Judge Kerry Bensinger, Case Number: 21STCV00307, Date: 2024-08-09 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO ENFORCE SETTLEMENT AGREEMENT AND ENTER JUDGMENT PURSUANT TO CCP § 664.6 AND ATTORNEY’S FEES

On January 5, 2021, Plaintiff, William Basner, initiated this action against Defendant, Alexander Frankian, for partition of the real property at 23311 Valdez Road, Topanga, California (the “Property”).

On May 12, 2023, the parties executed a Settlement Agreement. Under the terms of the Settlement Agreement, the parties agreed the Property would be promptly listed for sale, and the parties would retain a real estate broker to list and market the Property. And, as relevant here, the Parties agreed to cooperate in good faith, to review offers in good faith and to take all steps necessary to effectuate the sale of the Property. Further, the parties represented and confirmed there were no liens on the Property or abstracts of judgment that may be attached to the Property.

Thereafter, Defendant obtained a Seller’s Report recommending a listing price of $590,000 and presented the same to Plaintiff. Defendant also found a listing agent and presented a Listing Agreement to Plaintiff. On August 10, 2023, counsel for Plaintiff agreed to the listing agent proposed by Defendant.

On August 14, 2023, Defense counsel provided Plaintiff with the Listing Agreement for Plaintiff’s signature. Plaintiff has refused to sign the Listing Agreement, and further, now claims that he does not want to settle this case. On January 19, 2024, Defense counsel apprised the court of this matter. The court directed Defendant to file a noticed motion to enforce settlement as required by the Settlement Agreement.

Plaintiff filed an unlawful detainer action in Los Angeles Superior Court against Defendant and businesses associated with Defendant on January 5, 2021 under Case No. 21AVUD00003. On May 11, 2021, Lake Hughes Recovery, a business associated with Defendant, filed a separate business tort action against Plaintiff in Los Angeles Superior Court under Case No. 21STCV17645. The two actions were consolidated by stipulation on September 1, 2022 under the lead Case No. 21STCV17645 ("Civil Action"). On March 23, 2023, the court deemed both actions related and assigned to Department 51 for all purposes.

On October 17, 2023, the parties in the Civil Action negotiated a settlement which was announced in open court and placed on the record. Pursuant to the terms of the settlement in the Civil Action, the distribution of net proceeds from the sale of the Property from 50-50 to 57.5% to Defendant and 42.5% to Plaintiff. In addition, the Listing Agreement that Plaintiff had refused to sign was mentioned and the court included an order in its Minute Order requiring Plaintiff to sign the Listing Agreement within seven days. Plaintiff verbally agreed to the terms of the settlement. However, Plaintiff again refused to sign the Listing Agreement and attempted to set aside the settlement in the Civil Action by motion. Department 51 denied Plaintiff’s motion.

On May 9, 2024, Defendant filed this Motion to Enforce Settlement Agreement Pursuant to CCP §664.6 and Attorney’ Fees. Defendant seeks attorney’s fees in the sum of $13,725.00.

“If parties to pending litigation stipulate, in a writing signed by the parties outside 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.)¿¿¿¿

In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.¿ (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)¿ The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).¿ The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]”¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a “writing signed by the parties” sufficient to satisfy the requirements of Section 664.6].)¿

Defendant seeks court intervention to enforce the Settlement Agreement. Defendant argues that Plaintiff has refused to sign the Listing Agreement in violation of Section 2(g) of the Settlement Agreement. Section 2(g) states:

Good Faith Cooperation: The Parties agree to cooperate in good faith and to take all steps necessary to effectuate the sale of the Property and the purposes of this Agreement, including without limitation the execution of all closing documents, the preparation of joint escrow instructions, and the preparation of seller disclosure documents. In the event of a disagreement, the Parties are to meet and confer in good faith to resolve their dispute and agree that—in the event of a disagreement between the Parties—heavy deference is to be afforded to any recommendation made by the Broker.

The court finds that Plaintiff’s refusal to sign the Listing Agreement is a breach of the Settlement Agreement. Plaintiff has frustrated the sale of the Property. Given the lack of opposition, and that this matter has not been dismissed, the court finds Defendant is entitled to an order enforcing the Settlement Agreement.

1. Plaintiff be required to execute the Listing Agreement (Exhibit G) immediately. In the event that Plaintiff still fails to sign the Listing Agreement within 10 days of the Court's order, for the Court Clerk to be able to execute the Listing Agreement to list and market the Property for sale.

2. An order that Plaintiff cooperate and participate in good faith in the marketing and selling of the Property and that in the event Plaintiff refuses to and fails to execute any further documents necessary for the sale of the Property, for Defendant to present same to the Court with a Declaration explaining the need for the Court Clerk to execute all documents necessary for the sale of the Property.

3. An order for escrow to distribute the net proceeds from the sale of the Property as follows:

c. Attorney's fees awarded pursuant to court order to be deducted from William Basner's share of the net proceeds and paid directly to Alexander Frankian

4. An order for an award of attorney's fees payable by Plaintiff to Defendant in the sum of $13,725.00 payable from Plaintiff's portion of the net proceeds.

5. An order for the expungement of the Notice of Pending Action recorded on the title of the Property.

6. Fair rate of return at the rate of 6% on the sum of $277,300.00 beginning from January 1, 2024 until the date of distribution of the net proceeds from the Sale of the Property payable to Defendant for the loss of use of the proceeds, from Plaintiff's share of the net distribution.

7. Any further orders the Court deems appropriate and necessary to consummate the sale of the Property and distribution of the net proceeds per the Settlement Agreement herein.

The court cannot grant the relief which Defendant seeks for the following reasons:

Defendant seeks $13,725 in attorney’s fees and costs incurred in enforcing the Settlement Agreement. Recovery of the attorney’s fees and costs is authorized by the Settlement Agreement. (See Settlement Agreement, § 7(b).) The requested sum is based, in part, on an anticipated 7 hours for the review of Plaintiff’s opposition and drafting of the reply, and 1 hour for the appearance in the matter. Given that Plaintiff has not filed an opposition, the court is inclined to award $10,125 in attorney’s fees and costs.

Defendant seeks a 6% rate of return on the sum of $277,300 (half of the Property’s listing price) for the loss of use of the proceeds, which is to be taken from Plaintiff’s half of the proceeds. However, Defendant does not identify any provision of the Settlement Agreement that authorizes this relief.

Kerry Bensinger

Judge of the Superior Court