Judge: Stephen P. Pfahler, Case: 19CHCV00155, Date: 2023-02-08 Tentative Ruling

Case Number: 19CHCV00155    Hearing Date: February 8, 2023    Dept: F49

Dept. F-49

Date: 2-8-23 a/f 4-21-23 (1-5-23 ex parte order)

Case #19CHCV00155

Trial Date: N/A

ENFORCE SETTLEMENT

MOVING PARTY: Plaintiff, Richard Bundy

RESPONDING PARTY: Defendant, Lashon Bundy

RELIEF REQUESTED

Motion to enforce settlement

SUMMARY OF ACTION

Plaintiff Richard Bundy and Defendant Lashon Bundy, father and daughter, currently hold title as joint tenants of certain real property in Mission Hills. Plaintiff alleges the grant deed conveying joint title was obtained as a result of manipulation.

On February 22, 2020, Plaintiff filed a complaint for Financial Elder Abuse, Quiet Title, Ejectment, and Cancellation of Instrument. Defendant answered the complaint on May 2, 2019. A lis pendens was recorded on the property on July 16, 2020. (Bertha Bundy passed away on April 6, 2014, and Richard Bundy and Diane Brooks married in 2017.)

On April 8, 2021, the court granted the application appointing Diane Brooks as guardian ad litem for Richard Bundy.

On July 21, 2021, the court denied the motion of Plaintiff for summary judgment. The parties subsequently stipulated to the filing of a first amended complaint, which was filed on August 3, 2021. The first amended complaint lists causes of action for Financial Elder Abuse, Quiet Title, Ejectment, Cancellation of Instrument, and Partition of Real Property. The parties later stipulated to Lashon Bundy filing a cross-complaint for Quiet Title, Slander of Title, Financial Elder Abuse, Deceit, and and Cancellation of Instrument, which was filed on November 29, 2021.

On June, 1, 2022, Plaintiff filed a notice of settlement and amended notice of settlement. At the November 4, 2022, OSC re: Dismissal (Settlement) all parties failed to appear. The court continued the hearing to February 8, 2023.

RULING: Granted.

Plaintiff moves for enforcement of the settlement agreement—ordered listing of the sale of the property—due to the refusal of Lashon Bundy to cooperate in the refinancing of 15156 Kingsbury St., Mission Hills by the September 30, 2022 deadline. As part of the request for enforcement, Plaintiff seeks the appointment of an elisor in order to facilitate the sale of the property. Plaintiff additionally requests for $3,735 in attorney fees.

The court electronic filing system shows no opposition at the time of the tentative ruling publication cutoff. Plaintiff filed a notice of non-opposition.

Plaintiff attaches a copy of the settlement agreement dated May 31, 22022. [Declaration of Mark Martinez, Ex. 1.] A notice of settlement and amended notice of settlement were filed on June 1, 2022, which led to the setting of an OSC re: Dismissal for November 4, 2022. When all parties failed to appear for the November 4, 2022 OSC re: Dismissal, the court set a second OSC re: Dismissal. Plaintiff subsequently brought an ex parte motion, which led to the concurrent setting of the subject motion to enforce under Code of Civil Procedure section 664.6, which states in part:

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, subd. (a).)

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 May 31, 2022, dated agreement is executed by the parties. Section 3 of the agreement provides the substantive terms. Lashon Bundy agreed to four payments of $3,750, with a 120 window to arrange for refinancing of the property with the intention of paying off the two mortgages on the property, with represented balances of $199,835.01 and $39,517.37 at the time of the agreement, and a net payment of $26,000 to Plaintiff. Upon receipt of full payment of $275,000, Plaintiff agreed to dismiss the action and remove all lis pendens. Plaintiff agreed to cooperate with all requirements in order to complete the refinancing. A failure to complete the refinancing within 120 days entitles Plaintiff to seek a sale of the property, with the proceeds split 65%-35% to Plaintiff and Defendant, respectively.

The court docket shows no entry of any dismissal of the action and request for court jurisdiction to retain enforcement rights of the settlement agreement via entry of a judgment. Nevertheless, because all parties signed the settlement, and the case remains on the court docket, the court will consider the motion concurrent with the OSC re: Settlement (Dismissal).

According to Plaintiff, Lashon Bundy refused to sign any refinance documents, thereby leading to a lapse of the September 30, 2022 refinance date. Pursuant to section 3E of the agreement, Plaintiff now seeks to enforce the sale provision. [Martinez Decl.] Plaintiff requests the appointment of an elisor to sign the grant deed, as required for any potential sale of the property.

A court is authorized to appoint an elisor for purposes of compelling obedience to its orders. (Code Civ. Proc., § 128, subd. (a)(4); Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635.) An elisor is governed by Code of Civil Procedure section 262.8, which provides:

Process or orders in an action or proceeding may be executed by a person residing in the county, designated by the court, or the judge thereof, and denominated as an elisor, in the following cases:

(a) When the sheriff and coroner are both parties. 

(b) When either of these officers is a party, and the process is against the other.

(c) When either of these officers is a party, and there is a vacancy in the office of the other, or where  it appears, by affidavit, to the satisfaction of the court in which the proceeding is pending, or the judge thereof, that both of these officers are disqualified, or by reason of any bias, prejudice, or other cause would not act promptly or impartially.”

The instant case does not involve the sheriff or the coroner. Regardless, court authority allows for the appointment of a qualified person to perform the required functions for executing on the settlement agreement. (Rayan v. Dykeman, supra, 224 Cal.App.3d at p. 1635 (footnote 2).) The court finds Plaintiff is entitled to enforce the settlement agreement, and Plaintiff cannot otherwise obtain full relief without execution of a listing agreement, sales agreement, and grant deed in case of a sale.

The court accepts the settlement agreement, and dismisses the action pursuant to the submitted terms of the settlement agreement, with the retention of jurisdiction under Code of Civil Procedure section 664.6. The court subsequently grants the motion to enforce the settlement agreement. The court vests the Clerk of the Court with the authority to execute all necessary documents, including a listing and sales agreement, and grant deed in compliance with the terms of the settlement agreement.

The court denies the request for attorney fees. The motion itself lacks any statutory basis for the recovery of fees. The court acknowledges the right to seek fees pursuant to section 3M of the agreement, but refuses to address the legally unsupported argument. Plaintiff may file a separate motion for recovery of attorney fees upon the conclusion of the execution of the settlement agreement.

Plaintiff to give notice.