Judge Kerry Bensinger, Case Number: BC594264, Date: 2024-05-16 Tentative Ruling

This is a quiet title action. On November 22, 2016, Plaintiff Heidi Lindegaard Brask (formerly known as Heidi Annette Christiansen) filed a Notice of Settlement of Entire Case. On January 19, 2017, Plaintiff and Defendant Carmiel Cohen entered into a Settlement Agreement and Release (the “Agreement”). The court dismissed the action pursuant to the Agreement on February 16, 2017. The parties, who have two children together, agreed that Defendant was to make child support payments until the parties’ youngest child turned 18 years of age on July 25, 2021, and to pay Plaintiff the sum of $600,000. Within 90 days of July 25, 2021, Defendant was to make an additional payment of $862,000 for the benefit of the two children. As security for the payment of child support, Defendant was to execute a Deed of Trust in the amount of $350,000 on the property located at 6460 Colgate Avenue, Los Angeles, CA 90048 (the “Subject Property”). As to the $600,000 payment, Defendant was to make the payment within 90 days of July 25, 2021. As security, Defendant was to provide Plaintiff with a Second Deed of Trust in the amount of $600,000, to be reconveyed to Defendant upon receipt of the $600,000 payment.

Defendant’s obligation to pay the sums of $862,000 and $600,000 to Plaintiff was due on October 23, 2021. Defendant did not make the payments. As required by the Agreement, on January 26, 2024, Plaintiff sent Defendant a Notice of Default and Opportunity to Cure. Under the Notice, Defendant had 15 days to cure the default. Defendant did not cure the default.

On February 14, 2024, Plaintiff filed this Motion to Enforce Settlement Agreement. Plaintiff also seeks an award of attorney’s fees and costs.

“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].)¿

“‘[V]oluntary dismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.’ (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 867) [12 Cal.Rptr.3d 142.) ‘If requested by the parties,’ however, ‘the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement.’ (§ 664.6, italics added.)” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.) “‘Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.’” (Ibid. (quoting Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37).)

“A request for the trial court to retain jurisdiction under section 664.6 ‘must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’” (Ibid. (quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440).) “The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’” (Ibid. (quoting Wackeen, supra, 97 Cal.App.4th at 440).)

Here, Plaintiff references the Agreement as Exhibit 1 but did not attach it to the motion. Instead, Plaintiff sets forth the pertinent contractual language in the body of the motion. Although Defendant does not assert any objections to the language as quoted, the court will continue the motion to allow Plaintiff to file the Agreement with the court.

Plaintiff argues that Defendant has breached three terms of the Agreement and seeks an order granting relief as set forth in the Proposed Order. However, Plaintiff has not filed the Proposed Order with the court. For this reason, and the reason described above, the court will continue the motion to allow Plaintiff to file the Agreement and the Proposed Order. The court will nonetheless address the merits of the motion.

1. Failure to make payment of $862,000 for the benefit of the parties’ children, to be deposited with a fiduciary selected by Plaintiff from the membership roster of the Professional Fiduciary Association of California (PFAC) within 90 days of Defendant’s last child support payment;

2. Failure to make child support payments in accordance with the child support agreement between the parties until the parties’ youngest child turns eighteen (18);

The child support payments were secured by a Deed of Trust on the Subject Property in the sum of $350,000. The $600,000 settlement payment to Plaintiff was secured by a Second Deed of Trust to the Subject Property in the sum of $600,000. Plaintiff appears to seek an order permitting her to foreclose on the Subject Property.

Addressing only one of the three foregoing breaches, Defendant argues the motion must be denied because he complied with the payment of $862,000 to the parties’ children. In support, Defendant provides his declaration and the declaration of the parties’ son, Max Christiansen Cohen, to argue that he satisfied the $862,000 payment by transferring his interest in the Subject Property to his son with the consent and approval of his sister (the parties’ daughter).

Given that the Agreement and the Proposed Order have not been filed with the court, the court defers its ruling to allow the court to review the Agreement and Proposed Order. However, issues related to the appropriate remedy remain. Plaintiff does not challenge the fact that a transfer was made. Plaintiff also does not challenge the value of the Subject Property, i.e., that the property was worth $862,000, such that it would satisfy Defendant’s obligation under the Agreement. If there is a violation of the agreement, what do the parties propose as the remedy? The court will hear from the parties.

Given the foregoing, the motion is CONTINUED to June 24, 2024. Plaintiff is ordered to file and serve the Agreement and Proposed Order no later than 5 court days before the hearing.

Kerry Bensinger

Judge of the Superior Court