Judge: John C. Gastelum, Case: 21-01219356, Date: 2022-08-30 Tentative Ruling

Motion to Enforce Settlement

Ruling:  Off Calendar – no hearing will be held.  Plaintiff, Blackrock Land Development, LLC’s unopposed Motion to Enforce Settlement Agreement Pursuant to Code of Civil Procedure section 664.6 is GRANTED. Plaintiff moves for an order and judgment to enforce settlement agreement.

Code of Civil Procedure section 664.6 provides, in pertinent part:

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.

(Code Civ. Proc. § 664.6(a).)

“A court ruling on a motion under CCP § 664.6 must determine whether the parties entered into a valid and binding settlement. A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. The court ruling on a motion may consider the parties’ declarations and other evidence in deciding what terms the parties agreed to, and the court’s factual findings in this regard are reviewed under the substantial evidence standard. If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement. The statute expressly provides for the court to ‘enter judgment pursuant to the terms of the settlement.’ ” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182 [internal citations omitted].)

Here, Plaintiff submits a declaration of counsel and attaches a copy of the Complaint, and a copy of the Settlement Agreement and Mutual Release (the “Settlement Agreement”), as Exhibits 1 and 2, respectively. The Settlement Agreement provides that it is made between Blackrock Land Development, LLC (“Plaintiff”) and Matthew Wilkie, Cal Developers, Inc., and Cal Fund I, LLC (“CFI”) (collectively “Defendants”) on February 16, 2022, and that the Plaintiff and Defendants wish to resolve all issues in the action filed on September 2, 2021 by Plaintiff against Defendants, OCSC Case No. 30-2021-01219356-CU-FR-CJC. (Ex. 2 to Declaration of Clinton L. Hubbard, Settlement Agreement at p. 1.)

Paragraph 2 of the Settlement Agreement provides, “Defendants shall pay Blackrock the sum of $140,000 (‘Settlement Payment’) on or before February 25, 2022 by delivering a cashier’s check to Plaintiff’s counsel payable to ‘Clinton Hubbard Attorney Client Trust Account’, at 2030 Main Street, Suite 1200, Irvine, CA 92614. (Ex. 2 to Declaration of Clinton L. Hubbard, Settlement Agreement at p. 1, ¶ 2.) In exchange, Plaintiff “releases and relinquishes all interest in CFI,” and the parties mutually release claims. (Ex. 2 to Declaration of Clinton L. Hubbard, Settlement Agreement at p. 1, ¶¶ 3-4.)

Plaintiff’s counsel provides, “Defendants failed to pay the Settlement Payment by the due date, and Defendants continue to fail and refuse to pay to Plaintiff the Settlement Payment.” (Declaration of Clinton L. Hubbard, ¶ 4.) Defendants have not filed an opposition, and thus, do not dispute the terms of the Settlement Agreement, that the parties entered into an enforceable written settlement agreement, that Defendants have failed to pay the Settlement Payment by the due date, and that Defendants continue and refuse to pay to Plaintiff the Settlement Payment. Based on the foregoing, Plaintiff establishes that Plaintiff and Defendants agreed to all material settlement terms, and that the parties entered into an enforceable settlement on February 16, 2022.

The Court will enter a judgment in the amount of $140,000 against Defendants, Matthew Wilkie, Cal Developers, Inc., and Cal Fund I, LLC.

The Court notes the motion and declaration make reference to Paragraph 12 of the Settlement Agreement which provides that the prevailing party on a dispute arising out of the Settlement Agreement shall be entitled to recover from the non-prevailing party(ties) reasonable attorney fees and costs actually incurred. However, no request based on this provision is made in the notice of motion. The request for attorney fees and costs incurred by Plaintiff in this Motion for Enforcement of Settlement Agreement made in the Memorandum of Points and Authorities states no amount, does not identify against whom such request is made, is not supported, and thus, is not properly made.

In addition, the Court notes that on August 25, 2022, Plaintiff filed an “Application for Award of Attorneys’ Fees and Costs Re motion to Enforce Settlement Agreement; and Supporting Declaration of Clinton Hubbard.” (ROA 36, 38.) Said documents were served on August 24, 2022 by mail and electronic service, and provide that the hearing date is August 30, 2022, a mere six days later.

All moving and supporting papers must be served and filed at least 16 court days before the hearing, and extended two court days for electronic service or five calendar days for service by mail. (Code Civ. Proc., §§ 1005(b); 1010.6(a)(4)(B); 1013(a); 1013(g).)

To the extent these late filings may be construed as supporting papers to the motion, the motion in regards to any request for an award of attorney fees and costs is not proper, and not timely. “A motion filed without the supporting papers upon which it is based is treated as an ‘incomplete motion’ and may be continued, placed off calendar or denied without prejudice.” (Weil & Brown, Cal. Practice Guide:  Civ. Proc. Before Trial (The Rutter Group June 2022 update) ¶ 9:28.1.)

To the extent that these late filings are construed as a separate application or motion, insufficient notice was given. In addition, as of August 25, 2022, no opposition appears in the Court’s file. Based on the foregoing, the Court DENIES the Application for Award of Attorney Fees and Costs, without prejudice.

Plaintiff to give notice.