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Kirby v. Southern California Edison Co.2/29/2000
APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Reversed with directions.
A plaintiff in a wrongful death action appeals from an order dismissing her action pursuant to Code of Civil Procedure section 664.6. Finding that the summary procedures of section 664.6 are inapplicable in these circumstances, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In May of 1997, Patricia Kirby filed a complaint against Southern California Edison Company, alleging that as the result of Edison's negligent design, maintenance or operation of a power line, her son, Carl Lee Jones, was electrocuted. She prayed for general and special damages, including medical and burial expenses.
Edison generally denied the allegations of Kirby's complaint. It also alleged as an affirmative defense that Kirby had entered into a binding settlement of her claim prior to filing suit.
In August of 1998, Edison moved pursuant to section 664.6 for an order enforcing its alleged settlement agreement with Kirby. Edison's motion was supported by a declaration from an Edison claim representative, stating that Kirby's son had been electrocuted by a downed high-voltage wire during a wind storm on the evening of December 14, 1996, and that in exchange for a $2,500 check Kirby had executed a general release dated December 16, 1996. Edison asked that the trial court enforce the release by dismissing Kirby's complaint.
In her opposition to the motion, Kirby offered evidence, largely from the depositions of the Edison claims representatives, supporting the following facts: The fatal accident occurred between 8:00 p.m. and 9:00 p.m. on December 14. Two Edison claim representatives visited Kirby the very next morning to investigate the incident and take a written statement from her. Kirby was emotionally distraught at the loss of her son and told Edison's representatives that she could not afford to bury him because she had buried another family member a few months earlier.
They returned to Kirby's house the following day, December 16. She repeated that she did not have sufficient funds to bury her son. Standing in her front yard, Edison's representatives presented her with a check for $2,500 to assist in the burial of her son, as a gesture of goodwill. They also told her that to obtain the money she would have to sign the release, which she did. However, the purpose of presenting the check was not to secure a release, but to help with the financial burden of the funeral.
At the time the claims representatives presented the check to Kirby, they had completed their investigation. They had determined that a conductor had broken due to high winds, that a power line had come down, and that for some unknown reason a relay or circuit breaker that would have shut off the current to that downed line did not function. Nevertheless, they told Kirby that Edison had not been negligent or otherwise responsible for the accident in any way.
After Kirby had consulted with an attorney, the check was returned to Edison.
The trial court granted the motion and dismissed the action. Kirby appeals.
contentions
On appeal, Kirby argues that the trial court erred because the release was obtained under circumstances suggesting fraud, coercion and overreaching rather than mature reflection and deliberate assent. She also argues that the settlement agreement is not supported by consideration. Edison disputes those contentions and argues that the dismissal should be affirmed.
On our own motion, we raised the issue of whether section 664.6 applied in this instance. Having invited br
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