Judge: Michael Shultz, Case: TC028673, Date: 2023-01-31 Tentative Ruling
Case Number: TC028673 Hearing Date: January 31, 2023 Dept: A
TC028673
Olegario Hernandez v. Ezequiel Rodriguez Guzman
[TENTATIVE] ORDER
I.
BACKGROUND
This action arises from
Plaintiff’s purchase of real property from Defendant. The property did not
comply with the City of Compton’s code requirements for conversion of a
single-family dwelling into a duplex. Plaintiff filed a conditional notice of
settlement on December 13, 2017. On October 10, 2019, the Hon. Gary Y. Tanaka
granted Plaintiff’s unopposed motion to enforce settlement. The settlement was
conditioned on Defendant’s obligation to modify the property and obtain the required
permits within an allotted time period. See Min. Ord. of 10/10/19.
On January 31, 2020, Judge Tanaka held
a hearing on the Court’s Order to Show Cause Re: Enforcement of Settlement. The
parties agreed that Defendant would obtain permits and pay costs incurred for
bringing the home back into compliance. Plaintiff agreed to pay all costs associated
with the safety violations of the property. See Min. Ord. 1/31/20.
On August 6, 2020, the Hon.
Maurice A. Leiter granted Plaintiff’s motion for attorney’s fees and ordered the
entire case dismissed without prejudice. Judge Leiter retained jurisdiction to
make orders to enforce any and all terms of settlement, including judgment,
pursuant to Code of Civil Procedure section 664.6. Dismissal was made pursuant
to California Rules of Court 3.1385 (b) and (c).
II.
ARGUMENTS
A.
Plaintiff’s Motion filed November
10, 2022.
Plaintiff again moves to enforce
the settlement agreement. Plaintiff argues that over two years have passed
since the Court ordered Defendant to make corrections pursuant to the parties’
agreement, and Defendant has not complied with the terms of the parties’
conditional settlement agreement. Accordingly, the court should enter judgment
for $85,000 in Plaintiff’s favor including costs and attorney’s fees pursuant
to the parties’ agreement.
B.
Opposition filed January 18, 2023.
Defendant argues he has complied
with the settlement agreement. Plaintiff’s motion is vague as to how the
Defendant failed to perform conditions. Plaintiff
has not indicated how the $85,000 will be used, or how it would rectify any
alleged non-performance issues. There are no outstanding permitting issues
associated with the real property. Defendant believes that the property is
authorized as a three-unit property. Plaintiff obtained more than the benefit
of his bargain since Plaintiff obtained 344 square feet more than he agreed to
purchase.
C.
Reply filed January 25, 2023
Plaintiff
argues that the opposition does not contain any points and authorities, and
therefore, the Court should deem Plaintiff’s motion to be unopposed. The last motion to enforce settlement
required Defendant to obtain permits for the back house for 960 square feet and
pay all costs associated with bringing the house into compliance. It is
irrelevant whether the home is permitted as a triplex since the only permits at
issue are associated with the 960 square footage in the back house. Defendant
represented within the last 18 months that he was getting the back unit
permitted with repairs to be completed within six months. Whether or not
Plaintiff complied with his obligations to pay for all safety code violations
is irrelevant. The issue is Defendant’s failure to comply with his obligation
to obtain permits and pay costs incurred in bringing the property in
compliance. Defendant has not established he complied with those requirements.
III.
LEGAL STANDARDS
The court can
enter judgment pursuant to the terms of settlement if there is a writing signed
by the parties or made orally before the court to settle the case. Code Civ. Proc., § 664.6. A writing
is “signed by a party” if it is signed by either the party or an attorney who
represents the party. Code Civ. Proc., § 664.6 subd. (b). In
deciding a motion pursuant to section 664.6, the court may consider evidence
beyond this writing, “but only to determine what settlement terms the
parties previously agreed upon." Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1123.
Additionally, “even
though a settlement may call for a case to be dismissed, or the plaintiff may
dismiss the suit of its own accord, the court may
nevertheless retain jurisdiction to enforce the terms of the
settlement, until such time as all of its terms have been performed by the
parties, if the parties have requested this specific retention of jurisdiction
Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439 [italics in original].
IV.
DISCUSSION
The Court has considered the opposition
over Plaintiff’s objection in furtherance of the court’s policy favoring
disposition on the merits. Mink v. Superior Court, (1992) 2
Cal.App.4th 1338.
The settlement agreement signed by
the parties on December 12, 2017, required Defendant to make repairs and obtain
permits necessary to comply with any presently existing violations. Decl. of
Steve Lopez filed 11/10/22, Ex. A, p. 1, ¶ 7(B). The property “must be
permitted” for a gross living area of 1,492 square feet and for 14 total
bedrooms and three total bathrooms. Id. Defendant agreed to pay for the
expenses and repairs, including any permits, fees, inspections, materials and
labor, including consultant and contractor fees and relocation of tenants, if
necessary, by April 30, 2018, with proof of compliance provided to Plaintiff on
or before that date. Lopez Decl., Ex. A,
p.2 ¶ 7(C), (D).
On January 31, 2020, (notably,
past the agreed-upon deadline), the Court’s minute order reflects that Defendant
agreed to obtain permits for the “back house for 960 sq/ft.” and pay all costs associated
with bringing the back house in compliance with code violations. Plaintiff’s
Reply, Ex. 7, page 4. Defendant’s opposition disputes that he is responsible
for correcting code violations identified five years after the sale of the
property in the first instance. Opposition, 5:23-28. However, whether Defendant
bears any liability for the unpermitted improvements is not the issue.
Defendant agreed to settle this matter pursuant to the terms and conditions set
forth in the parties’ settlement agreement of December 12, 2017. Defendant has not provided any evidence that
he provided proof of compliance as required by the agreement.
Plaintiff’s counsel sent an email
to defense counsel dated January 2, 2023, requesting that Defendant produce the
permits. Lopez Reply decl., Ex. 6-1. Defense counsel responded that since
Plaintiff received more square footage than Plaintiff bargained for, Defendant
complied with the parties’ settling agreement. Id. Defense counsel did
not address proof of compliance. Id.
Notwithstanding the foregoing,
Plaintiff argues that Defendant’s failure to comply with the requirements of
the agreement entitle Plaintiff to judgment of $85,000. The settlement
agreement does not provide for this contingency in the event Defendant failed
to comply with his obligations. Lopez Decl Ex. 6-1. In considering whether to
enforce settlement, the court is not authorized to “add to or modify an express
term of the settlement." Leeman v. Adams Extract & Spice, LLC (2015) 236
Cal.App.4th 1367, 1375.
V.
CONCLUSION
As the
settlement agreement does not contemplate entry of judgment for $85,000 in the
event of Defendant’s breach, the Court denies this request. However, as
Plaintiff has established a written settlement agreement setting forth
Defendant’s specific obligations, the Court GRANTS Plaintiff’s motion and enters
judgment “pursuant to the terms of the settlement.” Code Civ. Proc., § 664.6.