TENTATIVE RULING

Calendar:    3

Date:          3/10/2023   

Case No: 21 GDCV01217

Case Name: 1523 Windsor Road Condominiums Homeowners Association, Inc. v. Perez 

MOTION TO ENFORCE SETTLEMENT AGREEMENT

Moving Party:               Plaintiff 1523 Windsor Road Condominiums

   Homeowners Association, Inc.   

Responding Party:         Defendant Jamie G. Perez (No Opposition) 

RELIEF REQUESTED:

Entry of Judgment and award of attorney fees and costs 

SUMMARY OF FACTS:

Plaintiff 1523 Windsor Road Condominiums Homeowners Association, Inc. filed this action alleging that defendant Jamie G. Perez owns a condominium unit in a complex in Glendale and is subject to recorded CC&Rs and statute regarding the subject unit, under the purview of the Association.  The complaint alleges that defendant failed to pay assessments and related charges as required under the CC&Rs and statute, and that there is now due, owing, and unpaid to defendant Association the sum of $35,234.42, along with attorney fees and costs, and further monthly assessments as they become due.   

The complaint alleges causes of action for violation of statute/declaration and foreclosure of real property assessment lien. 

The file shows that on January 5, 2022, plaintiff filed a Notice of Settlement of Entire Case.  

On January 20, 2023, plaintiff filed a Request for Dismissal of the Complaint, without prejudice, with the court to retain jurisdiction pursuant to Code of Civil Procedure section 664.6. The dismissal was entered as requested the same date. 

ANALYSIS:

CCP § 664.6 provides, in pertinent part:

“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, the parties entered into a written Payment and Release Agreement signed by the parties outside of the presence of the court in October and December of 2021.  [Hunter Decl., para. 5, Ex. D]. The written and executed Agreement includes a provision which states:

“The court shall retain jurisdiction of this case and this Agreement.  The parties agree that the court shall have jurisdiction and power to enforce the provisions of this Agreement pursuant to Code of Civil Procedure Section 664.6 and other applicable statutes.”  

[Ex. D, para. 7].

This written request in the Agreement was made prior to the dismissal of the complaint, and, accordingly, the parties have appropriately preserved the court’s jurisdiction to enforce the settlement summarily pursuant to CCP section 664.6. 

The Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court on a section 664.6 motion may 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.   

The motion presents evidence that the Agreement was for plaintiff to take monthly payments from defendant paying a total discounted sum of $28,799.36, to be paid beginning October 25, 2021 through December 1, 2022.  [Ex. D, para. 2].  The Agreement provides:

“If Defendant fails to pay any payment on time and/or in full by the due date, then the entire balance set forth in paragraph 1 above ($37,190.82) less payments made, shall be immediately due and payable, plus all additional attorney fees, collection costs, and interest on the full balance at 1% per month.  The amount set forth in paragraph 1 above ($37,190.81) may be used for all purposes.  Defendant agrees not to dispute this amount.”  

[Ex. D, Agreement, para. 2]. 

The Agreement states at paragraph 1, “As of October 31, 2021, Defendant owes Association the delinquent sum of $37,190.81.” 

Defendant submits evidence that the defendant made payments from October 2021 through December 2022.  [Martin Decl., para. 10].  Defendant indicates that the entire remaining balance was due December 1, 2022, and that there was no payment received for January 2023, and that defendant failed to pay the remaining balance by December 1, 2022, or at any time.  [Martin Decl., para. 10].  The declaration indicates that the unpaid delinquent balance and unpaid ongoing assessments and charges total $27,990.09 as of January 6, 2023.  [Id].  The declaration provides a detail of the amount owed in this sum.  [Martin Decl., para. 14].   Counsel for plaintiff submits a declaration with a similar calculation.  

These figures appear not to appropriately reflect what was due less what was paid.  Specifically, the Agreement provides that in the event of default, “the entire balance set forth in paragraph 1 above ($37,190.82) less payments made, shall be immediately due and payable, plus all additional attorney fees, collection costs, and interest on the full balance at 1% per month.”

The detail shows that there were payments being made each month to cover both the monthly payments ($1000 for November 2021 and $600 thereafter) and the monthly assessments (although these are not clearly included in the default provision) and it is not clear from the material submitted that the amount due is as represented, as payments were evidently made as required under the Agreement through December 2022, and have not been properly credited as “less payments made,” under the Agreement default provision as agreed in writing between the parties.  The court is concerned that it appears that payments have been made for every month covered by the Agreement but have somehow not significantly reduced the sum due under the Agreement.  The court should not be required to conduct these calculations and will require that they be more clearly evidenced by defendant before a judgment is entered. 

Specifically, it appears from the detail that payments were made in the sum of $1,000 in November, plus $425.98 for the November Assessment, and in the sum of $600, plus $425.98 for the monthly assessment in each successive month.  [See Martin Decl., para. 14].  The totals from the detail equal $1,000, plus 14 payments of $600 ($9,400), for payments of $19,400.  The assessment payments total 14 payments of $425.98, for an additional total of $5,963.72. The grand total of payments made would then either be $19,400 (monthly payments only), or $25,363.72 (monthly payments plus assessments).  Subtracting either of these from $37,190.81 would be $17,790.81 (monthly payments only (less $19,400)) or $11,797.09 (monthly payments plus assessments (less $25,393.72)).   The sum sought, $27,990.90, appears to be significantly overstated by either measure.   The court cannot on this showing find that substantial evidence supports the sum sought in connection with enforcing the terms of the settlement agreement to which the parties agreed. 

A ledger attached to correspondence to plaintiff’s attorney suggests charges could be being included for significant special assessments, collection costs, and monthly assessments from March 2020, before the settlement was entered, which sums may be being doubly assessed, or improperly assessed.  [See Ex. L].

The motion accordingly is denied without prejudice based on defendant’s failure to sufficiently establish the amount due under the express terms of the Agreement between the parties or continued for a further showing by substantial evidence on this critical fact.  

If the sum owing less payments made can be clarified at the hearing, the motion also seeks reasonable attorney’s fees in the sum of $2,145.00, for the drafting of six demand letters at a fixed fee of $165 each, and 3 hours at $385 per hour preparing this motion, responding to opposition and attending the hearing, for a total of $2,145.00 in fees.  Plaintiff also seeks $51.28 in electronic filing fees and filing fees costs for this motion of $60.00.  [Hunter Decl., para. 16]  

As quoted above, the Agreement provides in the event of default for the payment of “additional attorney fees, collection costs,” occasioned by that default.  [Ex. D, para. 2].   The fees and costs are reasonably incurred and could be awarded as requested.  

The court is concerned that the that the motion also seeks foreclosure of a homeowner’s assessment lien, which is not mentioned in the default paragraph of the subject Agreement.  [See Ex. D, para. 2].  The Agreement provides in a different paragraph with respect to the release of liability that defendant “waives any and all defenses to the Legal Action…against Defendant to foreclose the Lien and recover monetary damages.”  [Ex. D, para. 4].  The Agreement also provides in yet another separate paragraph, “The non-defaulting party shall be entitled to seek all remedies against Defendant, and Association may continue to collect the judgment and additional attorney fees and costs against Defendant, including foreclosure of the Lien.”  [Ex. D, para. 7].  There is no express provision that the foreclosure may be ordered in this action upon default, in this type of summary proceeding.  The court does not find that the parties agreed that an order of foreclosure could be entered summarily upon default, given the lack of clear language to that effect in the default provision.  The court will hear argument with respect to whether the court should entertain further argument on the propriety of such a remedy in this proceeding, or whether plaintiff would prefer to have the dismissal set aside and a future date be set in this matter to pursue this matter to trial on both causes of action of the complaint.   

 

RULING:

[No Opposition]

 

Motion for Entry of Judgment and Attorney Fees and Costs is DENIED WITHOUT PREJUDICE. 

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. 

However, the Court cannot find on the showing currently before it that substantial evidence supports entering judgment in favor of plaintiff in the sum sought, which does not appear to appropriately reduce the agreed upon judgment amount by the payments made by defendant.  The Court is also unable on the showing to conclude that the parties agreed that upon default a judgment of foreclosure on a homeowner’s assessment lien would be summarily entered by the Court.    

Or, alternatively, as per election of the plaintiffs,

UNOPPOSED Motion for Entry of Judgment and Attorney Fees and Costs is GRANTED IN PART.  

Pursuant to CCP section 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.  Pursuant to the written Payment and Release Agreement, and due to the default of defendant, judgment is entered in favor of plaintiff 1523 Windsor Road Condominium Homeowners Association, Inc. and against defendant Jamie G. Perez as agreed by the parties in the sum of $37,190.82 less payments made, in the sum of $25,363.72, for a sum immediately due and payable of $11,797.09, plus attorney fees of $2,145.00 and collection costs of $51.28 in electronic filing fees and filing fees costs for this motion of $60.00, for a total judgment of $14,053.37.  

Foreclosure on a homeowner’s assessment lien may be pursued in a separate action, if appropriate.  

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.