Judge Daniel S Belsky, Case 37-2019-00043085-PR-TR-CTL 2024-01-25 Tentative Ruling

Judge: Daniel S Belsky, Case: 37-2019-00043085-PR-TR-CTL, Date: 2024-01-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - January 24, 2024

01/25/2024 02:00:00 PM 504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate Trust Proceedings Motion Hearing (Probate) 37-2019-00043085-PR-TR-CTL THE DOLORES ROIZ OROZCO FAMILY TRUST DATED JANUARY 3RD, 2007 CAUSAL DOCUMENT/DATE FILED: Motion - Other, 10/31/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The unopposed Motion to Enforce Settlement Agreement filed by Russell Alexander Orozco and Jeannette Strehle as Administrator of the Estate of Minerva Orozco (ROA 138) is GRANTED IN PART.

Judgment is entered against Respondent Charles Orozco in the sum of $83,560.

I. Background On August 16, 2019, Russell Alexander Orozco ('Petitioner') filed a Petition to Remove Trustee and to Approve Successor Trustee, and to Compel Trustee to Account. (ROA 1, Supp. at ROA 8.) Thereafter, the parties participated in mediation and reached a full settlement of all issues and claims.

(ROA 107, Stipulated Order Approving Settlement and Vacating Pending Dates filed Aug. 2, 2022.) On December 20, 2022, Petitioner applied ex parte for an order to enforce the settlement agreement.

(ROA 110.) This application was withdrawn by Petitioner prior to the hearing. (ROA 119.) On August 9, 2023, Petitioner applied ex parte for an order to enforce the settlement agreement. (ROA 126.) The Court denied the application without prejudice, in part based on defects noted by the Probate examiner. (ROA 129, Minute Order dated Aug. 10, 2023.) On August 23, 2023, Petitioner once again applied ex parte for an order to enforce the settlement agreement. (ROA 132.) The Court denied the application without prejudice, advising the party to refile after the defects noted by the Probate examiner were cured. (ROA 137, Minute Order dated Aug. 24, 2023.) Petitioner moves pursuant to CCP § 664.6 for entry of judgment against Charles Orozco ('Respondent') and in favor of Petitioners in the stipulated amount of $80,000, plus legal fees and expenses of $6,000.

(ROA 138.) Petitioner argues that Respondent entered into a settlement agreement with Petitioners agreeing that judgment could be entered against him pursuant to CCP § 664.6 in the amount of $80,000 (plus legal fees and costs) if Respondent failed to pay Petitioners this amount within 120 days of the settlement, or by November 2, 2022. Respondent has not made the required payment, and judgment must now be entered against him and in favor of Petitioners.

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3068037 CASE NUMBER: CASE TITLE: THE DOLORES ROIZ OROZCO FAMILY TRUST DATED JANUARY 37-2019-00043085-PR-TR-CTL Because the proof of service of the motion papers indicated service on Respondent only, the matter was continued from December 14, 2023, for moving party to also serve counsel of record for Respondent.

(ROA 149, Minute Order filed Dec. 14, 2023.) The Court is not in receipt of any opposition from Respondent.

II. Discussion The Settlement Agreement provides in pertinent part: Payment from Charles. Within 120 days from the date of execution of this Agreement, Charles will pay to 'Law Offices of Robert L. Hill Client Trust Account' the sum of eighty thousand dollars ($80,000.00) ('Settlement Payment'). The Settlement Payment shall be delivered to Law Offices of Robert L. Hill, APC, 5055 Avenida Encinas, Suite 100, Carlsbad, CA 92009.

Stipulated Judgment. Charles agrees to sign a stipulated judgment in favor of Russell and the Minerva Estate, jointly, for $80,000.00. The stipulated judgment, with credits for any payments made, will only be filed if Charles does not make the Settlement Payment within 120 days of the execution of this Agreement.

(ROA 140, Hill Decl., Exh. A, at ¶¶ 2, 3, Settlement Agreement and Mutual General Release Agreement.) The settlement agreement further provides that '[i]n the event litigation is instituted to enforce or interpret this Agreement, the prevailing party in the legal action shall be entitled to reasonable attorney's fees and costs, including expert witness costs.' (Id., Exh. A, at ¶ 13.) The Court retains jurisdiction to enforce the settlement agreement pursuant to CCP § 664.6. (Id., Exh. A, at ¶ 5.) Here, the settlement agreement provides that Respondent will pay $80,000 as part of the settlement and sign a stipulated judgment in favor of Petitioner and the Minerva Estate, jointly, for $80,000. Petitioner avers that Respondent has not made this payment, and thus, Respondent is in breach of the settlement agreement.

The Court is not in receipt of any opposition from Respondent. Under Local Rule 2.1.19(B), '[t]he court may deem a lack of opposition to be a concession that a motion is meritorious.' Therefore, the motion to enforce settlement is GRANTED. Judgment is entered in the sum of $80,000, plus attorney's fees and costs, as determined below, against Respondent and in favor of Petitioner.

As to attorney's fees and costs, Petitioner requests $6,000: $5,600 in fees based on 16 hours of attorney time at the billing rate of $350 per hour, plus $400 in costs (for filing and service). (ROA 140, Hill Decl., at ¶ 6.) The Court finds that the billing rate is reasonable, but the hours claimed are excessive. Attorney Hill claims 14 hours for 'efforts to enforce the Settlement Agreement, including, among other items, (1) engaging in multiple communications with Mr. Dube about whether and when Charles was going to pay the $80,000.00 settlement agreement after he breached; (2) preparing the prior ex parte application that was withdrawn at Mr. Dube's request; and (3) preparing this motion.' (Id.) Regarding the most recent prior ex partes, the Court informed counsel of the defects noted by the Probate examiner and that the application could not be filed as an ex parte drop. Yet, Petitioner applied ex parte again without correcting the defects. (See ROA 137.) The first ex parte application was withdrawn by Petitioner, admittedly because Petitioner was waiting for resolution of another lawsuit (identified as the 'Griffin Claim' in the settlement agreement at paragraph 4, involving Respondent).

Thus, the Court finds that the time expended on the ex parte applications is not justified in that they were Calendar No.: Event ID: TENTATIVE RULINGS

3068037 CASE NUMBER: CASE TITLE: THE DOLORES ROIZ OROZCO FAMILY TRUST DATED JANUARY 37-2019-00043085-PR-TR-CTL unnecessary; a single motion or application could and should have been filed.

Further, considering the simple four-page motion presently before the Court, the Court is not convinced that 14 hours are reasonable. The additional two hours to attend the hearing and serve notice on the client and attorney Dube is excessive, particularly where the proof of service (ROA 144) shows service on Respondent by mail and does not show service on attorney Dube. (See also ROA 152, Proof of Service filed Dec. 20, 2023, showing service by email and mail.) In addition, Petitioner refers to filing and service fees of $400 but provides NO evidence to substantiate these costs. The filing fees associated with the ex parte applications, as discussed above, are not justified.

As such, the Court reduces the amount of requested attorney's fees and costs and awards $3,560 ($350 x 10 hrs. = $3,500, plus a filing fee of $60).

In sum, the motion to enforce the settlement agreement is GRANTED. Judgment in the sum of $83,560 is entered against Respondent and in favor of Petitioner.

Counsel for Petitioner is directed to serve written notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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