Judge: Stephen P. Pfahler, Case: 19CHCV00034, Date: 2023-01-10 Tentative Ruling

Case Number: 19CHCV00034    Hearing Date: January 10, 2023    Dept: F49

Dept. F-49

Date: 1-10-23 c/f 12-2-22

Case # 19CHCV00034

Trial Date: N/A

ENFORCE SETTLEMENT

MOVING PARTY: Plaintiffs, James and Helen Dennis

RESPONDING PARTY: Defendant, Invictus Lison

RELIEF REQUESTED

Motion to Enforce the Settlement Agreement

SUMMARY OF ACTION

On January 14, 2019, plaintiffs James and Helen Dennis, et al. filed a verified complaint for Partition of Real Property and Declaratory Relief. The complaint arises from Plaintiffs’ joint ownership of 11449 Sproule Ave., Pacoima, with predecessor Roxella Hudson. Plaintiff Helen Dennis is the daughter of Hudson. Upon the death of Hudson on November 27, 2018, defendant Invictus Lison represented an interest as successor trustee of the trust previously established by Hudson.

Plaintiffs filed the instant complaint with the intention of compelling a sale of the property, which defendant refuses to agree. Plaintiffs also contend Defendant continues to withhold rents generated from the property.

On June 28, 2021, the parties submitted a stipulated settlement with retention of jurisdiction by the court for enforcement. The court entered the order on July 13, 2021. The parties dismissed their respective complaint and cross-complaint on September 13 and 15, 2021.

On February 4, 2021, the court entered the stipulation of the parties for settlement of the action, and the stipulation for the court to dismiss the action and retain jurisdiction under Code of Civil Procedure section 664.6. The court subsequently dismissed the action subject to retention of jurisdiction for enforcement of the settlement.

RULING: Continued for Supplemental Briefing.

Plaintiffs James and Helen Dennis move for enforcement of the parties’ settlement agreement. The relevant terms of the agreement require the parties to cooperate in the listing and sale of the property. The sale proceeds will be left in an escrow account pending further agreement of the parties, or order of the court.

Plaintiffs seek a judgment of $77,897.84. The request at least in part is based on a request for $42,946.19 and $4,951.65 in attorney fees and costs. Plaintiffs make the request for attorney fees based on reference to the stipulation. The demand presumably references the language of section 3, which states: “All claims and defenses of the Parties, including all claims to the net proceeds, and for attorney’s fees and costs, shall be reserved until further settlement of the Parties or further order of the court.” The court otherwise finds no other reference in either of the stipulations.

Code of Civil Procedure section 664.6:

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, 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.

(Code Civ. Proc., § 664.6.)

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Accordingly, “parties” under section 664.6 means the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”).) Additionally, the settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.)

“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) When ruling on a section 664.6 motion, the trial court acts as a trier of fact to determine whether a settlement has occurred, which is also an implicit authorization for the trial court to interpret the terms and conditions to settlement. (Id.) The court may not “create the material terms of a settlement,” and must instead decide on what terms the parties agreed upon. (Id.; Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1460; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565-566.) “In acting upon a section 664.6 motion, the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone.” (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.)

The property sold on July 20, 2022. It’s not clear from the motion how much the sale netted, but the escrow company distributed $300,000 to both parties, plus an additional $30,000 to defendant Lison. Again, it’s not clear why this additional amount was distributed. On an unspecified date, the City of Los Angeles Department of Water and Power refunded $51,151.75 in fees paid. The fees are currently being held in an escrow account. [Declarations of Michelle Sorice and Craig Forry.]

The requested judgment itself arises from a claim of “common benefit” provided to all parties for legal services rendered. The costs of partition include: “Reasonable attorney's fees incurred or paid by a party for the common benefit.” (Code Civ. Proc., § 874.010, subd. (a).) Apportionment of fees should be accorded by ownership interests. (Stutz v. Davis (1981) 122 Cal.App.3d 1, 4–5.) “(a) The costs of partition as apportioned by the court may be ordered paid in whole or in part prior to judgment. (b) Any costs that remain unpaid shall be included and specified in the judgment.” (Code Civ. Proc., § 874.110.) Fees are subject to the discretion of the court. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967–968; see Capuccio v. Caire (1932) 215 Cal. 518, 529-530.)

Counsel represents the fees were incurred for the common good, represented as assisting the real estate agent with the five prospective buyers, including escrow for each buyer. [Forry Decl., ¶ 14.] The bills themselves show a number of fees beyond assisting the real estate sales agent, and appear to reflect the actual litigation of the subject action. [Forry Decl., ¶ 14, Ex. 6.] One entry references an attorney lien, which is specifically barred from consideration. (Stutz v. Davis, supra, 122 Cal.App.3d at p. 6.) Furthermore, counsel states that total incurred fees for the common benefit total $42,946.19, though the attached invoices show a total balance billed of $39,446.19. [Forry Decl., ¶ 14, Ex. 6.]

Notwithstanding the concerns regarding billing appearing directly related to the litigation rather than the common good, and the disparity in the represented amount, the court is also additionally cognizant of the requirement to allocate fees based on ownership. Equal ownership of the property remains undisputed, thereby rendering the basis of support for more than half of the incurred fees a point of further concern for the court. It’s not clear if and how the $30,000 additional payment to Defendant is accounted for, if applicable.

The result of the subject questions leads to an issue with the request: The court cannot enumerate the request for the $77,897.84 judgment. While the court can somewhat distinguish between fees strictly for advocating the positions of the Plaintiffs versus fees indicating actual consultation on the transaction, again, the right to all requested fees and allocation remains insufficiently articulated. Without a specific, enumerated amount, the court refuses to execute a judgment.

The court therefore orders supplemental briefing on the issue of recoverable fees specifically articulated for the “common benefit,” equal allocation of fees, and support for the total requested judgment. The court sets a new hearing date for March 7, 2023, at the time of the hearing. The parties are ordered to submit supplemental briefs no later than nine (9) court days from the date of the hearing—February 22, 2023. Briefs shall be no more than five (5) pages from each side.

Moving parties to give notice.