Judge: Andrew E. Cooper, Case: 19TRCV00282, Date: 2024-06-03 Tentative Ruling

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Case Number: 19TRCV00282    Hearing Date: June 3, 2024    Dept: F51

MOTION TO ENFORCE SETTLEMENT

Motion Filed: 5/10/24

MOVING PARTY: Plaintiff Alexandar Cvetkovich, in pro per (“Plaintiff”)

RESPONDING PARTY: Defendants Cross Creek Village Homeowners Association; Brian Martin; Janice Meldola; Nicolass Pacitto; Lois Bass; and Kodi Mattox (collectively, “Defendants”)

NOTICE: OK

RELIEF REQUESTED: An order and entry of judgment enforcing the terms of a 10/25/23 oral settlement agreement between the parties.

TENTATIVE RULING: The motion is denied.

BACKGROUND

This is an action by the owner of a condominium unit against the homeowners’ association (HOA), the HOA’s counsel, and others. The operative Second Amended Complaint, filed on 9/9/20, contains the following causes of action: (1) breach of governing documents, (2) breach of fiduciary duty, (3) breach of written contract, (4) breach of Davis Stirling Act, (5) discrimination in violation of FEHA and Unruh Civil Rights Act, (6) RICO Conspiracy, (7) unfair debt collection practice, (8) fraud, (9) negligence, (10) nuisance, (11) negligent infliction of emotional distress, (12) injunctive relief, (13) declaratory relief, (14) malicious prosecution and (15) accounting.

On 10/25/23, after hours of expended Court time on the day of trial, the parties orally entered into a settlement agreement before the Court, where the Court recited that “defendants are to pay the plaintiff a total of $150,000. This is subject to the drafting of the settlement agreement, their signatures, … subject to board approval and a good faith -- the court’s approval of a good faith settlement with the other defendants.” (Ex. 6 to Decl. of Alexandar Cvetkovich, 6:20–27.)

On 5/10/24, Plaintiff filed the instant motion enforce the settlement agreement. On 5/20/24, Defendants filed their opposition. No reply has been filed to date.

ANALYSIS

In determining a motion to enforce a settlement under Code of Civil Procedure section 664.6, the court seeks to determine whether the parties entered into a valid and binding settlement of all or part of the case. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.) “To do so it may receive oral testimony in addition to declarations. If the same judge presides over both the settlement and the section 664.6 hearing, he may avail himself of the benefit of his own recollection.” (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.)

“If the oral agreement at issue shows no more than an intent to further reduce the oral agreement to a more formal written one the failure to follow it with a more formal writing does not negate the existence of the prior oral contract.... However, where the oral agreement shows it was not intended to be binding until a formal written contract is executed, there is no contract.” (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1430, quoting Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 [internal quotations omitted].)

Here, Plaintiff has attached a transcript from the court proceedings wherein the parties reached an agreement to settle the action subject to the terms of a written settlement agreement approved by the HOA and signed by the parties. (Ex. 6 to Cvetkovich Decl.) Plaintiff argues that the instant motion is warranted because “instead of getting the simplest Settlement agreement to Plaintiff and the clients for signature, which was consistent with the terms of the agreement, Defendants through their Counsels waited maximum time till the OSC hearing to on just two days prior, on December 6, 2023 present Plaintiff with a massive draft of ‘Settlement Agreement’ inconsistent with the certain terms of the actual agreement, in which they added a long list of the insulting and humiliating condition that are not a part of the oral settlement.” (Pl.’s Mot. 4:14–19.)

Defendants argue in opposition that here, “there is no signed settlement agreement, there is also no signed provision by the Defendants and the Plaintiff which requests this Court to retain jurisdiction to enforce some settlement, and thus Plaintiff has no legal basis to request that this Court enforce a non-existent settlement based on CCP § 664.6. Even if such a clause were to exist in any of the drafts of proposed written settlement agreements, the existence of such a provision proposed in any draft agreement is simply irrelevant, since it is undisputed that none of the proposed settlement drafts have been signed by any of the parties, including Plaintiff himself.” (Defs.’ Opp. 3:1–7.)

The Court finds that Defendants’ argument ignores the Court’s authority to enforce oral settlement agreements made before it. Where parties orally agree, in open court, upon all the material terms and conditions of a proposed written agreement and mutually intend for the oral agreement to become binding, “the mere fact that a formal written agreement to the same effect was not ... signed by all of the parties does not alter the binding validity of the oral agreement on the parties who gave their assent before the trial court.” (Elyaoudayan, 104 Cal.App.4th at 1430, quoting Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 358.) “Having orally agreed to settlement terms before the court, parties may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms. The oral settlement, like any agreement, ‘imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.’” (Id. at 1431.)

Notwithstanding the foregoing, the Court finds that here, unlike in Elyaoudayan, there was no such agreement on the material terms and conditions stated for the record. The Court conditioned the settlement on the drafting and signing of a settlement agreement approved by the HOA Board, and subject to a Court determination of good faith. (Ex. 6 to Cvetkovich Decl., 6:20–27.) Moreover, unlike in Elyaoudayan, here, the parties did not each orally assent to any such material binding terms of a purported settlement agreement. As Defendants’ counsel declares under penalty of perjury, settlement negotiations with Plaintiff remain ongoing. (Decl. of Kere K. Tickner ¶ 2.)

Most importantly, the Court’s recollection of the proposed settlement is clear.  On the day of trial, at the request of the parties, the Court engaged in what it was led to believe was a successful settlement conference. Multiple hours were expended.  While there was no ambiguity that the agreement was subject to HOA board approval, the Court presumed that during the numerous calls made by defense counsel, they had discussed this with one or more board members before agreeing to the preliminary terms.  The proposed settlement was fair and reasonable for both sides in light of the trial risks to all parties. 

Based on the foregoing, the Court finds that no “writing signed by the parties outside of the presence of the court or orally before the court” exists over which the Court has jurisdiction to enforce the terms therein. (Code Civ. Proc. § 664.6, subd. (a).) Accordingly, the Court denies the instant motion to enforce settlement as premature.

CONCLUSION

The motion is denied.