Judge: Stephen P. Pfahler, Case: 19CHCV00034, Date: 2023-03-07 Tentative Ruling

Case Number: 19CHCV00034    Hearing Date: March 7, 2023    Dept: F49

Dept. F-49

Date: 3-7-23 c/f 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: Granted.

Plaintiffs James and Helen Dennis move for enforcement of the parties’ settlement agreement. The relevant terms of the agreement required 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 represent the property sold on July 22, 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. On an unspecified date, the City of Los Angeles Department of Water and Power and/or Gas Company refunded a total $51,151.75 in fees paid. The fees are currently being held in an escrow account. [Declarations of Michelle Sorice, Ex. 2, and Craig Forry.]

Plaintiffs therefore seeks judgment for a certain amount of funds based on both a portion of the sales proceeds and attorneys fees incurred in the adjudication of the subject action. Plaintiffs previously sought a judgment of $77,897.84, which was based was based at least in part on a request for $42,946.19 and $4,951.65 in attorney fees and costs. The court was unable to enumerate any accounting for the equity cash out from the sale of the premises, including the additional $30,000 paid to Lison, as well as justification for the requested attorney fees. The court therefore requested supplemental briefing for clarification. Plaintiffs supplemental brief now revises the request for a total judgment of $64,997.84 based on $30,000 sought from the equity gain on the sale and extra payment made to Lison on threat of holding up the close of escrow, and the remaining $34,997.48 in attorney fees based on the “common benefit” method for recovery of attorney fees.

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 requested attorney fees arise 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.)

Plaintiffs make the demand for attorney fees based on reference to the stipulation. The claim 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.” [Ferry Decl., Ex. 4.] The court otherwise finds no other reference in either of the stipulations. 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.]

Plaintiffs also agreed to a 50-50 split based on joint and equal ownership of the premises. Plaintiffs request the additional $30,000, because Lison received said extra amount following a demand for the additional backed up with a threat to deny closure of escrow unless the extra $30,000 was paid. [Declaration of Helen Dennis.]

The court finds the unopposed motion justifies consideration of “common benefit” imposed attorney fees. Plaintiffs again specifically refer back to the original motion and declaration of counsel. [Forry Decl., ¶ 14, Ex. 6.] The attached invoices show a total balance billed of $39,446.19. [Id.] As provided in the standard above, the court must allocate fees based on ownership interest. (Stutz v. Davis, supra, 122 Cal.App.3d at pp. 4-5.) The court rejects the request for an allocation beyond the equal ownership limitations requested in the supplemental brief, and therefore splits the incurred bills and fees in half. The court first however deducts the 0.4 hours on the “8-29” entry, which at a rate of $300/hour comes to a deduction of $120 for a remaining balance of $39,326.19. [Forry Decl., Ex. 6]. (Stutz v. Davis, supra, 122 Cal.App.3d at p. 6.) An equal split of fees renders Plaintiffs entitled to $19,663.10 in total fees and costs.

Again, given the lack of any opposition to the motion or opposing supplemental brief, the court also finds the allocation of the additional $30,000 to Plaintiffs justified given the unchallenged representation that the additional funds were only paid due to a threat of Lison and for no other equitable basis of recover. The additional $30,000 therefore equalizes the equitable distributions. The payment of the $19,663.10 in attorney fees shall also be deducted from the remaining principal in escrow. The remaining funds following the deduction for attorney fees and the $30,000 equity payment shall be distributed equally among the parties.

Moving parties to give notice.