Judge Kenneth J. Medel, Case 37-2020-00015399-CU-OR-CTL 2024-01-12 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2020-00015399-CU-OR-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2020-00015399-CU-OR-CTL FIFIELD VS SCHWARTZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Judgment, 07/20/2023

PLAINTIFF JASON FIFIELD AND DEFENDANTS IKE FIFIELD AND LORNA FIFIELD'S JOINT MOTION TO SET ASIDE JUDGMENT IS DENIED. This is a partition action in which Plaintiff seeks to compel the sale of real property, and for equitable distribution of the proceeds.

The property at issue is a duplex. Plaintiff and Defendants TODD FIFIELD, LORNA FIFIELD, and IKE FIFIELD were co-owners of the Property pursuant to the Notice of Entry of Judgment or Order filed on February 15, 2019. It is undisputed that after one defendant, Todd, transferred his interest by grant deed in February, 2020, the parties own the property in the following proportions: Plaintiff: 1/6; Defendant Schwartz and Defendant Johnson: 1/3; Defendant Lorna: 1/3; Defendant Ike: 1/6 Defendant Schwartz and Defendant Johnson manage the Property, continuing to live in the bottom floor of one of the four units. After the parties disagreed on a plan to market and sell the property, plaintiff proceeded with this partition action.

On February 18, 2022 referee Richardson 'Red' Griswold was appointed to effectuate the sale of the Property and related distribution of sales proceeds. ROA #82.

On the eve of trial, the parties settled their disputes, which included significant equitable adjustments to their individual distributions from the sale of the Property. Consistent with their agreements(s), on or about November 21, 2022, the parties entered into a Settlement Agreement and Mutual Release ('Settlement Agreement'). Exhibit 21 to Stokes Decl. Thereafter, on December 8, 2022, the parties entered into a Stipulation Re Distribution of Sales Proceeds. ROA #155. On 12/21/22, the Court signed an order approving the distribution and discharge of the referee. (ROA 152) Counsel for IKE and LORNA, Shad Cavoulas, argues that in January, 2023, he discovered a significant mistake in the final version of the parties' Settlement Agreement. Plaintiff Jason Fifield and Ike and Lorna move to set aside the judgment.

Plaintiffs rely on Code of Civil Procedure section 473(d): 'The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed...' A judgment is correctable when the judgment does not reflect the Court's true intentions. Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 118; Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 209. Correctible errors are those errors that were made, such as here, inadvertently. On v. Cow Hollow Properties (1990) 222 Cal.App.3d 1568, 1574. 'If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered' the error 'may be corrected to correspond with what it would have been but for the inadvertence.' Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 210.

The parties in this case concede that the Court entered a 'judgment' in January, 2023. Immediately after arguing for setting aside a judgment based upon clerical error, plaintiffs argue how the judgment was based upon a mutual mistake. Mr. and Ms. Fifield have identical separate declarations which state: Calendar No.: Event ID: TENTATIVE RULINGS

2999023 33 CASE NUMBER: CASE TITLE: FIFIELD VS SCHWARTZ [IMAGED] 37-2020-00015399-CU-OR-CTL 'In late January 2023, my attorney notified me that SCHWARTZ/JOHNSON received a significant amount of money more than they should have from the distributions following the sale of the Property.

Certain other calculations were also incorrect. Since learning this, I reviewed the calculations in detail. I learned SCHWARTZ/JOHNSON received a whopping $179,940.91 more than they should have.

LORNA received 10% less than she should have. I received 10% less than I should have. Meanwhile, Ike received $6k more than he should have, which he agreed to pay back, in the interest of justice.' In the Opposition to the Motion for Sanctions, plaintiff states: 'The mistaken fact which is the subject of the Joint Motion is the unawareness that the figures supplied by the court appointed referee ('Referee') for disbursement of the sale proceeds among all the property owners included a deduction made during escrow for the payment of Richard and Julianne's mortgage in the amount of $303,979.29. As a result, all of the property owners (Jason Fifield, Ike Fifield, Lorna Fifield, Richard Schwartz, and Julianne Johnson) inadvertently and unwittingly paid for the lien recorded against Richard and Julianne's ownership interest(s) in the property. This inadvertent and unwitting payment resulted in a windfall to Richard and Julianne in the amount of $179,940.91.' Even if this was a 'mistake', it is not clear that it was a mutual mistake. There is no 'mistake asserted' based on any evidence, nor evidence that 'one party is mistaken' and no evidence that 'the other party' knew about any mistake and took advantage of the same. But more important, it was not a mistake of the court in rendering the judgment.

DEFENDANTS, RICHARD SCHWARTZ AND JULIANNE JOHNSON's MOTION FOR SANCTIONS PURSUANT TO CCP 128.7 IS DENIED. Code of Civil Procedure Section 128.7, subdivision (b)(1), prohibits a plaintiff and his attorney from signing, filing, submitting, or advocating any pleading or paper 'for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.' Section 128.7, subdivision (b)(3), imposes a duty on parties and their counsel to have 'evidentiary support' for all 'allegations and other factual contentions' in their signed submissions to the court and restricts litigants and their counsel from making claims that 'are [not] likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.' Under Section 128.7, a court may impose sanctions if the court concludes a complaint was filed for an improper purpose, such as to needlessly increase the cost of litigation, or it was brought without merit factually. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) Section 128.7 'requires only that the conduct be 'objectively unreasonable'' before sanctions can be ordered. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 401 [citation omitted].) The statute provides a 21-day period during which a plaintiff who is served with a Section 128.7 motion may avoid sanctions by withdrawing the complaint or correcting it to conform to facts available. (Code Civ. Proc., § 128.7, subd. (c)(1).) This motion has to be denied because it was not served 21 days prior to filing. The POS on file indicates service on the same day it was filed. Even so, the Court cannot conclude based on the papers and arguments that the motion to set aside was filed for an improper purpose.

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