Judge Ralph C. Hofer, Case Number: 22GDCV00218, Date: 2024-06-14 Tentative Ruling

Plaintiffs Sarmen Abolian and Talin Shahbazian, a married couple, allege that they are trustees of a family trust, and as trustees own real property on Dunsmere Road in Glendale. Defendant Suzanne Bloom, as trustee of Bloom Trust, owns property on Linda Vista Road in Glendale, which adjoins plaintiffs’ property.

The complaint alleges that in April of 2021, plaintiffs received a recorded survey which revealed a series of encroachments over a portion of the Dunsmere Property created by defendants, and plaintiffs recently commissioned a new survey, presenting a more detailed description of such encroachments.

Plaintiffs allege that a fence was built some time ago by either defendants or their predecessors in interest, which was used by defendants to create a disputed area between the fence and the correct location of the boundary line (the “Disputed Area.”). Plaintiffs allege that defendants have also intentionally installed a deck which encroaches on the Disputed Area. The complaint alleges that the encroachments cover an area of approximately 1030 square feet, that plaintiffs have never given their permission to the placement of the fence or deck, or to the use of the Disputed Area, and that defendants have failed to take any remedial action despite having received a copy of the recorded surveys from plaintiffs.

Defendant has filed a cross-complaint, alleging that that cross-complainant Bloom has maintained possession and control of the Disputed area, which has been hostile, notorious, adverse, and continuous for over 39 years, and seeking to quiet title, establish a prescriptive easement, or establish an equitable easement.

The file shows that on October 4, 2023, at a Final Status Conference, counsel requested that the court conduct a Settlement Conference. The Stipulation to Policies and Procedures was signed and filed, the settlement conference proceeded, and counsel informed the court that the case had settled. The Settlement Agreement was placed on the record as fully reflected in the notes of the Official Court Reporter.

On March 4, 2024, the court heard an OSC Re: Dismissal (Settlement). The matter was called for hearing, the daughters of defendant addressed the court over plaintiff’s counsel’s objection. The minute order notes, “The Proposed Stipulation and Order does not contain the language dismissing the case pursuant to CCP 664.6.” After conferring with counsel, the court ordered counsel to resolve the unresolved issues prior to the next court date, which was set for June 3, 2024. The Proposed Stipulation and Order was rejected by the court.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before 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.”

THE COURT: WE ARE ON THE RECORD AND THE COURT ASKED WHETHER A SETTLMENT HAS BEEN REACHED, COUNSEL INDICATED, YES, A SETTLEMENT HAS BEEN REACHED. MR. DIJULIO IS GOING TO PUT IT ON THE RECORD RIGHT NOW.

MR. DIJULIO: THE DEFENDANTS WILL REMOVE THE ENCROACHMENT. THERE WILL BE A 1542 WAIVER OF ALL KNOWN AND UNKNOWN CLAIMS. WE’RE GOING TO WAIVE ALL ATTORNEYS’ FEES AND COSTS TO DATE. THE CASE WILL BE DISMISSED AFTER THE ENCROACHMENTS ARE REMOVED.

UPON THE DISMISSAL, $2,800 WILL BE PAID AND THE LIS PENDENS WILL BE REMOVED WITHDRAWN UPON THE DISMISSAL. AND THERE WILL BE AN ATTORNEYS’ FEES CLAUSE FOR ENFORCEMENT OF THE SETTLEMENT AGREEMENT AND THE COURT WILL RETAIN JURISDICTION UNDER CCP 664.6.”

Counsel Mr. Marcus clarified that the language concerning waiving attorneys’ fees should really be “THAT EACH PARTY BEARS ITS OWN ATTORNEYS’ FEES AND COSTS.” [Transcript, p. 18]. He also clarified that his client would remove the encroachment “NO LATER THAN FEBRUARY 2, 2024,” and that “THE ABOLIANS CAN MOVE THE FENCE ANYWHERE ON THEIR PROPERTY UP AND INCLUDING TO THE PROPERTY LINE.” [Transcript, p. 18].

The court then proceeded to confirm that each set of counsel had discussed the settlement with the client, and that the clients agreed with the settlement. [Ex. B, Transcript, pp. 18:27-21:1].

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.

Defendant argues that defendant has upheld her obligations under the Settlement Agreement and removed the encroachments in a timely manner, by hiring general contractor John Fase and his construction company JMF Construction, with the deck removal project costing $4,839.80. [Suzanne Bloom Decl. paras. 5-12, Ex. A]. Evidently plaintiff Abolian initially interfered and disrupted the first day of work by refusing to allow the workers to trespass on his property to conduct the work, which defendant argues would have made removal of part of the deck more or less impossible, so that defendant’s daughter, Eva Bloom, agreed to monitor the deck removal situation each day. [Eva Bloom Decl. paras. 4-7].

Defendant states in her declaration that the contractor cut off and removed approximately 127 square feet from the wood deck to comply with the settlement, and that she also had the contractor cut back the railroad ties that were slightly encroaching, and that all work was completed on January 17, 2024, in advance of the agreed upon deadline on February 1, 2024. [Suzanne Bloom Decl., para. 6, 12-15].

Defendant also submits evidence that although counsel has been notified that all necessary work for the removal of the encroachment had been completed, the settlement sum of $2,800 has not been paid, the matter has not been dismissed, and the lis pendens has not been withdrawn or removed. [Suzanne Bloom Decl., paras. 14, 16].

Defendant argues that the court should accordingly enter judgment on the parties’ settlement in accordance with the terms of the Settlement Agreement, with defendant to be awarded $2,800 from plaintiff, the court ordering the lis pendens filed by plaintiff expunged, and thereafter the court ordering that the case is dismissed.

Plaintiffs in opposition do not dispute that the encroachment has been timely removed. Plaintiffs argue that defendant improperly seeks payment before the actions are dismissed, and that pursuant to the settlement, the sequence of performance was for 1) defendant to remove the encroachment, 2) the parties to mutually dismiss their claims, and then 3) plaintiffs pay defendant the amount of $2,800 and the parties remove their lis pendens.

Plaintiffs argue that the dismissal of the action is a precondition to payment, but that defendant has refused to execute a Stipulation to dismiss or to dismiss the cross-complaint, and defendant cannot now seek specific performance or enforcement of the settlement agreement. Plaintiffs also indicate that the issue is moot because plaintiffs have tendered the $2,800 to defendant’s counsel to hold in trust pending defendant’s performance.

Plaintiffs rely on further excerpts of the transcript from the hearing where the settlement was placed on the record. Specifically, the court was concerned that the payment be made after the dismissals, which would occur after the encroachment was fixed, and that the dismissals would reserve jurisdiction under CCP section 664.6.

“THE COURT: WELL, THE IDEA OF HAVING IT PAID WHEN THE DISMISSALS HAPPEN IS NORMALLY THE WAY THINGS HAPPEN IN THAT THE PLAINTIFF WANTS TO KNOW I'M PAYING AND THE CASE IS OVER. IF IT'S BEING PAID EARLIER THAN THAT, THERE IS ISSUES ABOUT, YOU KNOW, WHEN THE ENCROACHMENT WILL BE FIXED? HAS IT BEEN FIXED? DO WE NOW NEED TO MAKE A BUNCH OF THE MEASUREMENTS NOW TO MAKE SURE IT HAS BEEN FIXED PROPERLY AND IT DOESN'T ENCROACH ANY LONGER?

As noted above, the court at the previous OSC Re: Dismissal hearing remained concerned that the dismissal properly reserve jurisdiction to the court to enforce the settlement under CCP section 664.6, which the stipulation submitted did not do, and the court ordered the parties to resolve that issue. Dismissing the complaint and cross-complaint while reserving jurisdiction to the court to enforce the settlement is what the parties had agreed to do in their settlement agreement. It remains necessary to make any dismissal subject to the court’s continuing jurisdiction to enforce the settlement, as such jurisdiction may be necessary to ensure that the lis pendens are removed after the dismissal.

It appears that what has occurred here is that the parties have determined that in order to dismiss the entire action, including both the complaint and cross-complaint, the parties needed to stipulate to the dismissal.

After the March 4, 2024 hearing at which the court pointed out that the proposed stipulation and order which had been submitted did not properly reserve jurisdiction under CCP section 664.6, counsel for plaintiffs sent a second stipulation to counsel for defendant, which had been signed by plaintiffs, and which new proposed stipulation and order to defendant, which states that the parties stipulate that:

1. The Court shall retain jurisdiction over this Action pursuant to California Code of Civil Procedure § 664.6, after it is dismissed in order to enforce the terms of the Parties’ October 4, 2023, oral settlement on the record; and

2. The entire Action of all parties and all causes of action shall be dismissed with prejudice pursuant to Code of Civil Procedure § 664.6 with the court to retain jurisdiction to enforce the terms of the Parties’ October 4, 2023, oral settlement on the record.”

Under the circumstances, the court cannot enter the orders requested by defendant without ordering the parties to first dismiss the action while reserving jurisdiction to the court to enforce the settlement pursuant to CCP section 664.6. The court would then, pursuant to the settlement agreement, order that once the dismissal is entered, the $2,800 be paid to defendant, and that the parties also remove or withdraw any lis pendens.

This result is not the order sought by the moving papers, but as noted above, on a motion under CCP section 664.6, the court may not create alternative material terms of a settlement but may make orders in accordance with the terms the parties agreed to. Weddington, at 810.

Both sides also seek that they be deemed the prevailing party in this matter and be awarded attorney’s fees and costs for enforcing the settlement. Defendant points out that the Settlement Agreement provided that the prevailing party on a motion to enforce the settlement would be entitled to attorney’s fees and costs for being required to enforce the settlement.

As set forth above, the transcript of the hearing memorializing the settlement agreement indicates that the Settlement Agreement is intended to be subject to an “ATTORNEYS’ FEES CLAUSE FOR ENFORCEMENT OF THE SETTLEMENT AGREEMENT.”

Defendant argues that for purposes of determining entitlement to recover costs, CCP section 1032 defines “prevailing party” to include, “a defendant in whose favor a dismissal is entered.” Defendant argues that attorney’s fees are recoverable costs under section 1033.5 (a)(10), which provides that a prevailing party is entitled to recover as costs, “Attorney’s fees, when authorized by …(A) Contract.” Plaintiffs argue that by virtue of their opposition papers, they will have achieved their objectives in enforcing the settlement, and so should be awarded their attorney’s fees.

As noted above, defendant will not entirely prevail on this motion, and the court will not be dismissing the action in favor of defendant but ordering the parties to dismiss the action subject to a reservation of jurisdiction under CCP section 664.6. It also appears that defendant has failed to fully perform under the settlement agreement, so that a motion to enforce the agreement by defendant was not necessary; defendant could have avoided such a motion by performing as agreed. Attorney’s fees are not awarded to defendant.

Defendant in the motion also seeks sanctions against plaintiffs for allegedly engaging in a strategy of obstructive tactics in trying to stop the workers from removing the encroaching portion of the deck, in using plaintiff Shahbazian’s position as a commissioner on Glendale’s Planning Commission to secure an investigation of defendant’s property, and in withholding payment beyond the date promised by counsel as stated in open court. Defendant argues that sanctions should be awarded against plaintiffs in the sum of $5,600, two times the amount of the $2,800 payment due.

As pointed out in the opposition, there is no statutory or other legal authority cited for the imposition of sanctions here. There is also no justification for a sum in the amount of double the settlement sum due. There was certainly no agreement in the Settlement Agreement to the imposition of a sanctions award which could be summarily determined under CCP section 664.6. To the extent sanctions are intended to be sought under CCP section 128.7, defendant has clearly not filed a separate motion and permitted the required safe harbor as required under that section. The request is denied.

Motion to Enforce the Settlement Pursuant to CCP section 664.6 and For Legal Fees and Costs of $4,887.50 Against Plaintiffs Sarmen Abolian and Talin Shahbazian is GRANTED IN PART and DENIED IN PART.

The Court also notes that it presided over the hearing at which the oral settlement agreement was entered into. The Court further finds that substantial evidence supports entering an order that the parties enter into a stipulation for dismissal of the complaint and cross-complaint which reserves to this Court jurisdiction to enforce the oral Settlement Agreement pursuant to CCP section 664.6. Once dismissal is entered, plaintiffs and cross-defendants Sarmen Abolian and Talin Shahbazian are ordered to pay to defendant and cross-complainant Suzanne S. Bloom, as Trustee of the Suzanne S. Bloom Trust, and Suzanne S. Bloom, an individual, the sum of $2,800 (or to facilitate release of such funds to defendant from defendant’s counsel), pursuant to the agreement of the parties. Once dismissal is entered, also pursuant to the agreement of the parties, the parties are ordered to remove or withdraw any lis pendens.

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