter Spiridonoff did not sign. 13 C. Robert Sunderland's Electronic Signature Is Invalid 14 Robert Sunderland did not sign the Agreement. Someone typed Robert Sunderland's 15 name on the Agreement. (See, Abel Decl. ¶¶7, 8, 9; also see RFJN Ex. A, B). A printed 16 signature is not a valid signature. (See, J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 17 Cal.App.4th 974, 978 ["Fair's printed name on the document was not a signature."]. 18 Pursuant to the Uniform Electronic Transactions Act ("UETA") (see, Civ.Code §1633.1 19 et seq.), electronic signatures are not valid unless they first satisfy specific conditions: 20 • There must be an agreement between the parties to execute the agreement by electronic 21 means, (Civ.Code §1633.5(b)); 22 • The signature must be associated with the record, (Civ.Code §1633.12(a); 23 • The signing person must have had the intent to sign, (Civ.Code §1633.2(h); 24 • The transaction must be linked to a method of confirming the signer's identity, 25 (Civ.Code §1633.9(a); 26 The party seeking enforcement must be able to prove that the e-signature was the act of 27 the signatory in order to enforce it. Robert Sunderland could later say that he never signed it, or 28 changed his mind, which is exactly what happened in J.B.B. Investment Partners, Ltd. v. Fair. PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 6 1 2. Moving Parties Have Not Paid the Judgments 2 Civil Code §1542 refers to “claims.” “Claims” are not judgments. Judgments are valid 3 orders signed by a judge. The judgments herein are not “claims.” Nor could a judgment be 4 construed to be a “cost;” e.g. there is no line on a memorandum of costs to list a judgment. 5 Enforcement of a judgment is not an “abuse of process” and is not “sanctionable.” (See, 6 Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [“levying on the judgment debtor's property is 7 protected by the litigation privilege of Civil Code section 47”]. 8 The Agreement only talks about claims, not judgments. Mr. Promm drafted the 9 Agreement. Any ambiguity in the Agreement shall be construed against Mr. Promm as the 10 drafting party. (See, Civ.Code §1654; Sandquist v. Lebo Automotive (2016) 1 Cal.5th 233, 247- 11 248 [“Ambiguity in written agreements are to be construed against their drafters.”). 12 The Court confirmed in the Minute Order on November 22, 2023 that any dismissals 13 should be filed after the judgment is received by Plaintiff. (See, RFJN Ex. F). No objection was 14 made by Mr. Promm at the November 22, 2023 hearing to that ruling. 15 Plaintiff has not received payment on these judgments: 16 A. The 2019 Judgment 17 On July 23, 2019, a judgment was entered against Sunderland/McCutchan, LLP ("SMP") 18 on its cross-complaint in this action. (See, RFJN Ex. C). The judgment, signed by Judge Jennifer 19 Dollard, states that "Cross-defendant Richard Abel is the prevailing party on the Cross- 20 complaint." (RFJN Ex. C at 2:7-8). On August 30, 2019, upon receiving the signed judgment 21 in the mail, Plaintiff filed the Notice of Entry of Judgment and a memorandum of costs. (Id.) 22 No motion to tax costs was filed by SMP. 23 SMP's cross-complaint was completely adjudicated in 2019, and there was no appeal. 24 It is a final judgment. A cross-complaint is treated as an independent action. It is not dependent 25 on plaintiff's action. The issues raised by the cross-complaint are treated as "completely 26 severable" from the issues raised by the original complaint and answer. (See, Bertero v. National 27 Gen. Corp. (1974) 13 Cal. 3d 43, 51-52; Ohio Cas. Ins. Group v. Sup. Court (Butte Valley 28 School Dist.) (1994) 30 Cal.App. 4th 444, 448-449). Case and statutory law recognize that a PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 7 1 cross-complaint creates an action distinct and separate from an initial pleading. (Bertero, supra 2 at 51). The judgment on the cross-complaint is not part of the settlement agreement. 3 Here, SMP lost on its cross-complaint in 2019, and a judgment was entered against it. 4 This judgment should have been paid by Mccutchan long ago. Mr. Promm promised Plaintiff 5 that the 2019 Judgment would be paid at the conclusion of this action. Plaintiff waited a 6 reasonable amount of time to receive payment on the 2019 judgment, but has still not been paid. 7 (Abel Decl. ¶11). 8 B. The 2022 Judgment 9 On May 27, 2022, defendant Sunderland/McCutchan, Inc. ("SMI") was ordered to pay 10 Plaintiff $73.68 within 20 days of the order. (See, RFJN, Ex. D, Order entered 5/27/22 at p. 8:8). 11 A monetary sanction is immediately enforceable as a money judgment. (Newland v. Superior 12 Court (1995) 40 Cal.App. 608, 610). 13 SMI did not pay Plaintiff as ordered by the Court. (Abel Decl. ¶12). Instead, Edward 14 Mccutchan dissolved SMI to avoid paying. Four months later in 2022 the Court found that SMI 15 is dissolved. (See, Order entered September 19, 2022 at p.10:12 : "SMI has presented evidence 16 that it is now dissolved per the California Secretary of State" and at p.11:9-10: "SMI appears to 17 have dissolved, meaning there are no assets for Plaintiff to collect." 18 That maneuver by Mccutchan prevented Plaintiff from enforcing the judgment in 2022. 19 A dissolved corporation is required to make provision to pay its debts before it can be dissolved. 20 (See Corp. Code §1905). That did not happen here, and Plaintiff had no way to enforce it. SMI's 21 failure to pay the sanctions award in 2022 demonstrates Edward Mccutchan's contempt of the 22 Court's 5/27/22 order. (RFJN, Ex. D, Order entered 5/27/22 at p. 8:8). 23 SMI is not a party to the Agreement. (Abel Decl. Ex. B). This 2022 sanctions award 24 (judgment) is not mentioned in the Agreement. (Id.) The amount due on the 2022 judgment, 25 including statutory interest at 10%, is now $88.35 as of May 22, 2024. (Abel Decl. ¶13). 26 Pursuant to Newland v. Superior Court, this sanctions award is a judgment. In any case, the 27 Court confirmed in the Minute Order on November 22, 2023 that no dismissals should be filed 28 until the judgment is received by Plaintiff. (See, RFJN, Ex. F). PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 8 1 3. The Sanctions Request Must Be Denied 2 As a threshold issue, Moving Parties' request for sanctions pursuant to CCP §128.5 fails, 3 because their motion does not comply with the statutory requirements. 4 First, a motion for sanctions under this section shall be made separately from other 5 motions or requests, and shall describe in detail the specific alleged action made in bad faith or 6 frivolous. (See, Code of Civ.Proc. §128.5(f)(1)(A); Changsha Metro Group Co. Ltd. v. Xufeng 7 (2020) 57 Cal.App. 5th 1, 8). Here, Moving Parties combined their request for sanctions 8 pursuant to CCP §128.5 with their motion to dismiss. This is not allowed by the statute. 9 Second, the moving party is required to first serve their proposed sanctions motion to the 10 other party, and give a 21-day period (the “safe harbor”) whereby the problem can be corrected. 11 Moving Parties failed to do that. A judge must deny a motion for sanctions under CCP §128.5 12 that does not comply with the safe harbor provision. (See, CPF Vaseo Assoc. LLC v. Gray 13 (2018) 29 Cal.App. 5Th 997, 1003-1005; also Nutrition Distribution, LLC v. Southern SARMS, 14 Inc. (2018) 20 Cal.App. 5th 117, 120). 15 Third, section 128.5 requires more than a party just acting with “no good reason.” It 16 requires a showing of subjective bad faith. (See, Levy v. Blum (2001) 92 Cal.App. 4th, 625, 17 635.) Here, Mr. Promm is the one who acted in bad faith. The Court informed Mr. Promm in 18 the tentative ruling on November 22, 2023 that all defendants must be parties to the Agreement. 19 Promm already knows that. Mr. Promm's goal is to keep his clients out of the Agreement, so 20 they can receive the benefits of settlement without incurring any obligations of the Agreement. 21 That is not what Plaintiff agreed to at the Settlement Conference on June 6, 2023. 22 4. The Settlement Offer Was Rescinded on March 1, 2024 23 On February 23, 2024, Plaintiff advised Mr. Promm that unless there was full compliance 24 with the terms and conditions of the settlement by March 1, 2024, then Plaintiff would rescind 25 the settlement offer to those non-settling defendants. The non-settling defendants are those that 26 are not identified in the Agreement (See ¶ 4:23-5:11, supra), and those who refused to sign the 27 Agreement (¶ 6:4-12, supra). None of these non-settling defendants attended on June 6, 2023. 28 // PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS AND SANCTIONS 9