Judge Cynthia A Freeland, Case 37-2019-00048141-CU-BC-NC 2023-11-17 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2019-00048141-CU-BC-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00048141-CU-BC-NC FASTHORSE VS. KIA MOTORS AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 10/09/2023

Plaintiff Marilyn Fasthorse ('Plaintiff')'s motion to enforce settlement is granted.

On September 12, 2019, Plaintiff commenced this action by filing a Complaint against Defendant Kia Motors America, Inc. ('Defendant') for breach of the implied warranty of merchantability and breach of express warranty under the Song-Beverly Consumer Warranty Act. See ROA No. 1. On April 27, 2022, Plaintiff and her attorney executed a Settlement and Release Agreement (the 'Settlement Agreement').

See Barry Decl., Ex. 3. A representative for Defendant signed the Settlement Agreement on May 5, 2022. The Settlement Agreement requires Defendant to pay Plaintiff, Plaintiff's counsel, and the subject vehicle lienholder a sum certain. In exchange, Plaintiff must 'surrender possession of the Subject Vehicle to Kia America, Inc. at a mutually agreed date, time, and location. Defendant agrees to allow Plaintiff to deliver the Subject Vehicle within 60 days of receipt by Defendant of the executed settlement agreement by Plaintiff.' See Settlement Agreement, ¶ 2. Plaintiff further agreed to return the vehicle to Defendant 'in good condition, without collision damage, bumper damage[], windshield damage, or vandalism, save the alleged nonconformities, with all factory equipment, as on the date of the loan, present on or in the Subject Vehicle when it left Kia America, Inc. or its authorized representatives.' Ibid., ¶ 3.

On February 15, 2023, Defendant filed a motion to enforce the Settlement Agreement under California Code of Civil Procedure ('CCP') § 664.6. See ROA No. 86. In that motion, Defendant claimed that the parties had coordinated a return of the vehicle to Defendant's third-party vendor for processing customer returns of vehicles, Morley VSPC ('Morley') on July 15, 2022. Plaintiff did, in fact, surrender the vehicle to Morley on July 15, 2022. That same day, however, Morley informed Defendant that Plaintiff had returned the vehicle with exterior body damage, viz., 'a ripple of dents on the upper fender along with a few minor damages. The estimate for the repair, parts and labor included, is $2,173.57.' See Defendant's Motion to Enforce Settlement, p. 3, l. 24 – p. 4, ll. 1-2. Plaintiff's counsel subsequently inquired as to whether Defendant would be willing to accept the vehicle in an 'as-is' condition. Ibid., p. 4, ll. 13-14. Defendant indicated that it would be unwilling to do so and requested that Plaintiff either: (1) repair the vehicle before returning it, or (2) pay Defendant the amount necessary to repair the vehicle.

Ibid., p. 4, ll. 20-23. Further meet and confer efforts proved unsuccessful. On May 19, 2023, the court, over Plaintiff's opposition, granted Defendant's motion to enforce the Settlement Agreement and ordered Plaintiff to accomplish the following: The court directs Plaintiff to return the vehicle to Morley within sixty (60) days of this Order 'in good condition, without collision damage, bumper damage[], windshield damage, or vandalism, save the alleged nonconformities, with all factory equipment, as on the date of the loan, present on or in the Calendar No.: Event ID: TENTATIVE RULINGS

3034694 CASE NUMBER: CASE TITLE: FASTHORSE VS. KIA MOTORS AMERICA INC [IMAGED] 37-2019-00048141-CU-BC-NC Subject Vehicle when it left Kia America, Inc. or its authorized representatives.' Consistent with the foregoing, Plaintiff must return the vehicle: (1) in an 'as-is' condition and pay Defendant $2,173.57 for the damage repairs, or (2) after having repaired the vehicle elsewhere without the damage noted by Morley when Plaintiff originally attempted to return the vehicle on July 15, 2022.

See ROA No. 98; Barry Decl., Ex. 1.

Plaintiff now moves to enforce the Settlement Agreement against Defendant under CCP § 664.6. CCP § 664.6(a) provides that: 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.

Cal. Code Civ. P. § 664.6(a). A motion to enforce a settlement agreement is a summary proceeding. See Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793, 809. The court acts as the trier of fact in determining whether a valid and enforceable settlement agreement exists. See Terry v. Conlan (2005) 131 Cal. App. 4th 1445; Osumi v. Sutton (2008) 167 Cal. App. 4th 1355; Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal. App. 4th 310. The court may receive evidence, determine disputed facts, and enter judgment based upon the settlement agreement's terms, but it cannot create new contractual obligations. See Critzer v. Enos (2010) 187 Cal. App. 4th 1242, 1252. The court applies general contract principles in determining a settlement agreement's enforceability. See Weddington Productions, Inc. 60 Cal. App. 4th at 810-811.

Initially, the court is unclear as to the status of the parties' remaining obligations under the Settlement Agreement. Defendant, in its previous motion to enforce the Settlement Agreement, indicated that Plaintiff had surrendered the vehicle to Morley on July 15, 2022. Plaintiff, in her opposition to that motion, stated that Defendant refused to accept the surrender of the vehicle. See ROA No. 95. In the present motion, Plaintiff seeks an order compelling Defendant to accept the return of the vehicle and pay Plaintiff the amount owed under the Settlement Agreement. More specifically, Plaintiff states that she 'has complied with this Court's Order by agreeing with Kia to pay for the vehicle damage and remaining ready and willing to return the subject vehicle.' See Plaintiff's Motion, p. 3, ll. 9-10. Later in the same motion, however, Plaintiff represents that '[f]or four months, Plaintiff has tried to complete the terms of the settlement and to comply with this Court's order.' Ibid., p. 6, ll. 1-2. By Plaintiff's own admission, she has not, in fact, complied with the court's May 19, 2023 Order. The court specifically directed Plaintiff to return the vehicle to Morley within 60 days, or by July 18, 2023, and either: (1) pay Defendant $2,173.57 for the necessary repairs, or (2) have the vehicle repaired elsewhere before returning it to Morley.

Plaintiff 'agreeing' to pay for the vehicle damage and being 'ready and willing' to return the vehicle is not consistent with the court's prior Order. The court is left to surmise that the parties' failure to complete the Settlement Agreement has been caused, at least in part, by a breakdown in communications as evidenced by the e-mails attached as Exhibit 2 to Mr. Barry's declaration.

Be that as it may, Plaintiff is entitled to an order enforcing the Settlement Agreement against Defendant even if Plaintiff, herself, is not presently in compliance with the agreement or the court's prior Order. See Hines v. Lukes (2008) 167 Cal. App. 4th 1174, 1185. Toward that end, the court construes Defendant's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B.

In addition, the Settlement Agreement unambiguously requires that: (1) Plaintiff return the vehicle to Defendant in good condition, and (2) Defendant remit a sum certain to Plaintiff, Plaintiff's counsel, and the vehicle's lienholder, American Credit Acceptance, LLC ('ACA'). Both Plaintiff and Defendant must comply with the foregoing.

In light of the foregoing, the court grants Plaintiff's motion to enforce the Settlement Agreement. The parties are directed to meet and confer regarding a mutually agreeable time, date, and place for Plaintiff Calendar No.: Event ID: TENTATIVE RULINGS

3034694 CASE NUMBER: CASE TITLE: FASTHORSE VS. KIA MOTORS AMERICA INC [IMAGED] 37-2019-00048141-CU-BC-NC to surrender the vehicle, which surrender shall take place no later than sixty (60) days from the date of this hearing. Plaintiff shall remit to Defendant, at or before the time of surrender, the sum of $2,173.57 to cover the necessary repairs for the vehicle. Defendant, for its part, shall: (1) cooperate with Plaintiff in coordinating the surrender of the vehicle, and (2) remit to Plaintiff, Plaintiff's counsel, and ACA, within thirty (30) days of Plaintiff accomplishing the foregoing, all sums owed by Defendant under the Settlement Agreement.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 17, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 17, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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