Judge: Kevin A. Enright, Case: 37-2021-00022319-CU-BC-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00022319-CU-BC-CTL BENITEZ VS SARABIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Pier G. Sarabia's Motion to Adjudicate Terms of the Settlement is GRANTED in part and DENIED in part. Defendant's Alternative Motion to Set Aside the Settlement is DENIED.

Preliminary Matters Defendant's objections to Plaintiff's declaration are OVERRULED.

The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the reply declaration of Defendant Pier G. Sarabia. (ROA 78.) Background This action concerns the ownership interests and management of residential real property located at 3720 Clinton Street in San Diego (the 'home'). On May 20, 2021, Plaintiff filed her Complaint alleging five causes of action. (ROA 1.) On January 13, 2023, the parties participated in a settlement conference before the Court. (ROA 41.) The parties entered into a settlement agreement (settlement) providing that the Court would retain jurisdiction to enforce the settlement. (Ibid.; ROA 69, Sarabia Decl., Ex. A.) It is undisputed the settlement dated January 13, 2023 was signed by the parties and their respective counsel. (ROA 69, Sarabia Decl., Ex. A.) The settlement 'shall be enforced pursuant to the Code of Civil Procedure § 664.6 as well as the terms of the settlement itself. Furthermore, this settlement consists of only what is said on the record or written herein.' (Id. at p. 1, ¶ 8.) The settlement further provides if there are any disputes of any kind or any enforcement needed, 'any party can come back to Judge Enright for a hearing or hearings and his ruling shall be final, there will be no appeals, and all parties give up the right to appeal. . . .' (Id. at p. 1, ¶ 10.) On April 5, 2023, the Court entered dismissal of the entire action with prejudice. (ROA 59.) On October 24, 2023, Defendant filed the instant motion. (ROA 70.) Analysis Calendar No.: Event ID:  TENTATIVE RULINGS

3046225 CASE NUMBER: CASE TITLE:  BENITEZ VS SARABIA [IMAGED]  37-2021-00022319-CU-BC-CTL Jurisdiction The Court retains jurisdiction to enforce a settlement under CCP § 664.6 even after dismissal of the action, 'but only if the parties requested such a retention of jurisdiction before the dismissal.' (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) The request to retain jurisdiction 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. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.) Here, the written settlement agreement dated January 13, 2023 was signed by the parties as well as their respective counsel and provides that any party can come back to the Court if there are any disputes of any kind or any enforcement needed. (ROA 69, Sarabia Decl., Ex. A.) Additionally, at the January 13, 2023 settlement conference, the terms of the settlement were read in open court, each party indicated on the record that they understand and agreed to the terms as stated, and the Court retained jurisdiction to enforce the settlement. (ROA 41.) The Court did not enter dismissal without prejudice until April 5, 2023. (ROA 59.) The Court thus retains jurisdiction under CCP § 664.6 even after the dismissal.

Motion to Adjudicate Terms of the Settlement Defendant moves for an order the adjudicate terms of the settlement agreement under CCP § 664.6, which 'provides a summary procedure by which a trial court may specifically enforce an agreement settling pending litigation without requiring the filing of a second lawsuit.' (Kirby v. Southern Cal. Edison Co. (2000) 78 Cal.App.4th 840, 843.) CCP § 664.6(a) provides in relevant 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.' (Ibid.) 'A court ruling on a motion under Code of Civil Procedure section 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 the 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, 1182-1183, citations omitted.) The Court is permitted 'to entertain challenges to the actual terms of the stipulation, that is, whether there actually was a settlement ... and to interpret the terms and conditions to settlement.' (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.) CCP § 664.6's 'express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions to settlement.' (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889, citation omitted.) As noted in Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 118: 'A settlement agreement is simply a contract.' (Hernandez v. Board Education (2004) 126 Cal.App.4th 1161, 1176, 25 Cal.Rptr.3d 1 (Hernandez ).) 'A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.' (Civ. Code, § 1636.) When interpreting a written contract, we generally ascertain the intention of the parties from the writing alone, if possible. (Civ. Code, § 1639.) A contract, however, 'may be explained by reference to the circumstances under which it was made, and the matter to which it relates.' (Civ. Code, § 1647.) Calendar No.: Event ID:  TENTATIVE RULINGS

3046225 CASE NUMBER: CASE TITLE:  BENITEZ VS SARABIA [IMAGED]  37-2021-00022319-CU-BC-CTL 'Where general and specific provisions are inconsistent, the specific provision controls.' (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 12 citing Code Civ. Proc., § 1859.) While the court may interpret the terms of the parties' settlement agreement, 'nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.) Here, the settlement includes fourteen numbered terms. (ROA 69, Sarabia Decl., Ex. A, p. 2.) Defendant raises disputed factual issues as to what he contends are 'implied terms' of Items 2, 5, 6, and 12 of the settlement and seeks an order adjudicating these Items as set forth below.

Items 2 and 12 Item 2 of the settlement provides: 'Parties agree not to sell subject property for minimum of five (5) years.' (ROA 69, Sarabia Decl., Ex. A, p. 2.) Item 12 provides: '[Defendant] Sarabia has control over financial decisions over house such as refinancing.' (Ibid.) Defendant requests the Court adjudicate Item 2 to include an implied term that the property (or a portion thereof) can be sold in the event Defendant no longer has the financial ability to continue paying the mortgage and other property expenses. Defendant also requests the Court adjudicate Item 12 to include the implied term that Defendant's control over financial decisions over the home includes the authority to sell the home or a portion of the home now instead of the five-year waiting period set forth in the settlement.

These requests are denied. No evidence was presented that Defendant's financial condition was contemplated by the parties in delaying the sale of the property or that Defendant's control over financial decisions concerning the home would include the ability to control Plaintiff's 20% interest. Because these implied terms were not part of the settlement, the Court cannot enforce these terms as part of the settlement of this action. '[N]othing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' (Leeman, supra, 236 Cal.App.4th at p. 1374.) Entering judgment in this regard would require the court to modify the express terms of the settlement, which can only be done upon mutual consent of the parties.

(Id. at p. 1375.) Moreover, '[a] contract is read as a whole, 'so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.' Contracts 'are construed to avoid rendering terms surplusage.' ' (Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 727, citations omitted.) Interpreting Item 12 to include an implied term authorizing the Defendant to sell the home or Plaintiff's interest would render as surplusage Item 1, which the Court finds is a material term of the settlement that vests 20% of the title to the home to Plaintiff. In contrast, the implied term requested would effectively give Defendant complete title to the home, which the Court finds would be contrary to the parties' intent in the settlement. This implied term would also render as surplusage Item 2, which the Court finds is also a material term of the settlement.

Items 5 and 6 Item 5 of the settlement provides: 'Both parties shall agree on who rents the 3rd Bedroom.' (ROA 69, Sarabia Decl., Ex. A, p. 2.) In turn, Item 6 provides: 'Tenant of 3rd Bedroom will pay rent directly to [Defendant] Sarabia.' (Ibid.) Defendant requests the Court adjudicate Items 5 and 6 to include implied terms that Plaintiff will keep the third bedroom clean and orderly and will allow prospective tenants to view and inspect the third bedroom and common areas of the house at a mutually agreed-upon convenient time for her and the prospective tenant. Defendant has not provided evidence that these implied terms were discussed Calendar No.: Event ID:  TENTATIVE RULINGS

3046225 CASE NUMBER: CASE TITLE:  BENITEZ VS SARABIA [IMAGED]  37-2021-00022319-CU-BC-CTL during the settlement negotiations or were otherwise contemplated in the settlement. However, the Court finds the intent of Plaintiff and Defendant in entering into Items 5 and 6 of the settlement was to provide Defendant rent from the third bedroom to help him pay the mortgage and other expenses for the home.

Defendant has provided evidence that the parties' intent in this regard has not been effectuated. (ROA 69, Sarabia Decl., ¶¶ 12-13; ROA 78, Sarabia Reply Decl., ¶¶ 2, 9.) The Court finds Items 5 and 6 regarding the rental of the third bedroom necessarily imply the bedroom is being offered to prospective tenants, kept clean and orderly, and made available to prospective tenants to inspect. Accordingly, Defendant's motion is granted as to these terms.

Defendant also requests that the Court adjudicate Items 5 and 6 to include the implied term that Plaintiff's brother or other relatives cannot live in the home rent-free. Based on the intent of the parties as set forth above, the Court finds Items 5 and 6 regarding the rental of the third bedroom necessarily implies that no one, not just Plaintiff's brother or other relatives, will live in the bedroom rent-free.

Accordingly, Defendant's motion is granted to this term, as modified to provide that no one can live in the third bedroom of the home rent-free.

Motion to Set Aside the Settlement Alternatively, Defendant moves to set aside the settlement under CCP § 473(b), which states: 'The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken....' CCP § 473(b) contains two distinct provisions for relief: one makes relief discretionary with the court and the other makes relief mandatory. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 197 Cal.Rptr.3d 856, 859.) However, under either provision, there is a six-month time limitation.

On January 13, 2023, the parties entered into the settlement. (ROA 69, Sarabia Decl., Ex. A.) On April 5, 2023, the Court entered dismissal of the entire action with prejudice. (ROA 59.) Defendant did not file the instant motion until October 24, 2023, which is over six months after both the settlement and the dismissal with prejudice. (ROA 70.) As a result, Defendant's set aside motion is time-barred. Moreover, Defendant has not met his burden to set aside the settlement under CCP § 473 on the grounds of surprise or that the terms of the settlement cannot be accomplished. Accordingly, Defendant's motion to set aside the settlement is denied.

Defendant's Settlement Proposals The Court declines to consider the two alternative settlement proposals from Defendant on the grounds that considering these proposals is outside the Court's authority under CCP §§ 664.6 and 473(b). These proposals are not terms of the settlement and cannot be enforced by the Court.

Conclusion Based on the foregoing, Defendant Pier G. Sarabia's Motion to Adjudicate Terms of the Settlement is granted in part and denied in part. Defendant's Motion to Set Aside the Settlement is denied.

If this tentative ruling is confirmed, the Minute Order will be the order of the Court. No formal order is required Calendar No.: Event ID:  TENTATIVE RULINGS

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