Judge Ronald F. Frank, Case Number: YC072196, Date: 2023-12-13 Tentative Ruling

Judge: Ronald F. Frank, Case: YC072196, Date: 2023-12-13 Tentative Ruling

Case Number: YC072196 Hearing Date: December 13, 2023 Dept: 8

Tentative Ruling

HEARING DATE: December 13, 2023¿

CASE NUMBER: YC072196

CASE NAME: Toshiko Nakamura; Takashi Nakamura v. Nourit Korzennik, et al.

MOVING PARTY: Plaintiffs and Cross-Defendants, Toshika and Takashi Nakamura

RESPONDING PARTY: Defendant, Nourit Karzennik

TRIAL DATE: Not Set.

MOTION:¿ (1) Plaintiffs’ Motion to Enforce Settlement Agreement

Tentative Rulings: (1) GRANTED in part. The motion to enforce is granted, liquidated damages are stayed through 1/1/24, Defendant shall vacate by 1/1/24 or be subject to the liquidated damages amount per violation, and $2,500 in reasonable attorney’s fees are awarded.

I. BACKGROUND¿

A. Factual¿

This lawsuit is based on Plaintiffs’ alleged suffering years of mistreatment at the hands of their uphill-neighbor in Rolling Hills, Nourit Korzennik, Korzennik’s alleged torment of the Nakamuras included, but was not limited to: spitting on Mrs. Nakamura; mooning Mrs. Nakamura and her family; performing sexually offensive and lewd gestures toward the Nakamuras; illegally trespassing onto the Nakamura’s property twice and chopping down their trees that spanned 365 feet; trapping the Nakamuras in their car; photographing and recording the Nakamura’s and their family, along with workers and visitors without their consent, including by the use of drones; harassing and preventing utility and other workers from entering the Nakamura property – going so far as to hit a worker with her car – promoting a call to the Los Angeles County Sherriff’s Office on this and many other occasions; Sherriff’s Officers advising the Nakamuras to obtain a restraining order on multiple occasions to protect their personal safety, which followed up on twice; Korennik’s multiple frivolous lawsuits against the Nakamuras; and abuse of the administrative process to block the rebuilding of the Nakamura family home that burned in a fire over a decade ago.

Plaintiffs note that in October 22, the parties were able to reach a settlement agreement. Plaintiffs note that the primary consideration for the settlement, as exemplified by the position of the settlement term in the second sentence of the settlement, was Korzennick’s agreement to vacate their residence that was located next door to Plaintiffs’ residence no later than August 16, 2023. Plaintiffs also note that Korzennik agreed to pay $1,000 per breach in liquidated damages, and agreed to pay the Nakamuras’ attorney’s fees and costs in the event of breach. Plaintiffs also contend that before the matter was dismissed pursuant to the settlement, the parties filed with the Court a stipulation to retain jurisdiction and that stipulation was filed on November 28, 2022. Plaintiffs contend the case was dismissed the following day. As such, Plaintiffs have brought this Motion to Enforce Settlement.

B. Procedural

On October 30, 2023, Plaintiffs filed this Motion to Enforce Settlement. On November 30, 2023, Defendant filed an opposition. On December 6, 2023, Plaintiffs filed a reply brief.

¿II. ANALYSIS

A. Legal Standard

It is the strong public policy of California to encourage the voluntary settlement of litigation. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359.) To that end, the law provides for an expedited procedure for enforcing a settlement once it has been agreed upon. Under Code of Civil Procedure, section 664.6:

(a)¿If parties to pending litigation stipulate, in a writing signed by the parties outside¿of¿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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.”

“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) This settlement-enforcement statute recognizes that a settlement may be summarily enforced either where the settlement was made orally before the trial court or where it was made in writing outside the presence of the court. “Nothing in the statutory language suggests that, in a multiparty action, all parties must agree to the settlement in the same manner. And as long as the parties agree to the same material terms, be it orally or in writing, the purpose of section 664.6 is satisfied.” (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428)(emphasis in original). In Elyaoudayan, multiple parties agreed to the settlement orally before the trial court, and all but one of those parties signed the written agreement. Although the written agreement—a seven-page document—included terms that were not part of the oral agreement, the two agreements shared the same material terms. The Second District enforced that settlement even though most parties manifested their consent in writing and one party who refused to sign the 7-page longer form settlement agreement did not sign the written agreement. “The oral agreement's statement that the parties would later sign a written agreement did not affect the enforceability of the oral settlement under section 664.6.” (Id at pp. 1429–1430.) But in that case, the oral agreement was “before the court” rather than at a mediation, and the parties who did not reach the oral agreement (because they were absent from the settlement conference) later read and signed the long-form agreement.

Where an oral agreement “shows it was not intended to be binding until a formal written contract is executed, there is no contract.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) “California law is clear that there is no contract until there has been a meeting of the minds on all material points.” (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357-358.)

“Often, in cases where an oral settlement is placed on the record in the trial court, a written agreement will follow. If difficulties or unresolvable conflicts arise in drafting the written agreement, the oral settlement remains binding and enforceable under section 664.6. Having orally agreed to settlement terms before the court, parties may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms. (Elyaoudayan, supra, 104 Cal.App.4th at p. 1431.) Here, the claimed oral settlement was agreed upon before a mediator, not before the Court. While the Court can enforce a signed narrower settlement agreement, it cannot enforce a broader oral agreement that was not made before the court. “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations omitted], nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Here, the Court lacks admissible evidence bearing on exactly what it was that the parties orally agreed upon that is not memorialized in the writing signed by the parties.

B. Discussion

Plaintiffs contend that all issues were resolved under the settlement agreement, that the agreement is legally valid and binding, was properly executed by the parties, and there is no bar to entry of judgment and enforcement of the agreement. The Plaintiffs also request the Court set an Order to Show Cause re Contempt and payment of daily liquidated damages of $1,000. Lastly, Plaintiffs request Korzennik reimburse the Nakamuras the $4,000 incurred in litigating this issue pursuant to the attorney’s fee provision of the settlement.

In opposition, Korzennik requests an extension to perform. Korzennik asserts that the agreement contemplates she would be renting at least, if not selling, the property before she moves out, but neither she nor her son understood that term of the settlement agreement required her to move out without having rented or sold the property, carrying all of those expenses in addition to the expenses associated with a new house or rental. The Court does not find this alleged misunderstanding to be a reasonable one. The previous settlement stemmed out of Plaintiffs’ alleged harassment from Korzennik, and ultimately required her to be off the premises completely either through sale or through renting to a non-family member. The first paragraph of the settlement clearly indicates: “Move-Out: Dr. Nourit Korzennik (“Dr. Korzennik”) will vacate 26 Cinchring Rd, Rolling Hills, CA 90274 (“26 Cinchring”) by no later than August 26, 2023…To the extent Dr. Korzennik or the related persons shall seek to rent out 26 Cinchring to a tenant, such tenant shall not be in any way known to, related to, or affiliated with Dr. Korzennik or the related persons.” (Declaration of Jeffrey Lewis (“Lewis Decl.”), ¶ 3, Exhibit 1, para. 1(a).) The word “vacate” is unambiguous and has no condition precedent or contingency attached to it.

Defendant Korzennik also argues that the Plaintiffs do not reside at the neighboring property, 24 Cinchring, and have not rebuilt the property. It is Defendant’s position that the property will not be ready until at least mid-summer 2024, and that the Nakamuras have not lived at 24 Cinchring since before 2009. Thus, Korzennik argues Plaintiffs will not be prejudiced by an extension of the deadline for performance by her to move out of her home. However, Korzennik contends that performance has been impractical and near impossible for many factors and reasons, all set forth in the declarations of her, Jaron Brunner, and Sara Willitt – noting the state of the housing market, and Korzennik’s diagnosis with agoraphobia

First, the Court notes that the fact that Plaintiffs are not residing on the 24 Cinchring property is unavailing. By Korzennik’s own argument that they have not lived on the property since 2009, but that the actions complained of and eventually settled took place after 2009, actually work against Korzennik. These settlements and requirements specified in the settlement agreement were all to protect Plaintiffs despite them not living on the property.

Next, Korzennik contends that she has been unable to perform due to impracticability and near impossibility. Some of the reasons described in the included declarations attached to the opposition are as follows: (1) Korzennik is being treated for agoraphobia (feeling fearful and anxious about leaving her familiar home environment); (2) there is a monetary necessity and the considerable logistical hurdles in selling as well as moving and storage fees; (3) Korzennik is looking for a 3 bedroom 3 bathroom home in South Redondo Beach near her son and grandchildren, but that there is currently nowhere to go short of the expense of a hotel and the expense of moving twice and long-term storage; (4) Korzennik asserts that the market is limited at this time, has been since November 2022, and that she has toured possible new residences from June 2022 to November 2022 and none matched her needs or tastes; (5) each declaration “hopes” better conditions will become available by Summer 2024.

Defendant Korzennik relies on numerous cases to define impossibility and impracticability – none of which involve a settlement, or being found in contempt of a court order. Instead, the cases involve contracts, calculations of damages, etc.. None of the cases relied upon by Korzennik discuss the extension of time to allow for an individual to comply with an agreed upon settlement.

However, in their reply brief, Plaintiffs city to Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, to argue that Korzennik’s costs of moving out does not excuse performance, noting the Court in Kashmiri, held “[f]acts which may make performance more difficult or costly than contemplated when the agreement was executed do not constitute impossibility.” (Kashmiri, supra, 156 Cal.App.4th at 839.) In Kashmiri, the first district affirmed summary judgment in favor of students challenging the University’s fee increases in 2003. The Court held that implied-in-fact contracts were created by students and the university when students accepted the university’s offer of admission, and that contract law applied to students’ claims against the increase in various student fees. (Id. at 831.) The Court also recognized that the university’s policy may have been incorporated as a term of the contract. (Id. at 830.) The university attempted to argue that the increase was for the purpose of dealing with the state’s fiscal problems. However, the Court held the fiscal problems experienced by the university did not excuse its performance. (Id. at 839.)

Plaintiffs also cite to Kennedy v. Reece (1964) 225 Cal.App.2d 717, where the Fifth District Court of Appeal held that although performance may be so difficult and expensive that it is described as ‘impracticable,’ and enforcement may be denied on the ground of impossibility, “does not mean that any facts, which make performance more difficult or expensive than the parties anticipated, discharge a duty that has been created by the contract.” (Kennedy, supra, 225 Cal.App.2d at 724.) The Court continued that “[f]acts which make performance harder or more costly than the parties contemplated when the agreement was made do not constitute a ground for the successful interposition of the defense of “impracticability” unless such facts are of the gravest importance. If it be noted that this is merely a difference of degree rather than a difference in kind, such notion is accurate.” (Ibid.) The Court further discussed that “[i]f what is agreed to be done is possible and lawful, it must be done. Difficulty of accomplishing the undertaking will not avail the party who commits a breach of the contract. If a party expressly undertakes to do a thing lawful in itself, and not necessarily impossible under all the circumstances, and does not do it, he must make compensation in damages, though the performance was rendered impracticable, or even impossible, by some unforeseen cause for which no provision is made and over which he had no control, but against which he might have provided in his contract. The rule has its foundation in common sense and honesty, and compels parties to abide by their contracts. Any other rule would leave all contracts in a sea of uncertainty without rudder or compass.” (Id. at 725.)

Here, the Court notes that Korzennik entered into this settlement agreement on October 11, 2022. Korzennik also indicates that less than a month later, the real estate market has presented adverse conditions. However, none of the many declarations submitted on behalf of Korzennik illustrate the difference in the market from when Korzennik entered into her agreement from when this adverse market initially started. The Court notes that trends in the real estate market, like tuition costs at a school are likely to increase throughout the years, however, none of these declarations indicate that the market is so adverse as to make it impractical and impossible for Korzennik to move. Further, even if this Court were to agree to extend the period of performance to sometime in Summer 2024, there is nothing in the opposition papers to indicate that the market still may not be adverse, or that Korzennik will find a home in which she finds to be ideal and up to her usual living standards. Moreover, the Court understands that Korzennik is suffering from agoraphobia, however, if the Court were to rely on Korzennik’s fear of leaving her home to grant an extension, there is no telling that Korzennik would ever get over this fear, and thus no telling how long an extension would end up lasting.

Taking all matters into account, the Court GRANTS the motion to compel enforcement but will stay the enforcement of the liquidated damages provision through January 1, 2024. Whether Defendant does or does not find a suitable permanent home by year end, she must vacate and move out of the Cinchring property, even if into a temporary lodging circumstance, because that is what she promised to do in a binding and enforceable settlement agreement. For violating the settlement agreement, Korzennik will be required to pay $1,000 per violation to Plaintiffs commencing January 2, 2023, as well as pay for their reasonable attorneys’ fees, as discussed in greater detail below.

Attorneys’ Fees

Per the settlement agreement, Korzennik agreed to pay reasonable attorneys if she failed to abide by the settlement agreement terms and required Plaintiffs to defend themselves, and enforce each individual breach of the agreement. As far as the Court is concerned, there is only one breach of the settlement agreement – failure to vacate. Plaintiffs have requested attorney’s fees in the amount of $4,000, which is explained in Lewis’s Declaration. Lewis contends that his hourly rate is $800, that he spent one hour drafting the moving papers, anticipated another hour reviewing an opposition and preparing a reply, and an anticipated three hours to prepare for and attend the hearing. The Court finds that the hours spent and anticipated on the motions to be reasonable, but the estimate time preparing for and appearing at the hearing to be excessive. Additionally, Lewis’s claimed hourly rate is excessive. As such, the Court GRANTS attorneys’ fees in the lowered amount of $2,500 against Korzennik to be paid to Plaintiff’s counsel Mr. Lewis by January 16, 2024.

Plaintiffs are ordered to give notice.