United States District Court, N.D. California
January 23, 2004.
ARBERZINE FISHER, Plaintiff,
STANDARD INSURANCE COMPANY, Defendant
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is defendant Standard Insurance Company's
("Standard's) motion for summary judgment, filed December 23, 2003.
Pursuant to Civil Local Rule 7-3(a), plaintiff Arberzine Fisher
("Fisher"), who is appearing pro se, was required to file an opposition
no later than January 9, 2004, but has not opposed the motion. Having
considered the papers filed in support of the motion, the Court finds the
matter appropriate for decision without oral argument, see Civ.
L.R. 7-3(a), and hereby VACATES the January 30, 2004 hearing on the
motion. For the reasons set forth below, the motion is GRANTED.
Fisher alleges that on January 29, 2002, she and Standard agreed that
she would be paid a lump-sum settlement for future long-term disability
coverage, in lieu of monthly payments over the next twenty years.
(See Compl. at 3.) She now alleges that Standard
"showed bad faith and unfair insurance practices by pressuring
plaintiff into settlement, knowing that plaintiff was not informed of the
actual value of her claim over 20 yrs." (See id.) Fisher
contends that the settlement was inadequate and insufficient to
reasonably cover her medical bills, prescriptions, and basic living
needs. (See id.) She also alleges that she "was under
medication and pain at time of signing and defendants took advantage of
her condition." (See id.) Fisher seeks punitive and
compensatory damages. (See id.) Fisher has not sworn to the
truth of her allegations under penalty of perjury and has not submitted
any evidence in support of her contentions.
According to the evidence submitted by Standard in support of its
motion for summary judgment, Fisher filed a lawsuit in this Court against
Standard, on May 9, 2001, seeking disability benefits under a long term
disability benefits plan, pursuant to the Employee Retirement Income
Security Act of 1974 ("ERISA"). (See Rapoport Decl., Ex. 1
(complaint in Fisher v. Standard Ins. Co., C-01-1809 EDL). The
parties participated in two Early Neutral Evaluation ("ENE") sessions
with court-appointed evaluator, Michael Loeb ("Loeb"), which took place
on December 18, 2001 and January 29, 2002. (See Rapoport Decl.
¶ 2.) Fisher attended each ENE session and was represented by her
counsel, James Mellen, at each session. (See id. ¶ 3.) At
the second ENE session, on January 29, 2002, the parties entered into a
settlement agreement. (See id. ¶ 5.)
Standard's Assistant Counsel and Director of Litigation, Simeon D.
Rapoport ("Rapoport"), who attended the ENE sessions, attests that:
Standard had no direct contact with Fisher
regarding the terms of the Settlement Agreement
except on the limited occasions when all parties
and counsel met with the ENE. All negotiations
with regard to the Settlement Agreement occurred
between Standard's in-house counsel, Standard's
outside counsel, Fisher's attorney Mr. Mellen and
the ENE Mr. Loeb. At no time did Standard, or any
representative of Standard, state or indicate to
Fisher that she must settle her case, that there
could be any repercussions or that she did not
have time to consult with an attorney or financial
consultant before signing the Settlement
Agreement. In fact, the Settlement Agreement was
reached five months before the scheduled trial
date of June 7, 2002, leaving Fisher plenty of
time to consult with any advisers of her choice.
(Id. ¶ 8.) Rapoport also attests: "I had an
opportunity to observe Fisher at both early neutral evaluation meetings
and at no time during either meeting did Fisher appear to me
to be incompetent or unable to contract." (Id. ¶ 9.)
In addition, "none of the licensed attorneys participating in the early
neutral evaluation meetings, including the ENE, relayed any concerns
about Fisher's competency or ability to contract." (See id.
In the January 29, 2002 settlement agreement, which both Fisher and her
counsel signed, Fisher agreed to release and forever discharge Standard
from any claims "whether known or unknown, suspected or unsuspected,
claimed or unclaimed, direct or indirect, asserted or unasserted, that
she (i) has had in the past, or now has, or may have in the future
against Standard based in any way upon Group Policy No. 605209 ("the
Policy"), (ii) has had in the past, or now has, against Standard based in
any way upon any other insurance policy issued or administered by
Standard covering or insuring Fisher either as a named or additional
insured, or, (iii) has had in the past, or now has, against Standard
based on any other act or omission from the beginning of time to the date
of execution of this Release." (See Rapoport Decl., ¶ 6,
and Ex. A, ¶ 1.) The only exclusion was for Workers' Compensation
coverage or benefits. (See id.) Fisher also specifically
Fisher understands and expressly acknowledges that
it is possible that unknown losses or claims exist
or that present losses may have been
underestimated in amount or severity. Fisher
warrants that she explicitly took this into
account in determining the amount of consideration
to be paid for the giving of this Release, and a
portion of said consideration, having been
bargained for between the parties with the
knowledge of the possibility of such unknown
claims, was given in exchange for a full accord,
satisfaction and discharge of all such claims.
Consequently, Fisher expressly waives all rights
under California Civil Code section 1542[.]
(See id. ¶ 4.) Fisher also agreed that "she has
conducted herself freely and voluntarily with respect to this Release and
all matters covered by it and that she personally has reviewed and
understands this Release," and that she had been fully advised by her
attorney about her rights and obligations under the agreement. (See
id. ¶ 11.) Finally, Fisher agreed that she entered into the
agreement "freely and voluntarily, only after review of the Release, and
without any duress from any person, corporate or natural." (See
id. ¶ 17.)
In exchange for these agreements, Standard agreed to pay Fisher
$80,000. (See Id. ¶ 16.) Standard issued a check to Fisher
in the amount of $80,000 seven days after she signed the settlement
agreement. (See Rapoport Decl. ¶ 12.)
Fisher filed the instant complaint on January 30, 2003, approximately
one year after signing the January 29, 2002 settlement agreement.
According to Rapoport, "[b]efore she filed the lawsuit, Fisher had never
notified Standard of her dissatisfaction with the settlement amount and
Fisher has continued to retain the settlement benefits[.]" (See
id. ¶ 15.)
Rule 56(c) of the Federal Rule of Civil Procedure provides that summary
judgment "shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." See Fed.R.Civ.P. 56(c). Material facts are
those that may affect the outcome of the case. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is "genuine" if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving party. See
id. The Court may not weigh the evidence. See id. at 255.
Rather, the nonmoving party's evidence must be believed and "all
justifiable inferences must be drawn in [the nonmovant's] favor."
See United Steelworkers of Am. v. Phelps Dodge Corp.,
865 F.2d 1539, 1542 (9th Cir. 1989) (en bane) (citing Liberty Lobby, 477
U.S. at 255).
The moving party bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions
of the pleadings, depositions, interrogatory answers, admissions and
affidavits, if any, that it believes demonstrate the absence of a genuine
issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden
of proof at trial, the moving party's burden is discharged when it shows
the court that there is an absence of evidence to support the nonmoving
party's case. See id. at 325.
A party opposing a property supported motion for summary judgment "may
not rest upon the mere allegations or denials of [that] party's pleading,
but . . . must set forth specific facts showing that there is a genuine
issue for trial." See Fed.R.Civ.P. 56(e); see also
Liberty Lobby, 477 U.S. at 250. The opposing party need
not show that the issue will be resolved conclusively in its favor.
See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is
submission of sufficient evidence to create a material factual dispute,
thereby requiring a jury or judge to resolve the parties' differing
versions of the truth at trial. See id.
Defendants move for summary judgment on the ground that Fisher has no
evidence that would justify setting aside the parties' settlement
agreement. As there is no argument that any other law should apply, the
Court will apply California contract law to determine the enforceability
of the settlement agreement. See Olam v. Congress Mortgage Co.,
68 F. Supp.2d 1110, 1119 (N.D. Cal. 1999). The California Supreme Court
has held that a "valid compromise agreement has many attributes of a
judgment, and in the absence of a showing of fraud or undue influence is
decisive of the rights of the parties thereto and operates as a bar to
the reopening of the original controversy." See Folsom v. Butte
County Association of Governments, 32 Cal.3d 668, 677 (1982)
(quoting Shriver v. Kuchel, 113 Cal.App.2d 421, 425 (1952)).
Fisher arguably alleges fraud or undue influence by contending, in her
complaint, that Standard acted in bad faith "by pressuring plaintiff into
settlement, knowing that plaintiff was not informed of the actual value
of her claim over 20 yrs." (See Compl. at 3.) In the settlement
agreement, however, Fisher expressly agreed that she was aware that "it
is possible that unknown losses or claims exist or that present losses
may have been underestimated in amount or severity" and that she took
this into account in deciding the appropriate amount of the settlement.
(See Rapoport Decl. ¶ 6 and Ex. A ¶ 4.) Fisher
expressly waived the protections of California Civil Code § 1542,
which provides: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor." (See id.) Fisher also
agreed that she entered into the agreement "freely and voluntarily, only
after review of the Release, and without any duress from any person,
corporate or natural." (See id. ¶ 17.) It is undisputed
that Fisher was represented by counsel during the settlement
negotiations. (See Rapoport Decl. ¶¶ 3, 7.) In addition
Fisher represented in the settlement agreement that "she has conducted
herself freely and voluntarily with respect to this Release and all
matters covered by it and that she personally has reviewed and
understands this Release," and that she had been fully advised by her
attorney about her rights and obligations under the agreement.
(See Rapoport Decl. ¶ 6, and Ex. A, ¶ 11.) Finally,
Standard's counsel attests that Standard had no direct contact with
Fisher during the settlement negotiations other than when all parties and
counsel met with the ENE evaluator, and that at no time did Standard
pressure Fisher into settling her case. (See Rapoport Decl.
¶ 8.) There is no evidence that Standard pressured Fisher into
settling the case, and thus no evidence of fraud or undue influence.
Fisher also appears to allege that she lacked the capacity to enter
into the settlement agreement by alleging in her complaint that she "was
under medication and pain at time of signing and defendants' took
advantage of her condition." (See Compl. ¶ 3.) There is no
evidence before the Court that Fisher was taking any medication at the
time the settlement agreement was signed. Standard's counsel attests that
he observed Fisher during the ENE sessions and that "at no time during
either meeting did Fisher appear . . . to be incompetent or unable to
contract." (See Rapoport Decl. ¶ 9.) He also attests that
"none of the other licensed attorneys participating in the early neutral
evaluation meetings, including the ENE, relayed any concerns about
Fisher's competency or ability to contract." (See id.)
Accordingly, there is no dispute of fact as to Fisher's competency to
enter into the settlement agreement.
Where there is no dispute of fact as to the existence or terms of a
settlement agreement, the Court may summarily enforce it. See Callie
v. Near, 829 F.2d 888, 890 (9th Cir. 1987). As Fisher has not shown
any basis for setting aside the settlement agreement, Standard's motion
for summary judgment will be granted.
For the reasons stated above, defendant's motion for summary judgment
GRANTED. The Clerk shall terminate all pending motions and close
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
 Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has rendered its
[X] Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a decision has
IT IS ORDERED AND ADJUDGED defendant's motion for summary judgment is
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