Judge Randolph M. Hammock, Case 19STCV18255 2022-09-09 Tentative Ruling

Plaintiff Alexander Rosteck brought this action against Defendant Sandy Alprecht for (1) contribution, (2) unjust enrichment, and (3) declaratory relief. The matter stems from a vacation timeshare the parties purchased together in Hawaii.

If the 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, 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.

A settlement agreement in which the parties agree that the Court will retain jurisdiction to enforce the settlement must be signed by the parties (not just their counsel) and filed with the Court before the action is dismissed. (MesaRHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917-918.)

“Strong public policy in favor of the settlement of civil cases gives the trial court, which approves the settlement, the power to enforce it.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357.) Likewise, in “ruling on a motion to enforce settlement,” the Court “necessarily has the power to resolve factual disputes relating to the agreement.” (Ibid.) Of course, this also means that it is “for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement.” (Id. at 1360.)

The parties settled this matter on September 10, 2021, and this court retained jurisdiction to enforce the settlement agreement if necessary. This motion first came for hearing on June 9, 2022. Per the moving party’s request, that hearing was continued 90 days. In the interim, Plaintiff filed a status report reflecting that Defendant Alprecht had since complied with the terms of the settlement agreement and that the motion had become moot. However, Plaintiff also stated that he “desire[d] to proceed with the request for an award of attorney’s fees incurred in enforcement of the settlement agreement which was unfortunately necessitated due to Defendant’s dilatory conduct.” (08/15/2022 Status Report, ¶ 3.) Thus, the only remaining issue is whether Plaintiff is entitled to attorney’s fees for bringing this motion.

The parties’ Settlement Agreement provides that “[i]n any action to enforce or interpret this Agreement, the prevailing party shall be entitled to costs and reasonable attorney’s fees.” (See Agreement, filed 09/10/2022.) CCP section 1717(a) provides that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”

Attempting to explain her delay, Defendant Alprecht contends that she had medical issues during the month of February 2022; during much of March, she was without a cell phone; and in April, she tried but could not get ahold of Plaintiff’s counsel. (See Alprecht Decl., generally.)

Plaintiff disputes this account, contending that Defendant never contacted Plaintiff’s counsel, and that there were weeks where Defendant was healthy and could have at least communicated with Plaintiff’s counsel for an update. “Instead, Defendant contacted Plaintiff’s counsel’s office four days after the filing and service of the instant motion.” (Reply 6: 11-13.) Based on the above, Plaintiff seeks $7,787.83 in attorney’s fees incurred in enforcing the settlement.

Plaintiff’s position is not necessarily an unreasonable one. The Defendant’s excuses (and that is what they are – excuses), are not that compelling. We live in a modern world, in which communications between people are readily accessible. The time period in which the Defendant did not have her cell phone are of no consequence. There were many alternatives left to the Defendant. It is not a simple coincidence that contact/action was finally made by the Defendant a mere few days after this motion was filed and served. This is what happens when there is an outstanding judgment. The judgment debtor doesn’t take any action until and unless the judgment debtor successfully seizes on of the assets of the judgment debtor.

Be that as it may, it is well settled that “the trial court exercises a particularly ‘wide discretion’ in determining who, if anyone, is the prevailing party for purposes of section 1717(a).” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal. App. 4th 858, 894.) In this case, this court questions whether Plaintiff is truly the “prevailing party” on the motion, given that the motion has effectively become moot. Plaintiff states that he “desires to proceed with the request for an award of attorney’s fees,” but has not presented authority awarding attorney’s fees on a motion to enforce settlement when the opposing party complies with the settlement agreement before the hearing. On these facts, the court submits that there is no true “prevailing party” on the motion to enforce, since the parties apparently worked out the dispute without court intervention.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.