Judge: Michael E. Whitaker, Case: 23SMCV05380, Date: 2025-05-14 Tentative Ruling

Case Number: 23SMCV05380    Hearing Date: May 14, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute concerning a remodeling project. 

On November 13, 2023, Plaintiff Scanlon Construction, Inc. dba A-1 Construction (“Plaintiff”) brought suit against Defendants Patrick Crowley and Cathleen Summers (“Defendants”) alleging five causes of action for (1) breach of contract; (2) account stated; (3) open book account; (4) reasonable value; and (5) mechanic’s lien.

Plaintiff now moves for an order enforcing the parties’ settlement and for attorneys’ fees in the amount of $4,190.  Defendants oppose the motion and Plaintiff replies.

ANALYSIS

A.    Motion to Enforce Settlement

“Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement.”  (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.)  In particular, 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.) 

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”]; see also Hines v. Lukes, supra, 167 Cal.App.4th at p. 1182 [“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”].)  In other words, the only issue before the court is whether an agreement exists concerning all of the material terms; not whether the agreement has been breached.  (See Hines v. Lukes, supra, 167 Cal.App.4th at p. 1182  [“A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms”].)  “If the court finds that the parties failed to agree to all material terms, there is no enforceable settlement so the court must deny the motion for entry of judgment pursuant to a settlement.”  (Id. at p. 1185.)

Moreover, the Hines v. Lukes court stated:  “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, supra, 167 Cal.App.4th at pp. 1182–1183 [cleaned up].)

Attached as Exhibit 2 to the Declaration of Geoffrey G. Melkonian is a copy of a fully executed Settlement Agreement signed by Plaintiff on June 25, 2024 and signed by Cathleen Summers and Patrick Crowley on July 10, 2024.

Pursuant to the terms of the Settlement Agreement, Defendants agree to pay Plaintiff $71,500 in exchange for waivers and releases as to Plaintiff’s own Mechanic’s Lien and all subcontractors who worked on the project, except for Heritage Cabinets, to whom Plaintiff is merely obligated to deliver a letter of instruction to release Defendants, and Defendants shall have the right to inspect and approve the condition of the cabinets to confirm suitability for installation.  Further, within five (5) days of receipt of the settlement payment, Plaintiff shall dismiss the Action with Prejudice.  Each party is to bear its own fees and costs.

            Thus, the Court finds that the parties entered into a valid and binding settlement agreement.

            Defendants oppose the motion on three grounds: (1) Defendants have never been properly served with the summons and complaint in this matter and Defendants claim the Settlement Agreement was entered into before Defendants became aware the action was filed; (2) the Settlement Agreement lacks a provision retaining the Court’s jurisdiction to enforce the settlement agreement pursuant to Code of Civil Procedure section 644.6; and (3) Plaintiff has not established that the conditions precedent to payment, namely that Defendants approve the condition of their cabinets, has yet been satisfied.

            Taking Defendants’ last argument first, the only question before the Court on a motion to enforce is whether a valid and binding settlement agreement exists.  If so, the Court enters judgment pursuant to the terms of that agreement.  Whether any party breached that agreement is beyond the scope of a motion to enforce the settlement agreement.

            As for Defendants’ second argument, it is immaterial that the parties’ agreement does not provide for the retention of the Court’s jurisdiction under Code of Civil Procedure section 644.6   because the action is still pending.  Jurisdictional issues arises only after the case has already been dismissed.

            However, regarding Defendants’ first argument, the Court agrees that it cannot enter judgment before Defendants have been served.  A successful motion to enforce settlement would result in a judgment against Defendants pursuant to the terms of the Settlement Agreement.  Here, there is no proof of service indicating Defendants were served with the summons and complaint.

            Plaintiff argues in reply that service of the summons and complaint is not necessary because Defendants consented to the personal jurisdiction of this Court. 

            “A general appearance by a party is equivalent to personal service of summons on such party.”  (Code Civ. Proc., § 410.50, subd. (a).)  “A general appearance can make up for a complete failure to serve a summons.  An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.”  (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [cleaned up; emphasis added].) 

“The rule that a general appearance waives objections to defective service is actually a matter of forfeiture, not waiver.   Service of summons is required in order to give the defendant notice of the action, as due process demands.  But once the defendant appears in the action, this purpose has been served.   A defendant has a right to demand that process be issued against him in the manner provided by law, but if process is not so issued and he appears generally without making objection, such appearance, being the purpose of the process, confers jurisdiction of the person and the court is empowered to act in the premises.”  (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1147 [cleaned up].)

            Here, although Defendants list their appearance in opposing the motion as a special appearance, and Defendants have raised two jurisdictional issues (service and retention of section 644.6 jurisdiction), they have also raised a substantive argument regarding the terms of the settlement agreement.  In contesting the merits of the motion to enforce the settlement agreement and addressing the terms of the agreement, Defendants have effectively made a general appearance, thereby consenting to the jurisdiction of this Court and forfeiting their right to challenge personal jurisdiction.

B.    Attorneys’ Fees

Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys’ fees when authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).)  Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”  (Civ. Code, § 1717, subd. (a).)

The Code of Civil Procedure defines the “prevailing party” as follows:

[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

Here, the Court will issue judgment in Plaintiff’s favor in the amount of $71,500, pursuant to the terms of the Settlement Agreement.  As such, Plaintiff is the “prevailing party.”

Section 7 of the Settlement agreement provides:

7.         Fees and Costs.  The Parties shall each bear their own fees and costs incurred in connection with the drafting of this Agreement.  In the event of any controversy or dispute arising out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party reasonable expenses, including, without limitation, attorneys’ fees and reasonable costs incurred.

(Ex. 2.)

            Thus, Plaintiff is generally entitled to its attorneys’ fees.  Plaintiff seeks $4,190, representing $2,200 to prepare the Motion to Enforce Settlement; $825 to prepare the Reply; $1,105.00 to prepare for and attend the hearing on the Motion; representing a total of 7.5 hours at an hourly rate of $550; plus $60 for the filing fee.

            The Court grants in part Plaintiff’s request for attorneys’ fees and awards $3,360 in attorneys’ fees, representing 6 hours of attorney time spent in connection with the instant motion plus the $60 filing fee.

CONCLUSION AND ORDER

            Finding a valid and binding settlement agreement exists, the Court grants Plaintiff’s motion to enforce the settlement.  Consequently, the Court will enter a Judgment that sets forth the material terms of the parties’ agreement. 

            Further, the Court grants in part Plaintiff’s requests for attorneys’ fees and awards Plaintiff $3,360 in attorneys’ fees and costs spent in bringing the instant motion.

            Plaintiff shall file and serve a proposed Judgment consistent with the Court’s ruling on or before May 28, 2025.  Defendants shall file and serve any objections to the proposed judgment on or before June 4, 2025.

            Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  May 14, 2025                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court