Judge: Michael E. Whitaker, Case: SC128759, Date: 2023-09-13 Tentative Ruling

Case Number: SC128759    Hearing Date: September 13, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

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

            At the February 22, 2023 hearing on the Order to Show Cause Re: Dismissal (Settlement), Plaintiff indicated Defendants had breached the parties’ settlement agreement, and the matter was set for trial.  Plaintiff was to file and serve an opening brief by March 15, 2023, Defendant to file and serve an opposition by March 29, 2023, and Plaintiff to file and serve a reply (if any) by April 10, 2023.  A non-jury trial regarding the breach of the settlement agreement was scheduled for May 17, 2023.  (February 22, 2023 Minute Order.) [1]

            On March 14, 2023, Plaintiff David Phong Ngo timely filed an opening trial brief for entry of judgment in accordance with the settlement terms, pursuant to Code of Civil Procedure section 664.6.  On April 3, 2023, Claimants Sage M. Benedict (Robinson) and Katherine D. Robinson belatedly filed their trial memorandum in pro per.  On May 15, 2023, Defendant William C. Young filed a declaration and request for continuance in pro per.

            At the hearing on May 17, 2023, the Court noted that the parties requested a continuance in light of the fact that Defendant Young indicated he was in the process of selling the painting in question.  The Court continued the hearing to August 30, 2023.  (May 17, 2023 Minute Order.)  On July 26, 2023, the Court continued the hearing to September 13, 2023.  (July 26, 2023 Notie Re: Continuance of Hearing and Order.)

LEGAL STANDARD

(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1)   The party.

(2)   An attorney who represents the party.

(3)   If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.

(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.

(Code Civ. Proc., § 664.6, subds. (a)-(d).)

ANALYSIS

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”].)    

Plaintiff David Phong Ngo (“DPN”) argues that in March 2020, a settlement agreement was reached among him; his son, Cross-Complainant Darrin Ngo (“DN”) (together, the “Ngo Parties”); Defendant, Cross-Complainant, and Cross-Defendant Sage Robinson; and her sister, Katherine D. Robinson (“the Robinson Parties”); and Defendants and Cross-Defendants William Young; Edvin Muradyan; Murat Akin; and Ariana Holding, LLC (together, 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.)

            DPN has attached to his opening brief, copies of the agreement, executed in three counterparts.  Exhibit A is signed and initialed by DPN, DN, Edvin Muradyan, and Murat Akin.  (Frieden Decl. ¶ 4 and Ex. A.)  Exhibit B is signed and initialed by William Young.  (Frieden Decl. ¶ 4 and Ex. B.)  Exhibit C is signed and initialed by both of the Robinson Parties.  (Frieden Decl. ¶ 4 and Ex. C.)  The agreement also contains an attorney fee provision and a provision expressly giving the Court the power to enforce the settlement under Code of Civil Procedure, section 664.6 (Frieden Decl. ¶ 4, Exs. A-C ¶¶ 12, 23.)

            The Robinson Parties filed a trial memo in pro per that stated (1) there is a signed settlement agreement requiring the Ariana Parties to sell the Painting and pay $275,000 from the proceeds of the sale; and (2) the payment was never received. (Trial Memorandum of Robinson Parties.)

            The Ariana Parties have apparently had difficulty selling the painting due to the COVID-19 Pandemic.  (Opening Brief at p. 2:15-18.)  William Young submitted a declaration indicating (1) “Ariana Holding, LLC, Mr. Muradyan and I have been diligently attempting to sell, monetize or otherwise raise the settlement amount of $275,000.00 referred to in the Settlement Agreement dated and filed on April 5, 2020 {“Settlement”}”; (2) the value of the painting “has little or no market value at this time for various reasons including the COVID Pandemic and the current world’s depressed economic environment”; (3) William Young has been pursuing other means to pay the settlement amount unrelated to the sale of the painting.  (Young Decl. at p. 1.)  The Young Declaration further explains that Mr. Young anticipates receiving the necessary funds “well before June 2, 2023[.]”  (Young Decl. at p. 2.)

            DPN and the Robinson Parties now seek an order enforcing the settlement agreement.

            None of the Ariana parties filed any papers except for William Young, who filed a declaration.  The Young Declaration admits the existence of the Settlement Agreement,[2] and admits that the Ariana Parties owe $275,000, pursuant to the terms of that Settlement Agreement.  The Settlement Agreement attached to DPN’s trial brief is initialed on each page and signed by all parties in question.

            Therefore, the evidence presented establishes that a settlement agreement exists, and that pursuant to the terms of that settlement agreement, the Ariana Parties owe the Ngo Parties and the Robinson Parties $275,000 in exchange for relinquishment of any claim of ownership in the painting by the Ngo Parties and/or the Robinson Parties.

CONCLUSION AND ORDER

The Court finds that Plaintiff David Phong Ngo has proven the existence of a valid and binding settlement agreement for purposes of Code of Civil Procedure section 664.6.

Accordingly, the Court grants the motion for an order enforcing the settlement agreement, attached in counterparts as Exhibits A-C to the Frieden Declaration under Code of Civil Procedure section 664.6.  Plaintiff shall prepare and lodge on or before September 27, 2023 for the Court’s consideration and entry a proposed judgment in conformance with the Court’s ruling on Plaintiff’s motion. 

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

DATED:  September 13, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court