Judge: Michael E. Whitaker, Case: 22SMCV00758, Date: 2024-02-07 Tentative Ruling

Case Number: 22SMCV00758    Hearing Date: February 7, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

Plaintiff and Cross-Defendant Northwestern Engineering Company (“Plaintiff”) and Defendant and Cross-Complainant Joseph Shemaria (“Defendant”) are adjacent property owners. 

Case number SC128312, which was filed on November 1, 2017, and is nearing trial, involves a dispute over a portion of the pathway between the properties, located toward the front of the properties, where Plaintiff has historically kept items in storage. 

Case number 22SMCV00758, which was filed on May 24, 2022, concerns a fence located on the pathway toward the back of the properties. 

Defendant has filed motions in both cases seeking a judgment confirming or enforcing the settlement agreement purportedly reached between himself and Plaintiff orally in open court on January 10, 2023.  Plaintiff opposes, on the basis that the parties did not agree to all material terms of the settlement, and Defendant replies.

ANALYSIS

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.” (Code Civ. Proc., § 664.6.) In ruling on a motion to enter judgment, the court acts as a trier of fact. The court must determine whether the parties entered into a valid and binding settlement. To do so, the court may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.)

The issue on a motion to enforce settlement agreement under Code of Civil Procedure section 664.6 is whether the parties entered into a valid and binding settlement agreement. (See Viejo v. Bancorp. (1989) 217 Cal.App.3d 200, 209, fn. 4 [“a court's power to make factual determinations under section 664.6 is generally limited to whether the parties entered into a valid and binding settlement agreement”].)  In other words, the only issue before the court is whether an agreement exists; not whether the agreement has been breached.

Attached as Exhibit “D” to the Shemaria declaration in support of the motions is a copy of a court transcript from case number SC128312 on January 10, 2023, where the parties represented to the Court on the morning of trial that they had reached a settlement and read into the record the terms as follows:

MR. HUBER: WE HAVE SOME TERMS THAT WE'D LIKE TO GET ON THE RECORD SINCE THE PARTIES ARE HERE, AND THEY'LL BE SUBJECT TO OBVIOUSLY A FORMAL AGREEMENT TO FOLLOW. BUT MR. PARTIDA HAS THE TERMS, AND HE'LL JUST READ THEM INTO THE RECORD, WE'LL GET THE PARTIES TO AGREE AND BE DONE.

THE COURT: OKAY.

MR. PARTIDA: GOOD MORNING, YOUR HONOR.

THE PLAINTIFF/CROSS-DEFENDANT NORTHWESTERN ENGINEERING IS TO PAY DEFENDANT/CROSS-COMPLAINANT JOSEPH SHEMARIA A ONE-TIME PAYMENT OF $39,800 WITHIN 30 DAYS OF EXECUTION OF THE FORMALIZED WRITTEN AGREEMENT. 

PLAINTIFF IS TO ENTER INTO A WRITTEN LEASE WITH THE DEFENDANT JOSEPH SHEMARIA FOR SEVEN FIVE-YEAR TERMS TOTALING 35 YEARS TO USE THE BREEZEWAY FOR INGRESS AND EGRESS, TEMPORARY STORAGE AND TO THROW AWAY TRASH AT THE SPEEDWAY OVER MR. SHEMARIA'S PROPERTY.

PLAINTIFF TO PAY $200 A MONTH FOR THE LEASE.

PLAINTIFF IS TO INDEMNIFY JOSEPH SHEMARIA FOR ITS USE OF THE BREEZEWAY AND ANY USE OVER THE PROPERTY.

PLAINTIFF TO NAME JOSEPH SHEMARIA AS AN ADDITIONAL INSURED ON ITS INSURANCE POLICY.

PARTIES ARE TO SPLIT THE COST OF MAINTENANCE OF THE CONCRETE AND GATE ONLY.

DISMISSAL WITH PREJUDICE OF ALL ACTIONS, INCLUDING PLAINTIFF'S MOST RECENT COMPLAINT.

THERE'S A GENERAL RELEASE WAIVER OF CIVIL CODE 1542: EACH PARTY IS TO BEAR THEIR OWN FEES AND COSTS, AND THERE WILL BE A MEMORIALIZED FORMAL WRITTEN AGREEMENT OF THESE TERMS AND LEASE AGREEMENT.

MR. HUBER: I JUST HAVE SOMETHING TO ADD TO THAT, YOUR HONOR. 

THE COURT: SURE.

MR. HUBER: COUPLE THINGS: ON THE BREEZEWAY, THAT WE WOULD ALSO BE USING IT FOR MAINTENANCE OF THE BUILDING, BUT I THINK THAT'S A TERM WE CAN WORK OUT.

AND THEN WE ALSO HAVE A BACK ISSUE, I FORGOT TO MENTION THAT, WITH THE BACK GATE BEING REMOVED, OR THE PARTIES TO FIGURE OUT THE BEST WAY TO ALLOW ACCESS TO THE DUMPSTER IN THE REAR.

MR. PARTIDA: SURE.

MR. HUBER: THAT'S THE SUBJECT OF THE SECOND LAWSUIT, THAT MR. SHEMARIA WILL ALLOW ACCESS TO THE DUMPSTER OR REMOVE THE GATE. BUT THAT'S AN IMPORTANT PART OF THE SETTLEMENT, BUT WE CAN WORK OUT THE PARTICULARS OF IT.

MR. SHEMARIA: I UNDERSTOOD THEY WERE GOING TO PUT IN A GATE, NOT GOING TO REMOVE IT.

MR. PARTIDA: RIGHT. WE TALKED ABOUT A BARNYARD TYPE OF THING ON THE FENCE, BUT WE –

MR. HUBER: YEAH, I THINK –

THE COURT: SO THEY'RE GOING TO INSTALL A GATE?

MR. PARTIDA: RIGHT.

THE COURT: WHO'S "THEY"?

MR. PARTIDA: NORTHWESTERN.

THE COURT: AND WHEN WILL THAT BE DONE? I DIDN'T HEAR.

MR. HUBER: DO YOU WANT TO SPEAK TO THAT? HE'S –

THE COURT: WHO AM I HEARING FROM?

MR. HUBER: THIS IS MY CLIENT, MR. ADELSTEIN. HE'S THE REPRESENTATIVE –

THE COURT: GOOD MORNING.

MR. ADELSTEIN: GOOD MORNING.

THE COURT: OKAY.

MR. HUBER: WE'RE JUST TALKING ABOUT THE BACK PORTION, AND WE -- WE WANTED IT TO COME DOWN, THE BACK PART OF THE GATE THAT IS CLOSEST TO THE DUMPSTER. BUT WE NEED ACCESS, AND I DON'T KNOW WHAT THAT LOOKS LIKE. I DON'T KNOW IF THAT'S A GATE OR WE'RE TEARING THE GATE  DOWN.

MR. ADELSTEIN: A GATE WOULD MAKE IT VERY LOGISTICALLY DIFFICULT FOR ACCESS TO EGRESS GIVEN THE HEIGHT, RIGHT. AND IF IT IS SIMPLY REMOVED, IT DOESN'T CHANGE -- IT RETURNS AS TO THE STATUS QUO.

MR. HUBER: THE PORTION THAT –

MR. ADELSTEIN: JUST THE LAST SECTION, BECAUSE THERE'S ALREADY A STRUCTURAL –

MR. PARTIDA: CAN YOU JUST PUT A BARNYARD RAIL AND SLIDE THAT OVER WHEN YOU NEED TO GET OUT, OR LEAVE IT OPEN?

MR. HUBER: WHAT DO YOU THINK, JOE?

MR. SHEMARIA: I DON'T KNOW. BECAUSE THE PARKING THAT OPENS ONTO THE PARKING OF APARTMENT 3, AND SOMETIMES THEY HAVE TWO VEHICLES, AND SO I GOT TO ALLOW FOR A SECOND CAR TO BE PARKED THERE, IF THERE IS ONE.

MR. HUBER: I THINK TAKING JUST THAT LITTLE PIECE –

THE COURT: SO MAYBE THE PARTIES NEED TO GO OUT THERE AND TAKE A LOOK AND WE'LL JUST BUILD IN TIME. IT SOUNDS LIKE YOU'RE GOING TO WORK SOMETHING OUT REGARDING IT?

MR. PARTIDA: YES, YOUR HONOR.

MR. HUBER: YES.

THE COURT: THE NEED FOR A GATE IS WHAT?

MR. SHEMARIA: IT'S TO ACCESS THE TRASH DUMPSTER.

MR. HUBER: SO THERE'S A SECOND LAWSUIT, YOUR HONOR, THAT WAS FILED LAST YEAR. AND IT'S NOT CONSOLIDATED OR RELATED TO THIS ONE FORMALLY, BUT THE ISSUE IS ACCESS BY MY CLIENT TO A DUMPSTER THAT GOES OVER A PORTION –

THE COURT: NO. I UNDERSTAND THAT. BUT IT SOUNDS LIKE ONE SIDE SAYS "WE NEED A GATE," ONE SIDE SAYS "WE DON'T."

MR. PARTIDA: I THINK THE ISSUE IS -- AND WE CAN WORK IT OUT. EITHER WE WILL REMOVE THE FENCE, IS WHAT THEY'RE ASKING, OR JUST TO ADD A SLIDING GATE, LIKE A BARNYARD STYLE GATE, SO THAT THE GATE IS STILL THERE WHEN IT'S NOT IN USE.

THE COURT: SO THAT'S THE ONE OPEN ITEM THAT YOU'RE GOING TO CONTINUE TO NEGOTIATE?

MR. HUBER: CORRECT.

THE COURT: ARE YOU CONFIDENT YOU CAN WORK THAT OUT, MR. SHEMARIA, ONE WAY OR THE OTHER?

MR. SHEMARIA: YES.

THE COURT: OKAY. MR. -- IS IT, ADELSTEIN?

MR. HUBER: IT'S ADELSTEIN, YES.

THE COURT: YOU BELIEVE YOU CAN WORK THAT LAST PIECE OUT?

MR. ADELSTEIN: YES.

THE COURT: OKAY. ALL RIGHT. SO YOU'LL CONTINUE TO TALK ON THAT.

SO, COUNSEL, HOW LONG DO YOU WANT FOR AN OSC RE: DISMISSAL? IT'S UP TO YOU.

(Ex. D to Shemaria Decl., emphasis added.)

            Thus, the record demonstrates the parties did not reach a complete meeting of the minds with regard to either the breezeway at issue in case number SC128312 or the gate at issue in case number 22SMCV00758. 

            With regard to the gate at issue in case number 22SMCV00758, the parties clearly did not come to any agreement. 

            And although the parties appeared to come to agreement on several terms with respect to the breezeway at issue in case number SC128312, the Court finds there was not a complete settlement agreement reached there either.  For example, the parties did not agree on whether Plaintiff could use the breezeway for maintenance of the building.  Moreover, the outstanding gate issue appears material to some of the terms to which the parties did appear to agree.  For example, the parties agreed to split the cost of the maintenance of the gate, which will vary, depending on what type of gate, or whether a gate remains at all.  Further, the parties have indicated the gate impacts egress, as well as access to the dumpster.   

            Therefore, the parties ultimately did not have a complete meeting of the minds with regard to either the breezeway at issue in case number SC128312 or the gate at issue in case number 22SMCV00758.

CONCLUSION AND ORDER

            For these reasons, the Court denies Defendant’s motions to confirm/enforce settlement.

            Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED:  February 7, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court