Belvia Jenkins v. Walker & Walker Realty, et al.

MOTION TO ENFORCE SETTLEMENT AGREEMENT PER CCP § 664.6

 

MOVING PARTY: Defendants Mac Bennett Enterprises, Inc. dba International Realty and Investments; John Walker dba Walker & Walker Realty

RESPONDING PARTY(S): None

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Belvia Jenkins resided at a property owned or managed by Defendants. Plaintiff alleges the residence contained toxic mold which caused her injury and emotional distress, and that Defendants failed to remedy the issue. 

Defendants Mac Bennett Enterprises, Inc. dba International Realty and Investments and John Walker dba Walker & Walker Realty now move to enforce terms of the settlement agreement pursuant to CCP section 664.6. No opposition was filed.  [FN 1]

TENTATIVE RULING:

Defendants’ motion to enforce the settlement agreement is GRANTED upon receipt of a proof of service confirming payment of the settlement to Plaintiff’s former counsel.

At that time, the action will be DISMISSED WITH PREJUDICE.

Moving parties are ordered to give notice to all interested parties, including the Plaintiff’s former counsel.

DISCUSSION:

Motion to Enforce Settlement Agreement Per CCP § 664.6

A. Plaintiff Has Notice of this Motion

At the initial May 03, 2024 hearing on this motion, this court expressed concern with the address at which Defendant served Plaintiff with the motion, given that the address (20910 Anza Avenue #109, Torrance, California 90503) had not previously appeared in the court’s file. Accordingly, this court continued the hearing and instructed Defendants’ counsel to file a supplemental declaration addressing service.

In her supplemental declaration filed 05/06/24, counsel Kristine A. Tijam explained how counsel was contacted by Plaintiff and obtained Plaintiff’s new mailing address. (See Tijam Decl., generally.) Defense counsel represents Plaintiff has confirmed by telephone that Plaintiff receives mail at 20910 Anza Avenue #109. (Id. ¶¶ 6, 7, 11.) 

In addition, through text messages exchanged with counsel, Plaintiff provided defense counsel with her email address and consented to electronic service. (Id. ¶ 9; Exh. C.) Plaintiff has confirmed receipt of various emails from defense counsel at the email address she provided. (Id. ¶ 10.) Therefore, the April 04, 2024, service of the moving papers on Plaintiff by mail and email was sufficient. 

Moreover, following the May 3, 2024 hearing, Defense Counsel gave Plaintiff further formal notice that the hearing had been continued to May 09, 2024. (See 05/06/2024 Notice of Ruling; Tijam Decl. ¶¶ 13, 14.) Counsel also informed Plaintiff of the continuance by text message and email and provided a link to LACourtConnect to access the hearing. (Id. ¶ 13; Exhs. D&E.) 

The court therefore concludes that Plaintiff had adequate notice of both the initial and continued hearing dates. 

B. Background

Defendants move the court for an order recognizing and enforcing the terms of a settlement agreement entered into between the parties. Defendants bring this motion under CCP § 664.6, which provides: 

If the parties to pending litigation stipulate, in a writing signed by the parties [FN 2] 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.

(CCP § 664.6.)

Defendants represent that the parties and their counsel participated in mediation, which culminated with the mediator, Thomas Oesterreich, offering a written proposal (“the Proposal”) by email on June 9, 2023. (Winter Decl. ¶ 5, Exh. A.) In relevant part, Mediator Osterreich wrote:

After considering all the issues that are present in the case, and the number at which the case has the best chance at resolving, my proposal is that the case settle for a payment of $37,500.

Standard terms [FN 3] will apply, including but not limited to:

• California Civil Code section 1542 waiver

• Each side to bear their own costs and attorney’s fees.

• No admissions of liability.

• Plaintiff to be responsible for all liens.

A long form settlement agreement will be prepared by defendants’ counsel and executed by plaintiff.

(Winter Decl., Exh. A.)

All parties accepted and signed this proposal, thereby settling the case for $37,500.00 to be paid to Plaintiff.  (See Winter Decl., Exhs. B, C, & D.) Defendants prepared a long form settlement. (Winter Decl. ¶¶ 9-19.) Thereafter, Plaintiff’s counsel withdrew from representing her and filed an attorney’s lien. This has apparently hindered preparation of the long form settlement, and the finalized settlement remains in flux. 

Defense counsel represents that Plaintiff, now in pro per, has indicated to defense counsel that she wishes to finalize the matter and recognizes the terms of the Proposal. (Id. ¶ 17.) She has not signed and returned a long form settlement, however, “presumably because there is an ongoing dispute between her and her former counsel regarding their attorney’s fees lien.” (Mtn. 4: 15-16.) Therefore, Defendants—ready and eager to end the case—ask the court to enforce the signed Proposal as a final, binding settlement.

C. Analysis

“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.)

Here, Defendants have demonstrated that the parties—all represented by counsel—agreed-to the Proposal following weeks of negotiations with the mediator. Because of a fee dispute between Plaintiff and her former counsel, no long-form settlement has been executed. However, “[w]hen parties intend that an agreement be binding, the fact that a more formal agreement must be prepared and executed does not alter the validity of the agreement.” (See Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 48; see also Harris, 74 Cal.App.4th, 307 [“Where the writing at issue shows ‘no more than an intent to further reduce the informal writing to a more formal one’ the failure to follow it with a more formal writing does not negate the existence of the prior contract”].) 

The Proposal contains the material terms of the settlement. Therefore, the Court finds that the Proposal constitutes an enforceable settlement agreement. 

Consistent with the binding settlement, Defendants are ordered to send the agreed-upon settlement payment to Plaintiff’s former counsel. The check should be addressed to both Plaintiff and counsel. Any liens or fee disputes may be resolved between those parties. 

Accordingly, Defendants’ motion to enforce the settlement agreement is GRANTED upon receipt of a proof of service confirming payment of the settlement to Plaintiff’s former counsel.

At that time, the action will be DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Dated:   May 09, 2024 ___________________________________

FN 1-  Defendants served the moving papers on Plaintiff by mail and email on April 04, 2024. (See Proof of Service.)

FN 2-  A writing is “signed by a party” if it is signed by “[a]n attorney who represents the party.” (CCP § 664.6(b)(2).)

FN 3-  Although not expressly included in the arbitrator’s proposal, this court assumes that “standard terms” includes dismissal of the action with prejudice.