Judge John J. Kralik, Case 19BBCV00503 2023-01-27 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Robert Shutty (“Plaintiff”) commenced this action for partition by sale in real property located at 5109 Klump Avenue, North Hollywood, CA 91601. Plaintiff alleged that he owned 50% of the property and that Defendant Kelly Lee Ratledge aka Kelly Lee Sexton (“Defendant”) owned 50%. Plaintiff alleged that the parties split all costs associated with ownership of the property until 1998. He alleged that though Defendant resided on the property, she had not been paying any expenses. The parties disagreed on whether Defendant was entitled to her 50% share of the gross proceeds from the sale of the property, without her lack of contribution to the expenses and upkeep of the property undertaken since 1998.

The complaint, filed June 7, 2019, alleged causes of action for: (1) partition of real property (CCP §872.010 et seq.); and (2) declaratory relief.

On May 20, 2021, Plaintiff filed a Notice of Conditional Settlement of the Entire Case, stating that the settlement agreement conditions dismissal of the matter on the satisfactory completion of the specified terms that are not to be performed within 45 days of the settlement and that the request for dismissal will be filed no later than January 1, 2022.

A Settlement Agreement and Mutual Release (“Settlement Agreement) was entered between Plaintiff Robert Shutty and Defendant Kelly Lee Ratledge a.k.a. Kelly Lee Sexton. They each signed the agreement on May 17, 2021. The Settlement Agreement states in relevant part (Mot., Ex. 1):

· Option 1: Within 90 days of execution of the Settlement Agreement, Defendant will buyout Plaintiff from 5109 Klump Ave., North Hollywood, CA 91601 (“Property 1”) and 5115 Klump Ave., North Hollywood, CA 91601 (“Property 2”) at a total of $931,698 (“Buyout Payment”). (Settlement Agreement, §2.)

· Option 2: In the event that Defendant does not buyout Plaintiff, the parties agree the properties shall be sold to a third-party purchaser on the open market. The parties agreed on a method to select a real estate broker (and commission cap). The parties also agreed to the terms of the sale and how to distribute the proceeds. The parties agreed to cooperate and take any actions necessary to effectuate the sale. (Id., §3.)

· The parties understand that time is of the essence with respect to the obligations under the Settlement Agreement. (Id., §6.)

· “The Parties agree that they shall execute and file with the court a notice of settlement, acknowledging their agreement. It is hereby agreed, acknowledged, stipulated, and requested that the Court shall retain jurisdiction over all parties and the Action and to enforce and supervise the terms and conditions of the settlement and stipulation herein until full performance of the terms of this settlement is completed and for entry of judgment in the event of default pursuant. California Code of Civil Procedure §664.6 et seq. Shutty shall file the Notice of Conditional Settlement with the Court.” (Id., §7.)

· The parties each provided releases in the Settlement Agreement and a Civil Code, § 1542 waiver. (Id., §§10-12.)

On December 28, 2021, the Stipulated Judgment was entered. The parties stipulated that: (1) each party shall vacate the properties at 5109 and 5115 Klump Avenue, North Hollywood, California within 30 days after close of escrow for the sale of the properties; (2) each party shall be liable to the other for $500/day in damages for each day he or she fails to vacate the properties after the 30^th day after the close of escrow; (3) any party who violates any provision of the stipulation, which violation requires the non-violating party to obtain assistance from the Court for possession of the properties, shall be liable to the non-violating party for reasonable attorney’s fees and costs incurred in connection with any procedures initiated to obtain possession of the properties; and (4) if either party does not vacate within 30 days after the close of escrow of the sale of the properties, the Court shall issue a writ of possession upon ex parte notice. (See Mot. at Ex. 2.)

On April 20, 2022, the Court granted Plaintiff’s ex parte application for writ of possession and order for attorney’s fees and costs of $2,500 and holdover damages of $1,000 against Defendant pursuant to the stipulated judgment. That same day, a writ of possession of the properties was issued against Defendant.

On May 2, 2022, a writ of possession of real property was issued against Defendant.

On November 4, 2022, the Court granted Plaintiff’s motion to amend the Stipulated Judgment to add attorney’s fees, costs, and holdover damages in the sum of $38,024.50 in attorney’s fees and $1,984.46 in costs.

On November 22, 2022, the Court entered the Amended Judgment, which states that Plaintiff’s claims against Defendant are dismissed with prejudice, Plaintiff is awarded fees and costs in the total sum of $40,008.96, plus post-judgment interest at the statutory rate. Notice of entry of the order was provided by the Clerk of the Court by mail on November 22, 2022.

On December 2, 2022, Defendant filed a motion for reconsideration, to vacate the judgment, and for a new trial based on the Court’s decision to enter judgment on the pleadings after the Order to Show Cause re: Dismissal (Settlement) hearing.

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

In the reply brief, Defendant objected to the declaration of Plaintiff’s counsel Brent A. Kramer. Objection nos. 1-6 are overruled.

As a preliminary matter, the motion is untimely and may be denied on this basis. Defendant appears to be bringing this motion for reconsideration regarding the Court’s entry of the judgment on November 22, 2022. However, CCP § 1008 applies to applications for an order, which in this case was Plaintiff’s motion to amend the Stipulated Judgment, which the Court granted on November 4, 2022. Plaintiff served on Defendant the Court’s November 4, 2022 order granting the motion to amend the Stipulated Judgment on November 7, 2022 by mail and email. (See 11/7/22 Notice of Entry of Order.) Defendant filed this motion on December 2, 2022, which is over 10 days from service by mail and service by email.

In addition, “[a] trial court may not rule on a motion for reconsideration after entry of judgment.” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192.) However, the Court may construe this motion for reconsideration as a motion for new trial pursuant to its inherent authority to manage and control its docket. (Id. at 193.) Here, the Amended Judgment was entered on November 22, 2022. Defendant filed this motion after the entry of judgment. As such, the Court cannot consider this motion for reconsideration.

Defendant cites to CCP § 657 regarding new trial motions on page 7 of her moving papers. However, no trial was conducted for this case and that instead the parties settled the matter and entered the Stipulated Judgment. Thus, the Court declines to convert this motion for reconsideration into a motion for new trial.

Even if the Court were to overlook the procedural issues and consider the merits of this motion for reconsideration, there would still be grounds to deny the motion.

Defendant argues that the Court misapplied the law when entering judgment in this case because Defendant fully performed on the Settlement Agreement, but the Court rewarded Plaintiff (the breaching party) when Plaintiff had not fully performed to transfer the Clear Currents Inc. shares. Defendant argues that there is new evidence in the form of David Winterburn’s declaration, which was not available at the time of the previous hearings. (Mot., Ex. JJ.)

Although Defendant cites to an Exhibit JJ and there is a cover page for Exhibit JJ, no exhibit papers are attached following the Exhibit JJ cover page. With the reply brief, Defendant submitted the declaration of David Winterburn, which is dated January 20, 2023. In the January 20, 2023 declaration, Mr. Winterburn refutes the statements made in Mr. Kramer’s declaration submitted with the opposition brief. However, Mr. Winterburn’s January 20, 2023 declaration does not constitute new or different facts, circumstances, or law that would warrant reconsideration of the Court’s prior ruling, as this declaration only responds to Plaintiff’s opposition papers.

To the extent that Defendant moves pursuant to CCP § 1008 for reconsideration, the Court denies the motion. Defendant has not provided any new or different facts, circumstances, or law. In her prior papers and supplemental papers to Plaintiff’s motion to amend the judgment, Defendant had provided an email from Mr. Winterburn stating that she was not a shareholder of Clear Currents and the process to replace lost or stolen shares. The Court had already considered this evidence when making its ruling on the motion to amend the judgment.[1]

Next, Defendant argues that the Court should grant a new trial. However, a new trial motion is inappropriate based on the procedural posture of this case. A new trial is “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (CCP § 656.) For example, a new trial motion is available to challenge judgments entered after jury or bench trials or judgments disposing of the action without a trial where an issue of fact or law has been decided (i.e., motion for summary judgment, motion for judgment of nonsuit, motion for judgment on a directed verdict, motion of dismissal after demurer is sustained without leave to amend, motion for judgment on the pleadings, etc.). (See Rutter Guide, Cal. Prac. Guide Civ. Trials & Ev. (Oct. 2022 Update) Ch. 18-B, §§ 18:115 – 18:117.) Here, judgment was entered as a result of the parties’ Settlement Agreement and the resulting Stipulated Judgment. As such, Defendant’s attempt to seek a new trial is improper and, therefore, denied.

Finally, Defendant argues that the Court erroneously dismissed this matter because it was required to retain jurisdiction pursuant to CCP § 664.6 and there are still pending issues that require the Court’s resolution. However, the Court has already retained jurisdiction of the matter pursuant to section 664.6, which continues even after the case has been dismissed. CCP § 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Under California law, Courts may continue jurisdiction over parties and their litigation, for the purpose of enforcing their settlement agreement, despite a suit's having been dismissed, only when the parties request the retention of jurisdiction in a manner that satisfies the requirements of CCP § 664.6. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433.) This argument by Plaintiff has no bearing on the merits of this motion for reconsideration.

Defendant’s request in the reply brief for an award of $468 to reimburse her expenses to appear for the hearing that Plaintiff erroneously noticed is denied. Defendant argues that Plaintiff served a notice that the motion for reconsideration was continued from December 23, 2022 to December 27, 2022 (Reply at Ex. KK) and that she traveled from Northern California to Southern California to attend the hearing, only to find that the hearing was set for January 27, 2023. While this may have been a typographical error on the part of Plaintiff, nothing prevented Defendant from checking the Court’s website for upcoming hearing dates. Further, the parties have the option to attend hearings via Court Connect and, thus, do not need to attend hearings physically.

Defendant Kelly Lee Ratledge aka Kelly Lee Sexton’s motion for reconsideration, to vacate the judgment, and for a new trial is denied.

[1] In the opposition papers, Plaintiff’s counsel Brent Kramer raises his suspicions regarding Mr. Winterburn and whether he is a real person. Mr. Kramer states that he called Mr. Winterburn to discuss what steps needed to be taken to transfer Plaintiff’s shares to Defendant, but Mr. Winterburn did not answer the phone. Instead, Mr. Winterburn requested over email that Plaintiff send a copy of his driver’s license, pay an administrative fee, post a security bond to cover unforeseen legal problems, and prove that Mr. Kramer was counsel of record for Plaintiff in this action. (Kramer Decl., ¶¶24-25, Ex. 4.) Mr. Winterburn then directed Mr. Kramer to contact Clear Currents’ legal department, or Daniel Yee, Esq. (Defendant’s former attorney in this case). (Id., ¶¶25, 29, Ex. 7.) Following these communications, Plaintiff began receiving emails from Dan Daley (Defendant’s boyfriend) with vague threats and photographs of guns and jail bars. (Id., ¶27, Ex. 6.)