Judge: Michael E. Whitaker, Case: SC128579, Date: 2023-11-17 Tentative Ruling

Case Number: SC128579    Hearing Date: November 17, 2023    Dept: 207

TENTATIVE RULING

            This case arises from a dispute over the ownership of a painting, titled “1963 Tribute to Marilyn” by artist Brett-Livingstone Strong.         

            On September 13, 2023, the parties appeared before the Court to determine whether Plaintiff David Phong Ngo and Cross-Complainant Darrin Ngo (collectively, the “Ngo Parties”) are entitled to an order enforcing the settlement.

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 was whether an agreement exists; not whether the agreement has been breached.

Once the Court finds such a settlement agreement exists, “the court, upon motion, may enter judgment pursuant to the terms of the settlement.”  (Code Civ. Proc., § 664.6, subd. (a).)  “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.”

At the September 13 hearing, the Court determined that in March 2020, a settlement agreement was reached among the Ngo Parties; Defendant, Cross-Complainant, and Cross-Defendant Sage Robinson and Katherine D. Robinson (collectively, “the Robinson Parties”); and Defendants and Cross-Defendants William Young; Edvin Muradyan; Murat Akin; and Ariana Holding, LLC (collectively, the “Ariana Parties”). 

The settlement agreement provides that the Ngo Parties and the Robinson Parties “withdraw any claim of interest in the Painting” such that title to the Painting vests in the Ariana Parties, that the Ariana Parties will make efforts to sell the paintings, and that the Ariana Parties will pay a sum of $275,000 to DPN’s counsel’s client trust account, within five (5) days of receiving proceeds from the sale of the painting or on June 25, 2020, whichever is earlier.  (DPN’s Opening Brief, p. 4:1:17; Frieden Decl. ¶ 4 and Exs. A-C ¶¶ 2, 4.)  The $275,000 is to be split evenly among the Ngo Parties and the Robinson Parties.  (DPN’s Opening Brief at p. 2:14-15.)

Because the Court found at the September 13, 2023 hearing that a valid and binding settlement agreement exists, the parties are entitled to a court order mirroring the terms of the settlement agreement.  Because the Court does not engage in an analysis on whether the agreement was breached as part of its determination of the appropriateness of an order enforcing settlement, amounts that would be recoverable in connection with a breach are not appropriately part of an order enforcing settlement.

The Ngo Parties subsequently submitted a proposed judgment in favor of the Ngo and Robinson Parties and against the Ariana Parties “jointly and severally, in the amount of $275,000 plus $91,657.50 pre-judgment interest interest (sic) (calculated at 10% per annum from June 25, 2020, to October 25, 2023) for a total judgment of $366,657.60.” 

On October 11, 2023, the Court rejected the proposed judgment because it did not address the Ngo and Robinson Parties’ obligations to “withdraw any claim or interest in the Painting” and included a request for interest, which is not a term of the settlement agreement, and contemplates the Ariana Parties’ breach, which was not addressed or analyzed by the Court.

The Ngo Parties have now submitted a new proposed judgment.  The new proposed judgment includes that the Ngo Parties and Robinson Parties will “withdraw any claim of interest in the Painting” but also indicates, “Pursuant to a separate settlement agreement between the Ngo Parties and the Robinson Parties, the $275,000 is to be split evenly among the Ngo Parties and the Robinson Parties” and that “the Ariana Parties are obligated to pay two hundred and seventy-five thousand dollars ($275,000) as of June 25, 2020, to be evenly split between the Ngo Parties and the Robinson Parties.”  The proposed judgment also indicates the contradictory instructions, “the Ariana Parties will pay a sum of $275,000 to the client trust account of Plaintiff David Phong Ngo[…]”

The Court cannot enter a judgment referencing the separate agreement between the Ngo Parties and Robinson Parties, because the Court did not analyze the separate settlement agreement between the Ngo Parties and the Robinson parties addressing the division of the $275,000 among them in connection with the Motion to Enforce Settlement.  The settlement agreement the Court analyzed in connection with the Motion was attached in counterparts as Exhibits A-C to the March 12, 2023 Frieden declaration, and specifies the Ariana Parties shall deposit the $275,000 to the “James A. Frieden Esq. IOLTA Trust Account,” identified by bank account and routing number, and specifies, “By this Agreement Sage Robinson, in all capacities, and Katherine Robinson hereby authorize the Ariana Parties to pay the $275,000 to Mr. Frieden's Trust Account.”  (Emphasis original.)

The Court continues the Status Conference re Proposed Judgment to December 8, 2023 at 8:30 A.M. in Department 207.  The Ngo Parties shall file and serve a proposed judgment in conformance with the Court’s order of September 13, 2023 on or before December 1, 2023.

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

DATED:  November 17, 2023                       ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court