Judge: Martha K. Gooding, Case: 18-01003039, Date: 2023-07-20 Tentative Ruling

1) Motion to be Relieved as Counsel of Record

2) Motion to Enforce Settlement

3) Order to Show Cause re: Dismissal on Settled Case

Motion #1 – The Motion by Osborne & Plasse, by Jeffrey Osborne, counsel of record for Plaintiff Sam Osadche, for an order relieving it as counsel for Plaintiff is GRANTED.

Counsel is to submit a revised proposed order showing no trial date.  [See ROA #698.]

The Court will sign the revised order.  Counsel is cautioned that the order relieving counsel will NOT be effective until the filing of a proper proof of service of the signed order upon Plaintiff and all other parties.

Moving party is ordered to give notice of this ruling.

Motion #2 – The Motion by Defendants Gregory Scally and Kim Lam (Collectively “Defendants) motion for an order enforcing their settlement with Plaintiff Sam Osadche is GRANTED.  The Court orders Plaintiff to execute and return to Defendants a release of his mechanic’s lien. The Court also will dismiss the complaint without prejudice but retains jurisdiction to enforce the settlement under Code Civ. Proc. §664.6.

Section 664.6 provides, in pertinent part: “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, subd. (a).)

There must be “pending litigation” to enforce a settlement under section 664.6. (Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 12:952.1.) Or, if requested by the parties, the court may retain jurisdiction over them to enforce the settlement until performance in full of its terms, even after the case has been dismissed. (Cal. Judges Benchbook Civ. Proc. Before Trial at § 5.59.)

Here, Defendants have presented evidence of a written “Settlement Term Sheet” whereby they and Plaintiff, among others, agreed “to settle in the total sum of $78,341.10,” to be paid to Plaintiff. (Edwards Decl. at ¶ 1, Exh. 1.)

The settlement agreement provides that upon receiving the amounts due under the settlement agreement, Plaintiff will dismiss his Complaint and record a release of the mechanic’s lien.  The agreement also provides for the Court to retain jurisdiction after dismissal to enforce the settlement agreement.  (Id. at §2.1 and attached Settlement Term Sheet at §§ 1(a), 1(c), and 1(d).)

Plaintiff has been paid all the required amounts, but he continues to refuse to sign the release of mechanic’s lien.  [Edwards Decl., ¶¶ 4-5 and Ex. 2.]

This Court has the power to order Plaintiff to execute the release of mechanic’s lien in order to enforce the settlement agreement under Civil Procedure Section 664.6.  Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1361 (motion to enforce settlement under CCP 664.4 “was, in effect, a request for specific performance of the settlement agreement.”),

Accordingly, the Court grants Defendants’ motion and orders Plaintiff to execute the release of mechanic’s lien. The Court will dismiss the action and retain jurisdiction for further enforcement of the settlement agreement as may be necessary.

Defendants are ordered to submit a proposed order within 5 days.

Moving defendants are ordered to give notice of this ruling.

[3]  OSC re Dismissal:  The Court vacates the OSC re dismissal of settled case and sets a Status Conference for August 28, 2023, at 9:00 a.m.  Defendants Scally and Lam are ordered to give notice of this ruling.