Judge: Mark H. Epstein, Case: 22SMCV01622, Date: 2022-12-23 Tentative Ruling

Case Number: 22SMCV01622    Hearing Date: December 23, 2022    Dept: R

This is an application to recall a writ of possession.  In the moving papers, defendant contended that he had reached an agreement with the plaintiff to pay money in return for the writ being recalled (or at least not enforced).  He stated that he made the payments but the writ was being enforced anyway.  The court held a hearing and accepted further briefing.  Plaintiff states that defendant was often late in rent and that he began eviction proceedings.  On August 23, 2022, a notice to pay or quit was served.  In October 2022, the parties reached an agreement, confirmed in writing, whereby defendant would make four weekly payments of $26,501.81 each, in return for which plaintiff would dismiss then then-pending UD action.  Defendant made the first payment and was late on the next two.  The fourth payment was not made.  According to plaintiff, there was never an agreement that the matter would be dismissed or the writ would not be enforced unless defendant made all four payments (and timely).  In response, defendant did not deny that the ex parte mis-stated the facts of the case, but said that he would make up the arrears no later than today’s hearing.  In a declaration filed on December 21, 2022, counsel states that all rent due and owing through the end of December 2022 has now been paid.

The court is somewhat at a loss.  To the extent that the parties have reached an accord that if defendant is paid up in full the writ will be recalled, then it would appear that the writ should be recalled.  However, plaintiff has stated that it is not willing to recall the writ because defendant did not make the payments in a timely manner.  The agreement attached to plaintiff’s supplemental papers does emphasize that the payments must be made in full and on time or the action would proceed and there does not seem to be any question but that the payments were late.

On the other hand, plaintiff continued (apparently) to accept the money knowing full well that defendant intended that the money be paid in return for having the writ recalled.  The court will discuss this with the parties. Plaintiff was plainly entitled to say that defendant had violated the agreement and should stop paying money because plaintiff would not agree to recall the writ.  If that occurred, the court would likely enforce plaintiff’s position even if defendant continued to pay notwithstanding plaintiff’s statement.  (Of course, any such payments are not useless; they are credited dollar for dollar against any judgment that might be entered for holdover rent.)  Similarly, the parties were free to agree that if defendant was actually current by December 23, 2022, the writ would be recalled on the “bird in the hand” theory.  If they did that, it would appear that defendant is current and the writ ought to be recalled.  We might be in one of those two places or we might be in the middle.  The court will inquire.

At issue will be whether there were clear communications between the parties as to what plaintiff required to agree to recall the writ and whether defendant complied.