Judge: Peter A. Hernandez, Case: KC067782, Date: 2022-09-29 Tentative Ruling
Case Number: KC067782 Hearing Date: September 29, 2022 Dept: O
Defendant/Cross-Complainant
Shawn M. Millner’s Motion to Enforce Settlement Agreement is DENIED.
Background
This is a partition action filed by Plaintiff Nobia Joyce (“Joyce”) against her daughter Shawn M. Millner (“Millner”), individually and as trustee for the Shawn Marie Millner Revocable Trust, and her daughter’s boyfriend, Laurence Todd (“Todd”) (collectively, “Defendants”). Joyce alleges that she purchased the property located at 317 Oakview Drive in Azusa (“subject property”) with her daughter in March 21, 1996 and that she owns 50% of the subject property, but that Defendants have been attempting to remove her from the subject property.
On July 17, 2015, Joyce filed a complaint, asserting causes of action against Defendants for:
1.
Partition (CCP §§ 872.210, 872.230, 872.820)
2.
Accounting
3.
Conversion
4.
Elder Abuse
5.
Intentional Infliction of Emotional Distress
6.
Negligent Infliction of Emotional Distress
On December 2, 2015, the court granted Defendants’ motion to strike out Joyce’s Fourth through Sixth Causes of Action. On December 8, 2015, Millner (in her individual capacity only) and Todd filed a cross-complaint against Joyce. The First Amended Cross-Complaint (“FACC”), filed on December 9, 2015, asserts causes of action for:
1.
Invasion of Privacy—Intrusion into Seclusion
2.
Invasion of Privacy—Penal Code §§ 632 & 637.2
On July 2, 2018, Joyce dismissed the Second and Third Causes of Action, without prejudice. On July 5, 2018, a “Stipulation Re: Settlement” was filed; that day, the court ordered the action “dismissed with prejudice pursuant to CCP Section 664.6, with the court to retain jurisdiction to enforce the settlement.”
On February 3, 2020, the court issued a nunc pro tunc order, wherein the July 5, 2018 minute order was corrected to reflect a dismissal without prejudice.
On October 1, 2020, the court deemed this instant case related to Case Nos. 19PSCV00124 and 20STCV11677; this instant case was designated as the lead case.
On October 20, 2020, Millner filed a notice of appeal. On April 6, 2022, the Second District Court of Appeal, Division Four filed an “Order Dismissing Appeal” on the basis that the appeals of the July 5, 2018 minute order and February 3, 2020 nunc pro tunc order were untimely and that the September 21, 2020 order denying the motion to enforce settlement agreement was not an appealable order. Remittitur was filed on June 9, 2022.
Case No. 19PSCV00124
Plaintiff Stephen R. Golden (“Golden”) alleges as follows:
On or about March 21, 1996, Joyce and Millner orally agreed to purchase the subject property, each with a 50% interest. They agreed that Joyce would provide Millner with $29,400.00 in order for Millner to qualify for the purchase of the subject property. On November 17, 2011, Millner drew up a trust that named Joyce as the executor of the trust and attorney in fact. On or about March 2015, Millner removed Joyce by giving her a 60-day notice and calling the police to remove her, placing her on a 5150 hold and filing a temporary restraining order against her. On or around July 17, 2015, Joyce filed a lawsuit against Millner (i.e., Case No. KC067782). On July 5, 2018, Joyce and Millner signed a stipulation and settlement agreement, which provided: (1) all parties would dismiss all claims without prejudice and bear their own costs, (2) Millner and Joyce would in good faith see a suitable accommodation for Joyce within 14 days and (3) Millner would provide continuing financial assistance and/or consultation to secure suitable accommodations for Joyce as the need arose. Millner failed to secure suitable living accommodations for Joyce, who is now homeless. Joyce assigned her rights and interests to Golden.
On March 19, 2019, Golden filed a First Amended Complaint, asserting causes of action against Millner and Does 1-10 for:
1.
Partition (Code Civ. Proc. §§ 872.210, 872.230,
872.820)
2.
Breach of Settlement Agreement
On June 4, 2019, Golden dismissed the action, without prejudice.
On October 1, 2020, the court deemed this instant case related to Case Nos. KC067782 and 20STCV11677; Case No. KC067782 was designated as the lead case.
Case No. 20STCV11677
Joyce alleges as follows: Millner “unlawfully dispossessed” her from the home they owned jointly. When Joyce sought recovery of her ownership interest in court, Joyce’s former attorney (who was suspended from the State Bar, but did not tell her of same) persuaded her to dismiss her original claims without prejudice and to sign a document that purported to assign her rights and interests to him so that he could litigate her claims in pro per and still collect contingency fees on the verdict. These claims were also dismissed without prejudice. Joyce seeks to establish her joint ownership interest in the home.
On March 20, 2020, Joyce filed a complaint, asserting causes of action against Millner, Todd and Does 1-20 for:
1.
Quiet Title
2.
Partition
3.
Declaratory Relief
4.
Ejectment and Damages
On October 1, 2020, the court deemed this instant case related to Case Nos. KC067782 and 19PSCV00124; Case No. KC067782 was designated as the lead case.
A Status Conference is set for September 29, 2022.
Legal Standard
“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.” (Code Civ. Proc., § 664.6, subd. (a).)
“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.” (Code Civ. Proc., §
664.6, subd.
(b).) “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, subd.
(d).)
Discussion
Millner moves the court for an order, per Code of Civil Procedure § 664.6, enforcing the settlement agreement dated July 5, 2018 in KC067782. Millner further requests that the court order (1) that the July 5, 2018 settlement agreement be deemed unenforceable by Joyce against Millner for any claims during the period between July 5, 2018-March 20, 2022, (2) Joyce provide Millner a copy of the termination agreement between Joyce and Golden rendering Joyce’s purported assignment to Golden null and void and that (3) Joyce comply with the July 5, 2018 settlement agreement by providing to Millner “a demonstrable need in writing for financial aid and/or consultation for suitable accommodations for the period between March 20, 2020 to the present within 45 days of the court’s order.”
The motion is denied.
Defendants previously filed a motion to enforce the settlement agreement in this action, which was denied on September 21, 2020. The instant motion appears to seek reconsideration of the court’s September 21, 2020 order; however, Millner has failed to articulate any new or different facts warranting reconsideration, let alone shown compliance with the requirements of Code of Civil Procedure § 1008. Neither party has specifically addressed section 1008.
The doctrine of collateral estoppel appears inapplicable here, inasmuch as that requires “(1) final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Samara v. Matar (2018) 5 Cal.5th 322, 327.) “The denial of a CCP § 664.6 motion to enter judgment on an alleged settlement agreement is a nonappealable interlocutory ruling.” (Eisenberg, et al., Cal. Practice Guide: Civil Appears and Writs (The Rutter Group 2021) 2:260.15. Joyce fails to attach the Court of Appeal’s “Order Dismissing Appeal;” however, Joyce represents that “[t]he appellate court dismissed that appeal since it was a non-appealable order.” (Opposition, 7:20-21.) It is unclear to the court, then, how a summary dismissal of the appeal in this context constitutes a “final adjudication” for purposes of collateral estoppel.
Regardless, the motion is not proper, inasmuch as there are no remaining obligations by Joyce to enforce. The action has been dismissed without prejudice, as required by the settlement agreement. The other obligations of providing financial assistance and seeking suitable accommodations for Joyce are not Joyce’s obligations.
Additionally, the relief sought by Millner herein is not proper. Millner is seeking to utilize Code of Civil Procedure § 664.6 to assert a defense to non-performance of a settlement when Joyce has not even requested any relief from the court for any possible breach of the settlement agreement by Millner. Millner’s request for Joyce’s documentation of her need for financial aid and a termination agreement with Golden is likewise improper, inasmuch as these are not terms of the settlement agreement. “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 [emphasis theirs].)