Judge Ralph C. Hofer, Case Number: 21GDCV00154, Date: 2024-07-12 Tentative Ruling

Plaintiffs Vinod Nayar and Wendy K. Hammond allege that they are the owners of property in Pasadena, and that defendants Jozsef Ferencz Foldi and Ma Victoria Yess Foldi own neighboring property which is on the property line of the plaintiffs’ property.

The FAC alleges that the roots of defendants’ trees have been encroaching onto the subject property and causing damage, and that plaintiffs have notified defendants, but defendants have failed to take proper action to cure the defect. The FAC alleges that as a result of defendants’ trees plaintiffs have suffered loss of use of their backyard, damage to their garage, damage to the subject property and an increase in expenses of maintenance.

Defendants have filed a cross-complaint against plaintiffs as cross-defendants alleging that the roots of cross-defendants’ trees have been encroaching on cross-plaintiffs’ property and that the encroaching tree was planted by the prior owners of cross-defendants’ property, and is encroaching onto both properties, but despite the possible joint ownership and responsibility for the tree, cross-defendants have sought to place the entire burden of the encroaching tree on cross-plaintiffs.

The cross-complaint also alleges that cross-defendants have removed an existing fence and replaced it with a new fence further into cross-plaintiffs’ property, installed walls which interfere with cross-plaintiffs’ use and enjoyment of their land and access from the front and back yards, and which destroyed a hibiscus tree, and have caused damage to cross-plaintiffs’ property.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court...for settlement of the case,... 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.”

In this case, plaintiffs indicate that at a Judicial Mandatory Settlement Conference Program, the parties agreed in writing and entered into a settlement agreement. [Hemming Decl., para. 2]. Plaintiffs submit a Settlement Agreement which was signed by the parties outside the presence of the court. [Ex. 1]. The matter has not yet been dismissed, and the court still has jurisdiction over the matter.

The Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court may on a section 664.6 motion receive evidence, determine disputed facts and enter the terms of a settlement agreement as a judgment, but may not create the material terms of a settlement as opposed to deciding what terms the parties themselves agreed to. Weddington, at 810. The trial court’s determination with respect to interpretation of the settlement agreement will not be disturbed on appeal if supported by substantial evidence. Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.

As an initial matter, defendants in opposition argue that they were not served with written notice of the current hearing date for the motion, but current counsel was served with the motion giving notice of the hearing on April 26, 2024. [Torres Decl., paras. 2, 3]. It appears from the file that no written notice of the hearing date being continued has been filed, although a minute order from April 26, 2024, the original noticed hearing date, indicates that “Pursuant to stipulation of counsel,” the OSC re dismissal was continued to July 12, 2024. The declaration of counsel makes it clear that counsel for defendants has all along been aware of the continued hearing date. [Torres Decl., para. 3]. Defendants in opposition also address the motion on its merits.

While it is concerning that written notice was not properly served and filed here, given that defendants have timely responded to the motion on its merits for the scheduled hearing date, the court will reluctantly deem the notice irregularity waived and will consider the motion on its merits.

The motion seeks enforcement of the term of the settlement pursuant to which defendants agreed to remove a tree. Plaintiffs indicate that the settlement amount in the sum of $90,865.00 has been paid in full, so there is no monetary judgment to be entered. [Hemming Decl., para. 4].

Defendants in the opposition indicate that the motion on this issue is now moot, as on April 12, 2024, defendants completed further removal of the tree, an inspection was conducted, and it has been agreed that the removal of the remaining tree stump is sufficient. [Torres Decl., para. 9, Ex. C]. The photographs attached do not clearly indicate to the court that the stump has been completely removed. [See Ex. C]. The court will hear argument concerning whether there remains a continuing need to enter the term concerning tree removal as judgment in this case.

The terms and conditions also include a term that money be paid, and specific terms concerning a garage rebuild, evidently to be performed by plaintiffs. While the moving papers indicate that the money has been paid, there is no mention in the moving papers of the garage rebuild terms. Defendants in opposition indicate that they believe plaintiffs have made no repairs to the structure at issue. It is the court’s practice when entering judgment enforcing the settlement agreement to also include in the judgment the terms agreed to by the parties in connection with that aspect of the settlement.

“The garage rebuild shall be in compliance with all required ordinances, building codes and permits of the City of Pasadena building and safety and Pasadena Planning Department (collectively referred to as, “Code sections"). If there are any violations of the Code sections noted or cited, Plaintiffs must cure (bring into compliance with the Code sections) within a reasonable time no more than one year from the date of the settlement agreement, unless unfeasible within the given time frame. If the time frame for completion and/or correction is not feasible, the parties shall meet and confer to reach a mutually acceptable time frame. Defendants to dismiss counter complaint. Parties to mutually cooperate with the tree removal and garage construction by communicating through email in a reasonable manner and time frame. Response to the email shall be given no more than 72 hours after the email has been sent. The time frame for response does not apply to emergency situations. If a matter is urgent it should be noted in the subject line of the email. The email communication should be sent to Josef Ferencz Foldi II at Joeyfoldi@gmail.com, Vinod Nayar at Timnayar@gmail.com and Wendy Hammond at wendyk8@gmail.com.”

The motion accordingly seeks $2,560 in attorneys’ fees. The declaration in support of the motion indicates that counsel’s fee is $300 per hour and counsel has spent 8.5 hours on the motion, including the time counsel anticipates spending to prepare for and appear at the hearing. [Hemming Decl., para. 5]. This amount actually totals $2,550, not $2,560.

Defendants in the opposition argue that no attorney’s fees should be awarded because at the time the motion was filed the parties were in meet and confer discussions concerning plans for further removal. Defendants indicate that counsel for plaintiffs sent a demand on January 4, 2024 seeking compliance by further removal of the existing tree stump, advising of an intent to file a motion and setting a deadline of January 17, 2024, and that on January 16, 2024, counsel for defendants sent an email advising that defendants had acted to retain a company for further removal and requesting plaintiffs’ availability in the event access to their property was needed. [Torres Decl., paras. 7, 8]. There was no response to this email or information sent on January 26, 2024, but this motion was filed on February 13, 2024. [Torres Decl., para. 8]. No copies of this email or correspondence is attached to the opposition.

Under the circumstances, it appears that the tree removal was not completed within the agreed upon timeframe, that the filing of this motion appeared necessary at the time, but that the relief sought in the moving papers is essentially unnecessary, so that plaintiffs will not be parties who have successfully obtained enforcement of the settlement terms they sought to enforce.

Motion to Enforce Settlement Agreement is GRANTED pursuant to CCP § 664.6. The Court finds that parties to pending litigation stipulated to the settlement of the case in a writing signed by the parties outside the presence of the court. Judgment accordingly is entered in conformity with the Settlement Agreement executed by the parties dated June 12, 2023, except there will be no money judgment entered as the monetary settlement sum has already been paid.

The garage rebuild shall be in compliance with all required ordinances, building codes and permits of the City of Pasadena building and safety and Pasadena Planning Department (collectively referred to as, “Code sections"). If there are any violations of the Code sections noted or cited, Plaintiffs must cure (bring into compliance with the Code sections) within a reasonable time no more than one year from the date of the settlement agreement, unless unfeasible within the given time frame. If the time frame for completion and/or correction is not feasible, the parties shall meet and confer to reach a mutually acceptable time frame. Defendants to dismiss counter complaint. Parties are to mutually cooperate with the tree removal and garage construction by communicating through email in a reasonable manner and time frame. Response to the email shall be given no more than 72 hours after the email has been sent. The time frame for response does not apply to emergency situations. If a matter is urgent, it should be noted in the subject line of the email. The email communication should be sent to Josef Ferencz Foldi II at Joeyfoldi@gmail.com, Vinod Nayar at Timnayar@gmail.com and Wendy Hammond at wendyk8@gmail.com.”

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