Defendant?s Motion for Summary Judgment
Defendant DRAGOS GAVRILESCU moves for summary judgment as to the entire Original Complaint and all 5 causes of action alleged therein, which was filed on 4/04/16 by Plaintiff SURETEC INS. CO.
Defendant argues that he has a complete defense to the entire action against him because on 3/18/15, in a prior action in this court — Hardy & Harper Inc. v. Astra Builders Inc., et al. (2014-726136) — Suretec and other parties entered into a settlement agreement settling its claims against him and releasing him from all further liability.? (Sep. Statement at Fact 4; Gavrilescu Decl. at Ex. A.)
In Opposition, Plaintiff Suretec argues correctly that Gavrilescu has failed to make a prima facie showing that he has a complete defense because the settlement was signed by him only in his capacity as President of Astra Builders Inc.? It was not signed by him in his individual capacity. So there is no prima facie showing that the settlement agreement and release was intended to insulate him personally from any liability arising from the prior action.
In Reply, Defendant Gavrilescu argues that he is still entitled to enforce the settlement agreement because he is an unnamed third-party beneficiary of the settlement agreement.? (Brinton v. Bankers Pension Services (1999) 76 Cal.App.4th 550, 559.)
Defendant Gavrilescu also cites language from the settlement agreement, claiming that it expressly releases all officer of Astra Builders Inc., including him, from liability.
?B. Mutual Release?
?Except for the obligations and rights conferred by this Agreement, the Parties to this Agreement?
?on behalf of themselves, their respective attorneys, officers, agents, partners, directors, stockholders, servants, representatives, insurance carriers, employees, successors, heirs, executors, administrators, assigns, and affiliated corporations or companies, whether past, present or future,?
?hereby release and discharge each other, as well as, to the extent applicable, their respective attorneys, officers, agents, partners, directors, stockholders, servants, representatives, insurance carriers, sureties, employees, successors, heirs, executors, administrator, assigns, and affiliated corporations or companies, whether past, present or future?
?from and waive any and all claims, actions, debts, losses, attorney?s fees (whether incurred prior to or after the effective date of this Agreement), liens and indemnities of every kind and nature whatsoever, demands, costs, contracts, liabilities, obligations, rights, damages (whether general, special or punitive), expenses, compensation, actions and causes of action of every nature, whether in law or in equity, known or unknown, suspected or unsuspected,?
?which the Parties ever had, now have, or hereafter have, or may claim to have against each other of any nature, type or description, whether based on contract, tort, statute or other legal or equitable theory of recovery, arising out of, relating to, or connected with the Action, and excluding any claim for breach of the Agreement by such Party.?
However, Gavrilescu?s argument fails for four main reasons.
First, the express language of the settlement agreement defines the Parties as — Hardy & Harper Inc., Astra Builders Inc., and Suretec Ins. Co.? So Gavrilescu is not listed as Party to the agreement and did not sign it individually as a Party.
Second, to the extent that the mutual release excused officers from liability, by its plain language, it was only intended to? excuse officers of Astra Builders Inc. to the extent that their liability arose from claims by, among, and between the three named parties and only to the extent that the liability arose directly from those claims.
Third, Complaint in this case, filed on 4/4/16, raises a claim directly against Gavrilescu on the separate guarantee which he signed.? The complaint in the prior lawsuit, filed on 6/2/14 in Hardy & Harper Inc. v. Astra Builders (2014-726136), alleged a an entirely distinct legal claim based on the written contract which Hardy & Harper and Astra entered into on 7/10/13.? Neither the prior complaint nor the prior cross-complaint ever mentioned Gavrilescu?s guarantee, so that was not at issue and it was never the subject of the Parties? claims.? So it was not a subject of the settlement agreement.? Gavrilescu presents no evidence to support his argument that he was an intended third-party beneficiary of the Parties? settlement agreement, and the plain language of the settlement agreement contradicts his argument.
Furthermore, it would make no sense for Hardy & Harper to release such a claim since it was not a party to the guaranty and it would make no sense for Suretec to release such a claim since it was not the subject of the 2014 lawsuit.? Suretec does not appear to have filed any cross-complaint in the 2014 lawsuit, so the guarantee that Gavrilescu signed was never put at issue.? Finally, the cross-complaint filed by North Orange Community College District did not raise the issue of Gavrilescu?s guaranty.
Fourth, the facts and holding of Brinton are distinguishable from the facts of this case.? In Brinton, the Fourth District Court of Appeal, division 3, expressly noted that both lawsuits involved the same claim, sought recovery for the same injury, and the allegations of wrongful misrepresentations contained in the two pleadings were virtually identical, because they both alleged plaintiff suffered financial losses as a result of the officer?s alleged misrepresentations concerning the character of the investments.? So in both lawsuits, the company?s liability was based on respondeat superior and the company?s liability was various liability based on the officer?s alleged misconduct.
In this case, by way of contrast, the two lawsuits involve two completely separate written agreements and two entirely separate legal duties, one a contract with Astra and a separate and distinct contract with Gavrilescu.? In this case, Astra?s contractual liability was not vicarious liability based on Gavrilescu?s conduct.? Astra and Gavrilescu each owed a separate and independent contractual duty.? Gavrilescu?s separate contractual liability under the guaranty was never put at issue in the 2014 lawsuit or in the 2015 settlement agreement.
Accordingly, the motion for summary judgment is DENIED.
Plaintiff shall give notice of this ruling.