B B et al vs Tracie Simolon et al
B B et al vs Tracie Simolon et al
Case Number
23CV03752
Case Type
Hearing Date / Time
Fri, 10/03/2025 - 10:00
Nature of Proceedings
OSC Dismissal; Motion to Enforce; Minor's Compromise
Tentative Ruling
For the reasons set forth below:
1. Plaintiffs’ motion to enforce settlement pursuant to Code of Civil Procedure section 664.6 is denied, without prejudice, as premature.
2. The petition for approval of compromise of claim of minor is granted.
3. The order to show cause re: dismissal is continued to December 5, 2025. No appearance is required if a dismissal has been filed and served.
Background:
On August 30, 2023, plaintiffs B.B. (B.B.), a minor by and through her guardian ad litem Julia E. Briscoe (Briscoe) and Briscoe, individually (collectively, plaintiffs), filed a complaint against defendants Tracy Simolon (Simolon) and the Archdiocese of Los Angeles (the Archdiocese), alleging five causes of action: (1) breach of contract; (2) intentional infliction of emotional distress (against Simolon only); (3) negligence; (4) negligent infliction of emotional distress; and (5) premises liability (against the Archdiocese only).
On December 27, 2023, defendants filed a demurrer to each cause of action alleged in the complaint on the grounds that plaintiffs failed to state facts sufficient to constitute a cause of action. Defendants also filed a motion to strike plaintiffs’ claim for punitive damages.
On March 15, 2024, the court sustained defendants’ demurrer in part with leave to amend as to the second, third, fourth, and fifth causes of action. The demurrer was overruled as to the first cause of action. The motion to strike plaintiffs’ claim for punitive damages was granted without leave to amend but without prejudice as to the Archdiocese, and with leave to amend as to Simolon.
Plaintiffs filed their first amended complaint (FAC) on March 25, 2024, asserting causes of action for: (1) Breach of Contract as against both defendants; (2) Intentional Infliction of Emotional Distress as against both defendants; (3) Negligence as against both defendants; and (4) Premises Liability as against the Archdiocese. The FAC, while reorganized, alleged facts identical to the allegations of the original complaint.
On April 25, 2024, defendants demurred to the second, third, and fourth causes of action of the FAC and moved to strike punitive damages allegations from the FAC.
On July 19, 2024, the court sustained the demurrer to the second cause of action for emotional distress without leave to amend, overruled the demurrer to the third cause of action for negligence as to B.B., sustained the demurrer to the third cause of action for negligence as to Briscoe with leave to amend, and sustained the demurrer to the fourth cause of action for premises liability without leave to amend. The motion to strike was taken off-calendar as moot.
On July 31, 2024, plaintiffs filed their operative second amended complaint (SAC) against the Archdiocese and Simolon containing causes of action for: (1) Breach of Contract, and (2) Negligence. The SAC contains 228 paragraphs, with lengthy subparts, along with over 100 pages of exhibits, and, while somewhat better organized than the original complaint and the FAC, the SAC essentially sets forth the same factual allegations.
To summarize the SAC:
Defendant Simolon is and was an “employee, volunteer, representative, or agent of” defendant the Archdiocese. (SAC, ¶ 3.)
Briscoe entered into a contract for enrolment of B.B. in a school owned and operated by the Archdiocese. (SAC, ¶ 11.)
Defendants’ staff “forced Plaintiff B.B. to take home a school-owned technological device, forced Plaintiff B.B. to sign a document before seeing the device that purported not only to impose liability on Plaintiff B.B. but also to permit Defendants to impose punishment on Plaintiff B.B. that Defendants were not entitled to impose under their contract with Plaintiff Briscoe, distributed an apparently damaged device to Plaintiff B.B., and attempted to establish grounds on which to impose such punishment on Plaintiff B.B.” (SAC, ¶ 15.)
Simolon and other staff evaded communication with Briscoe and when Briscoe asked for evidence of the device’s pre-distribution condition, defendants’ staff did not send it. (SAC, ¶ 16.) The device was never assigned to B.B. (SAC, ¶ 17.) If the device was assigned to anyone, it was assigned to Briscoe. (Ibid.)
During a phone call, despite Briscoe’s request not to have the conversation by phone, Simolon “embark[ed] on a rant about Plaintiff Briscoe’s email to the P.E. teacher.” (SAC, ¶ 18.) When Briscoe disconnected the call, Simolon called back and announced her termination of B.B.’s enrollment, which she had no independent authority to do. (Ibid.)
Although Briscoe was not allowed to gain access to the school without defendants’ permission, Briscoe picked up B.B. from the school. (SAC, ¶¶ 19, 20.)
Defendants kept plaintiffs’ enrollment payments, did not provide B.B.’s academic record, destroyed some of B.B.’s online accounts and work, and Simolon falsified B.B.’s attendance record. (SAC, ¶ 23.)
On February 28, 2020, Briscoe made a payment toward the 2020-2021 school registration fee, which was accepted by defendants as payment for the 2020-2021 school year. (SAC, ¶ 85.)
B.B. was assigned an iPad that was not new, and, on August 27, 2021, B.B. disclosed to Briscoe that there appeared to be a scratch or crack in the iPad’s screen or screen protector, but the device was operational. (SAC, ¶ 110.)
In an attempt to understand what B.B. had signed in connection with obtaining the iPad, and B.B.’s fear of punishment for the damage, on August 27, 2021, Briscoe emailed a school staff member to request a copy of the document. (SAC, ¶ 114.) The staff member responded three days later and did not include a copy or photograph of the document that B.B. had signed. (SAC, ¶ 115.)
“In sum, MCS [Our Lady of Mount Carmel School] staff had misrepresented to Plaintiff B.B., whether through the faux contract and/or other means, that Defendants had imposed on Plaintiff B.B. absolute liability for the school iPad while reserving to themselves discretion to take it, break it, and charge and punish her for
the damage—and, if she did not disclose damage [for which they would not be responsible] to MCS staff, to punish her for the nondisclosure as well. And then, it appeared, they had distributed to her a damaged iPad.” (SAC, ¶ 123.)
When B.B. showed the iPad to a school staff member on September 1, 2021, the staff member, with no other adults present, took the iPad and, in attempting to remove the case, caused the screen to crack, thereby eliminating evidence of prior damage or the lack thereof. (SAC, ¶ 126.) The staff member confiscated the iPad and interrogated B.B. about how the iPad was damaged, and refused to accept B.B. explanation that she did not know how any previous damage had occurred. (Ibid.)
On September 1, 2021, Briscoe sent an email to the staff member, without name-calling, profanity, or other discourtesy, chastising the staff member for the interrogation, and reminding the staff member that communication about the iPad should continue only with Briscoe. (SAC, ¶ 134.) The staff member never responded. (SAC, ¶ 135.) By a separate email, Briscoe requested an update and again requested a copy of the document that B.B. had signed from Simolon. (SAC, ¶ 136.) Simolon replied that she would only continue the discussion by phone. (SAC, ¶ 137.) Briscoe replied that the conversation would have to continue by email. (SAC, ¶ 139.)
Despite Briscoe’s insistence that the conversation continue by email, Simolon called Briscoe on September 2, 2021, and admitted at the outset of the call that B.B. had not done anything wrong or violated any rule and would not be disciplined. (SAC, ¶¶ 140, 141.) Simolon stated that, while she could have charged plaintiffs for the damage to the iPad, any repair or replacement would be covered by insurance. (SAC, ¶ 142.) Simolon then “began to rant” about the tone of Briscoe’s email to the staff member. (SAC, ¶ 143.) When Simolon “drowned out” Briscoe’s three refusals to continue with the phone call, Briscoe disconnected the call. (SAC, ¶ 146.)
Within one minute, Simolon called Briscoe back and announced, in a 29-second voicemail message, her personal summary termination of B.B.’ enrollment. (SAC, ¶ 148.) Briscoe immediately picked B.B. up from the school. (SAC, ¶ 155.)
Simolon did not give notice to B.B., who was asking students and teachers if they knew why she was leaving early. (SAC, ¶ 161.) B.B. learned that students who involuntarily left the school were publicly shamed by a schoolwide announcement of the expulsion. (SAC, ¶ 162.)
On May 22, 2025, the parties participated in mediation that resulted in a full agreement.
On June 6, 2025, after being informed that a settlement has been reached, the court set an order to show cause re: dismissal for August 1, 2025.
On June 23, 2025, plaintiffs filed a motion to enforce settlement agreement pursuant to Code of Civil Procedure section 664.6, as well as a petition for approval of compromise of claim of B.B.
On August 1, 2025, the hearing on the order to show cause re: dismissal was continued to the same hearing date as the motion to enforce settlement agreement and petition for approval of compromise of claim of B.B.
Defendants filed a response to the motion to enforce settlement agreement, arguing that the motion is premature. Also, by way of that response, defendants express their support for the granting of the minor’s compromise.
Analysis:
Motion to Enforce Settlement
Code of Civil Procedure section 664.6 provides:
“(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
“(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:
“(1) The party.
“(2) An attorney who represents the party.
“(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf.
“(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.
“(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party’s express authorization shall, absent good cause, be subject to professional discipline.”
“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement.” (Hines v. Lukes (2008) Cal.App.4th 1174, 1182.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Id.)
In support of the motion, plaintiffs have provided a copy of the Stipulation for Settlement (“agreement”). The agreement pertains to both Briscoe in her individual capacity as well as in her capacity as guardian ad litem for B.B. Pursuant to the agreement: “This Settlement is conditioned upon and subject to Court approval of the minor’s compromise.” (Agreement, ¶ 8.)
“The guardian or conservator of the estate or guardian ad litem so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise.” (Code Civ. Proc., § 372, subd. (a)(3).)
“[J]ust as a minor lacks capacity to enter into a contract, the guardian ad litem lacks contractual capacity to settle litigation without endorsement of the court. As with any other contract where one party lacks capacity, or a necessary contractual formality has been ignored, the contract is voidable until the defect is remedied. [Citation.]” (Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1605.)
“A guardian has no authority to enter into an agreement compromising the claims of his charge without the sanction of the court that appointed the guardian. [Citations.] The court’s order approving the compromise confers on the guardian ad litem the legal power to enforce that agreement. [Citation.] This is so because the court effectively exercises “ ‘supervision over the rights of the minor or the acts of the guardian ad litem.’ ” [Citation.] Therefore, without trial court approval of the proposed compromise of the ward’s claim, the settlement cannot be valid.[Citation.]” (Scruton v. Korean Air Lines Co., supra, 39 Cal.App.4th at pp. 1605–1606.)
Thus, by the plain terms of the agreement, in addition to well-settled legal principles, there was no valid settlement agreement to enforce at the time of the filing of the motion to enforce. A such the motion is premature and will be denied without prejudice.
Minor’s Compromise
“The requirements that a guardian ad litem be appointed and that the proposed compromise of a minor’s claim be approved by the trial court exist to protect the best interests of the minor.” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1338.)
“While the guardian ad litem has the power to assent to procedural steps that will facilitate a determination of the ward’s case [citation], the guardian ad litem’s authority is that of “ ‘ “an agent with limited powers.” ’ [Citation.]” [Citation.] For example, when a guardian ad litem believes that settling a case is in the ward’s best interests, that decision requires court approval. (Code Civ. Proc., 372.) The court has a duty to ensure that the ward’s rights are protected by the guardian ad litem.” (McClintock v. West (2013) 219 Cal.App.4th 540, 549.)
“A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor’s disputed claim; a compromise or settlement of a pending action or proceeding to which a minor or person with a disability is a party; or the disposition of the proceeds of a judgment for a minor or person with a disability under Probate Code sections 3500 and 3600-3613 or Code of Civil Procedure section 372 must be verified by the petitioner and must contain a full disclosure of all information that has any bearing on the reasonableness of the compromise, covenant, settlement, or disposition. Except as provided in rule 7.950.5, the petition must be submitted on a completed Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability (form MC-350).” (Cal. Rules of Court, rule 7.950.)
Briscoe has submitted to following information, on the required judicial council form MC-350 (Petition), signed by Briscoe under penalty of perjury:
B.B. is 15 years old with a date of birth of April 7, 2010. (Petition, ¶ 2.)
The incident that is the subject of this action occurred on September 2, 2021, and involves the allegations that are set forth in the SAC. (Petition, ¶¶ 4, 5.)
B.B. received no care or medical treatment as the result of the incident. (Petition, ¶ 7.) B.B. continues to suffer from emotional distress, damage to reputation, damage to educational opportunities, and damage to future earning potential. (Petition, ¶ 8.)
The terms of the settlement are that defendants will pay $25,000.00 in settlement of B.B.’s claims, and $9,000.00 in settlement of Briscoe’s claims. (Petition, ¶¶ 10, 11.)
B.B. was not represented by an attorney and there are no deductions of any kind from the settlement amount of $25,000.00.
B.B. through her guardian ad litem, requests that the $25,000.00 settlement amount be deposited in insured accounts with Montecito Bank and Trust, Santa Barbara, with the following terms: No withdrawal of principal or interest may be made from the blocked account or accounts without a written order under this case name and number signed by a judicial officer and file-stamped by this court until the minor reaches 18 years of age. When the minor reaches 18 years of age, the depository, without further order of this court, is authorized and directed to pay by check or draft directly to the former minor, on proper demand, all funds, including interest, deposited under this order. The money on deposit is not subject to escheat. (Petitions, ¶ 18, subd. (b) & Proposed Order, ¶ 8, subd. (b)(2).)
The court has reviewed the petition, along with the attachments, and finds that the settlement is fair, reasonable, and in the best interests of B.B. The court intends on executing the proposed orders submitted by Briscoe. The hearing on the order to show cause re: dismissal will be continued.