Judge Daniel S Belsky, Case 37-2019-00060693-PR-TR-CTL 2023-09-14 Tentative Ruling

Judge: Daniel S Belsky, Case: 37-2019-00060693-PR-TR-CTL, Date: 2023-09-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 13, 2023

09/14/2023 02:00:00 PM 504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate Trust Proceedings Motion Hearing (Probate) 37-2019-00060693-PR-TR-CTL IN THE MATTER OF THE CLARENCE RAYMOND HARMON AND LUCILLE MARIE HARMON TRUST DATED FEBRUARY 25, 1985, AS AMENDED, AND ALL HEATHER CAUSAL DOCUMENT/DATE FILED: Motion to Enforce Settlement, 07/03/2023

Pursuant to Superior Court of San Diego County, Local Rule, rule 4.23.7, the court's tentative ruling is as follows: The unopposed Motion to Enforce Settlement Agreement filed by Petitioners is GRANTED. Judgment is entered against Respondent John Gibson in an amount to be established at the hearing.

I. Background On November 15, 2019, Petitioners Heather M. Schafer, Heidi Margaret Harmon, Christopher R.

Schafer, Casey R. Schafer, and Bryan R. Schafer filed a petition for relief from breach of trust, to compel trustee to account, and to remove trustee and appoint successor trustee. (ROA 1.) The petition was supplemented on March 6, 2020. (ROA 13, Supplement to Petition.) Thereafter, on February 24, 2022, Petitioners filed a notice of conditional settlement of the entire action.

(ROA 58, Notice of Settlement.) On July 10, 2023, the petition was taken off calendar based on the settlement. (ROA 77, Minute Order filed Jul. 10, 2023.) Petitioners move to enforce the settlement agreement against Respondent John Gibson ('Respondent') on the ground the settlement agreement between the parties requires Respondent to make a payment of $1,100,000 to Bryan Schafer as trustee (c/o Attorney Kevin Forrester at 4403 Manchester Ave Ste 205, Encinitas, California) in installments of $5,000 on or before January 7, 2022, and $1,095,000 on or before July 28, 2022. (ROA 78.) Respondent made the $5,000 payment but has made no further payments since then.

Petitioners argue that on January 5, 2023, Respondent effectively paid $974,844.14, through foreclosures conducted in Nevada against Respondent's real property. Petitioners claim that a balance of $158,755.86 remains unpaid by Respondent, and $125,155.86 is accruing interest at the annual rate of 10%.

Petitioners move for judgment against Respondent in the principal amount of $158,755.86, plus interest at the rate of 10% from January 5, 2023, until the balance due is paid.

II. Discussion Calendar No.: Event ID: TENTATIVE RULINGS

2995011 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE CLARENCE RAYMOND HARMON 37-2019-00060693-PR-TR-CTL The conditions of the Settlement Agreement are set forth at paragraph 5: - The Parties hereto executing duplicate original copies of this Settlement Agreement; - On or before January 7, 2022, John Gibson shall disburse the sum of $5,000.00 to Bryan Schafer as Trustee c/o Attorney Kevin Forrester at 4403 Manchester Ave Ste 205, Encinitas, CA 92024; - On or before July 28, 2022, John Gibson shall disburse the sum of $1,095,000.00 to Bryan Schafer as Trustee c/o Attorney Kevin Forrester at 4403 Manchester Ave Ste 205, Encinitas, CA; - Any sum not paid by July 28, 2022, shall begin to accrue interest at the annual legal rate often (10%) percent; and - Upon receipt from Attorney Kevin Forrester of an assignment of all shares of Taxometry, LLC held, owned or controlled by John Gibson and/or BJG Consulting & Management, LLC, to Bryan Schafer as Trustee, John Gibson shall execute and return said assignment to Attorney Kevin Forrester as set forth above.

(ROA 78, Exh. A, Settlement and Mutual General Release Agreement.) Here, the settlement agreement provides in pertinent part, a breakdown of the payments to be made by Respondent to Petitioners as part of the settlement. According to Petitioners, Respondent agreed to pay Petitioners $1,100,000 to settle the case, as follows: $5,000 due on or before January 7, 2022, and $1,095,000 due on or before July 28, 2022.

Petitioners have thus far been paid $5,000, and the unpaid balance of $1,095,000 accrued interest through January 5, 2023, when the payment of $974,844.14 was made. Thus, 10% annual interest on $1,095,000 is $300/day. From July 28, 2022, through January 4, 2023, total interest was $48,000, for a total sum of $1,143,000 ($1,095,000 + 48,000 = $ 1,143,000) owed by Respondent.

On January 5, 2023, Respondent effectively paid $974,844.14. Thus, $168,155.86 ($1,143,000 - $974,844.14 = 168,155.86) remains outstanding. Petitioners claim Respondent owes $158,755.86 and that interest is accruing on $125,155.86, however, the Court cannot determine how Petitioners arrived at these figures.

The Court is not in receipt of any opposition. 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 the settlement agreement is GRANTED. However, the Court will hear from the parties regarding the amount of the judgment.

Counsel for Petitioners is directed to serve notice of this ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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