Filed 11/ 3 /21 ; C ertified for Publication 1 2/1/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CSAA INSURANCE EXCHANGE,

Plaintiff and Respondent,

v.

RAED HODROJ,

Defendant and Appellant. H046475 (Santa Cruz County Super. Ct. No. 17

- CV

- 00467)

CSAA Insurance Exchange sued Raed Hodroj for breaching an agreement to settle

his personal injury c laim . CSAA moved for summary judgment, arguing that the

undisputed facts establish both formati on of a contract and Hodroj’s breach. The trial

court granted the motion. Hodroj contends summary judgment was improper because

there is a triable issue regarding contract formation. For the reasons explained, we reject

that contention and will affirm t he judgment.

I. BACKGROUND

Hodroj was i njured in a car accident. He was a passenger in a Jeep Cherokee

involved in a single car collision. The driver was insured by CSAA. Hodroj retained an

attorney to represent him in obtaining compensation for his injuries.

Hodroj’s attorney wrote to CSAA of fering that Hodroj would settle his claim f or
bodily injuries in exchange for payment in the amount of the driver’s insurance policy

limits

, as long as certain conditions were fulfilled

. The conditions were that CSAA

provide a copy of the face page of the relevant insurance policy and a sworn decl aration2

confirming the policy limits; and deliver a check in the amount of the policy limits within

21 days of acceptance of the offer. The offer noted CSAA could condition its acceptance

on Hodroj signing a written release of all bodily injury claims aga inst CSAA’s insured.

The offer was also conditioned on written acceptance within 21 days.

Fifteen days later, CSAA sent written acceptance of the offer. It stated, “We

accept your demand for settlement of this claim. We are tendering our insured’s pol icy
limits of $100,000[.]” Enclosed were a sworn declaration attesting to the policy limits,
and a written release of all claims to be signed by Hodroj. A $100,000 check was sent

separately, with the proviso that it should not be presented until the rele ase was signed.

The next day, Hodroj reneged on the settlement

. A ccording to a letter from his

attorney to CSAA, the reason was “the release you required our client to sign introduces

significant and material new, additional and different terms and cond itions ” beyond the

offer of settlement. Among them was that t he release required Hodroj to release all his

claims, including for property damage, whereas the settlement offer contemplated only

claims for bodily injury. Hodroj later filed a lawsuit against the driver for the injuries he

sustained in the car accident and for property damage

. In response to Hodroj’s suit against its insured

, CSAA filed one of its own

— the

lawsuit underlying this appeal . CSAA sued Hodroj for breach of contract, allegi ng his

settlement offer and its written acceptance in response created a binding agreement to

settle the injury claims, which Hodroj breached by suing the driver

. Hodroj cross

complained for declaratory relief confirming no binding contract between him an d

CSAA.

Both parties moved for summary judgment on their respective causes of action.

The trial court granted CSAA’s motion and denied Hodroj’s, and entered judgment in

favor of CSAA. Hodroj filed a notice of appeal referencing a “ ‘[ j ] udgment after an order

granting a summary judgment motion, ’ ” which CSAA asserts is insufficient to preserve

Hodroj’s right to appeal the adverse ruling on his cross

- complaint. But we must broadly3

construe the notice of appeal. ( Russell v. Foglio (2008) 160 Cal.App. 4th 653, 661 [notice

of appeal must be liberally construed to protect the right of appeal whenever it is

“reasonably clear” what appellant is trying to appeal].) We find Hodroj’s notice adequate

to encompass both summary judgment orders.

II. DISCUSSION

W he re a plaintiff produces evidence to establish each element of a cause of action

, summary judgment is appropriate unless a triable issue is shown regarding any of those

elements. (Code of Civ. Proc. § 437c, subd. (p)(1).) A triable issue means a reasonable

trier of fact could find for the nonmoving party on th e element. ( Powell v. Kleinman

(2007) 151 Cal. App. 4th 112, 122.) Appellate review of a summary j udgment ruling is de

novo. ( Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268) . We

review the evidence the parties submitted with their moving papers in the light most

favorable to the nonmoving party . We then independently determine if the evidence

establishes either that the plaintiff is entitled to judgment as a matter of law

, or that there

is a dispute on a material point that requires a trial to resolve.

CSAA sued Hodroj for breach of contract. The elements of a breach of contra ct

claim are that a contract was formed; that the plaintiff did everything required by the

contract; that the defendant did not do something required by the contract; and that the

plaintiff was harmed as a result. ( Coles v. Glaser (2016) 2 Cal.App.5th 384 , 391.)

Hodroj contends there is a triable issue regarding the first element, formation.

The parties do not dispute the facts

. What t hey disagree about is the legal

significance of the facts , making this matter an appropriate candidate for summary

jud gment
, as demonstrated by the parties’ cross

- motions

. Hodroj contends CSAA’s

purported acceptance was actually a counteroffer he was free to reject because it included

a request that he sign a written release containing different terms than were in his

settlement offer . CSAA argues that a binding contract was formed when it accepted

Hodroj’s offer to settle his claim for the insurance policy limits and fulfilled all4

conditions stated in the offer , and the written release was simply an effort to reduce the

terms of the agreement to a formal writing.

A well

- established principle of contract law dictates the result here : when parties

agree on the ma terial terms of a contract with the intention to later reduce it to a formal

writing, failure to complete the formal writing does not negate the existence of the initial

contract. ( Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 ; Banner

En tertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 358 .) I f the parties do

not agree on the content of the formal writing ( for example because on e party wants to
include something not agreed on in the first place, as Hodroj says happened here )

, the

proposed writing is not a counteroffer ; rather, the initial agreement remains binding and a
rejected writing is a nullity . ( American Aeronautics Corp. v . Grand Central Aircraft Co.

(1957) 155 Cal.App.2d 69, 82 ; Khajavi v. Feather River Anesthesia Medical Group

(2000) 84 Cal.App.4th 32, 61 .)

Given that rule , the propriety of the summary judgment here comes down to one

question : Would a reasonable pers on looking at the parties’ communications think the y

intended t o be bound by a settlement a greement that would later be reduced to a more
formal writing ? (See Beard v. Goodrich (2003) 110 Cal.App.4th 1031, 1038 [contract

formation is governed by objective standards; the test is what the outward manifestations

of consent would lead a reasonable person to believe].) We conclude the

communications between Hodroj’s lawyer and CSAA reflect a settlement which could be

later memorialized in a formal writing . No reasonable trier of fact would find otherwise.

Hodroj’s offer communicated that he agreed to settle his personal injury claim for

the insurance policy limits, provided his offer was accepted within 21 days

, and provided

that CSAA show proof of the policy limits and that there was no other potential insurance

coverage. The offer expressly anticipated another instrument : “You may further

condition your acceptance of this offer by requiring that our client ex ecute a Release of

all Bodily Injury Claims against your insureds and their heirs only, which Release is not5

inconsistent with the terms and conditions of this offer.” CSAA’s timely written

response communicated that the offer was accepted . CSAA provided the requested

documentation and conditionally tendered payment in the amount of the policy limits.

Like the offer, the acceptance also contemplated a formal release and proposed one for

Hodroj to sign.

We are confident that an objective observer would conclude from those

communications that the parties intended to settle Hodroj’s bodily injury claim for the
amount of the insurance policy limits ($100,000) and to later memorialize those terms in

a formal document. Th at the proposed document contained t erms materially different

from what had been agreed to does not change the binding effect of the initial agreement.

Hodroj was under no obligation to sign a release that was inconsistent what he agreed to.

But a proposed writing that does not accurately reflect the terms of an agreement does not

unwind the entire deal. The contract formed by the parties’ offer, acceptance , and

consideration is still enforceable. Hodroj breached th e contract here by filing suit on the

bodily injury claims he had agreed t o settle.

The rule that a proposed writing containing terms different than those agreed on

does not render the initial agreement unenforceable is desirable from a policy

perspective. “ ‘ “ Any other rule would always permit a party who has entered into a
contract like this, through letters

... to violate it, whenever the understanding was that it

should be reduced to another written form, by simply suggesting other and additional

terms and conditions. If this were the rule the contract would never be completed in

cases where, by changes in the market, or other events occurring subsequent to the

written negotiations, it became the interest of either party to adopt that course in order to

escape or evade obligations incurred in the ordinary course of com mercial business

. ” ’ ”

( Stephan v. Maloof (1969) 274 Cal.App.2d 843, 848

– 849.)

Hodroj also contends that the trial court erred by overruling his objections to

evidence regarding insurance industry custom and practice. That evidence is unnecessary6

to our decision so we have not considered it. We therefore need not decide whether it

was error to admit an expert’s declaration over Hodroj’s objections.

Given o ur conclusion that a contract was formed to settle Hodroj’s bodily injury

claim

, the trial court properly granted CSAA’s motion for summary judgment o n its

breach of contract cause of action and properly denied Hodroj’s motion for summary

judgment on his declaratory relief cause of action.

III. DISPOSITION

The judgment is affirmed. Costs are awarded to responden t by operation of rule

8.278, subdivision (a)(1) of the California Rules of Court.____________________________________ Grover, J.

WE CONCUR:

____________________________ Greenwood, P. J.

____________________________ Danner , J

.

H046475

- CSAA Insurance Exchange v. HodrojFiled 12/1/ 21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CSAA INSURANCE EXCHANGE,

Plaintiff and Respondent,

v.

RAED HODROJ,

Defendant and Appellant. H046475 (Santa Cruz County Super. Ct. No. 17

- CV

- 00467)

ORDER GRANTING REQUEST FOR PUBLICATION

BY THE COURT:

Pursuant to California Rules of Court, rule 8.1105(b), the request for publication is

hereby granted. It is ordered that the opinion in this matter filed on November 3 , 2021,

shall be certified for publication.

Dated:

______________________________ _______ Greenwood, P . J.

_____________________________________ Grover, J.

_____________________________________ Danner, J.Trial Court: Santa Clara County Superior Court Superior Court No. 17CV00467

Trial Judge: Hon. Paul P. Burdick

Plaintiff and Respondent CSAA INSURANCE EXCHANGE Richard Wardell Loveland Alyssa Dang Coddington Hicks & Danforth APC

Defendant and Appellant RAED HODROJ Stanley Kenneth Jacobs Jacobs & Jacobs LLP

H046475

- CSAA Insurance Exchange v. Hodroj