Judge: Mel Red Recana, Case: BC515423, Date: 2024-07-16 Tentative Ruling

Case Number: BC515423    Hearing Date: July 16, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             July 16, 2024

Moving Parties:           Plaintiff Raul Sarmiento

Responding Party:       None

Motion to Enforce Settlement

The court has considered the moving papers.

The court GRANTS Plaintiff’s Motion to Enforce Settlement.

Background

            The dispute involves the partition of the real property located at 1109 North Avenue 64, Los Angeles, CA 90042. On July 18, 2013, Plaintiff Raul Sarmiento (“Plaintiff”) filed the complaint against Defendant Irma Castillo (“Defendant”).

            The parties participated at a voluntary mediation. The mediation was held on September 12, 2014. The Parties agreed to sell the subject property. Defendant agreed in writing to settle the case. The Parties agreed that Castillo would have 120 days to refinance or buy-out Plaintiffs interest with certain credits and that Sarmiento would release any interest in the business known as VIVA BAGS. The settlement agreement was finalized and executed on April 22, 2015.

            On April 29, 2016, the Court ordered dismissal. 

            On May 28, 2024, Plaintiff filed the instant motion.

            On July 8, 2024, Plaintiff filed a notice of non-opposition. As of July 12, 2024, no opposition has been filed.

Legal Standard

            Code of Civil Procedure section 664.6 provides that “[i]f 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.” In ruling on a motion to enter judgment the trial court acts as a trier of fact. It must determine whether the parties entered into a valid and binding settlement. To do so it may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.) However, “the power of the trial court under section 664.6 ‘is extremely limited.’” (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 134.)

Discussion

Plaintiff moves this court for an order enforcing the Settlement Agreement and entering an order to sell the subject real property and disbursing sale proceeds pursuant to the Settlement Agreement between the parties.

The Settlement Terms are as follows:

“Dismissal with Prejudice: SARMIENTO shall dismiss the ACTION against CASTILLO in its entirety and with prejudice, within SEVEN (7) calendar days of receipt of the signed settlement agreement. This Settlement Agreement, as set forth in this is intended to bind all parties· hereto, pursuant to California Code of Civil Procedure Section 664.6.: In the event of any default by any party, of any type of the terms and/or provisions, of this Settlement, the court shall retain jurisdiction pursuant to section CCP 664.6. SARMIENTO and or CASTILLO shall be entitled to recover any and all costs, including attorneys' fees; incurred in connection with enforcing the terms and provisions of this Settlement Agreement.” (emphasis added.) (Galindo Decl. ¶ 4; Ex. A at p. 3.)

“Real Property:

In consideration of the AGREEMENT, The Parties agree to the following: The subject real property located at 1109 North Avenue 64, Los Angeles, CA 90042 (hereinafter the "Property''), shall be appraised by an independent appraiser which has been identified as Donald Chambers 310-791-6172, unless the Parties otherwise agree in writing. The cost of the appraisal will be split equally and paid when due. The appraiser has not worked for either party or their respective Attorneys and has no relationship with anyone associated with this case. The appraiser is to determine the fair market sales price of the Property. Upon receipt of the appraisal CASTILLO shall have one hundred (120) days to make a good faith effort to purchase SARMIENTO's equitable interest. The Equitable Interest shall be calculated as set forth in the following section. After the on hundred twenty (120) day period has lapsed and if CASTILLO has not closed on the refinance escrow the subject property shall be listed forthwith at a listing price equal to 110% of the appraised value with a 5% reduction of the listing price every 30 days until sold, the Parties agree otherwise in writing or until the price is determined to be below the Credit to Castillo, set forth below. The Parties shall/is the subject real property with their daughter Erika, a licensed real estate agent to sell the proper and be paid the usual and customary commission therefrom; however, all listing agreements an purchase offers shall be reviewed and approved by the Parties. . When the Parties agree to accept a offer, CASTILLO shall have days thereafter to exercise a first right of refusal to purchase SARMIENTO'S "net proceed or equitable interest" calculated upon the same terms as the acceptable offer. During this period CASTILLO shall have exclusive right to use and possession and shall not further encumber the Property without written consent from SARMIENTO. CASTILLO shall also maintain the subject property and keep the First mortgage payments current. Castillo has disclosed that the Second Mortgage is in arrears and the property taxes for 2013 and 2014 have not been paid.” (Id. at Ex. A p. 5.)

“Credit to CASTILLO The Parties agree that CASTILLO shall receive a credit of $230,000.00. This amount was agreed to after numerous negotiations and exchange of documentation. It is a compromised amount from disputed claims and deemed to be fair between the Parties. The $230,000.00 credit shall be applied after costs of sale are deducted from the gross selling price and other liens and encumbrances. The cost of sale shall be the cash sale price less payment of any liens, encumbrances, mortgages, taxes, commissions, escrow fees and cost and then the Credit of $230,000 to Castillo, and the balance thereafter shall be the "Net Proceeds or Equitable Interest. " The net proceeds thereafter shall be split 50-50.” (Id. at Ex. A p. 6.)

The terms show that the parties entered into an agreement to sell the disputed property and split the profits in half. However, Defendant has failed attempts to refinance the subject real property and /or list the subject property for sale. (Galindo Decl. ¶ 5.) Nevertheless, the terms show that the parties agreed that the court shall retain jurisdiction pursuant to section CCP 664.6. Thus, Plaintiff has met his burden under CCP section 664.6. Notably, Plaintiff has not filed an opposition.

Accordingly, the motion is GRANTED.

It is so ordered.

Date:   July 9, 2024

______________________

Mel Red Recana

Judge of the Superior Court