Judge Stephen P. Pfahler, Case Number: 21CHCV00810, Date: 2023-09-08 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00810, Date: 2023-09-08 Tentative Ruling

Case Number: 21CHCV00810 Hearing Date: September 8, 2023 Dept: F49

Dept. F-49

Date: 9-8-22

Case #21CHCV00810

Trial Date: 8-28-23 c/f 3-20-23

ENFORCE SETTLEMENT AGREEMENT

MOVING PARTY: Plaintiff/Cross-Defendant, Rick Hamm Construction, Inc., et al.

RESPONDING PARTY: Unopposed/Defendant/Cross-Defendant, Avex Builders Inc.

RELIEF REQUESTED

Motion for Stakeholder Deposit and Discharge of Stakeholder

SUMMARY OF ACTION

Plaintiff Rick Hamm Construction, Inc. alleges entry into a sub-contract with Avex Builders, Inc. on December 28, 2020 for certain demolition and concrete work on a construction project located at 9223 Owensmouth Ave., Chatsworth. The total contract sum was $161,995. Plaintiff alleges an outstanding balance of $131,995 due. Plaintiff also seeks $3,500 in materials also agreed upon pursuant to a second written contract executed on March 17, 2021.

On October 14, 2021, Plaintiff filed a complaint for Money Due on Contract, Foreclosure of Mechanics Lien, Account Stated, Open Book Account, Reasonable Value of Labor and Materials Furnished, Violation of Prompt Payment Statutes, and Claim on Contractors License Bond. On November 19, 2021, Defendant Western Surety Company filed a general denial, and cross-complaint for interpleader.

On January 3 and 7, 2022, Avex Builders, Inc., and Danone US, LLC answered the complaint. On January 18 and 20, 2022, Avex Builders, Inc. and Rick Hamm Construction, Inc. answered the Western Surety Company cross-complaint.

On April 7, 2022, the clerk entered defaults against No Limit Flooring and Edon Primrose Corporation dba Diamond Glass on the Western Surety cross-complaint. On April 25, 2022, Defendant Danone US, LLC filed a cross-complaint against Avex Builders, Inc. for Equitable Indemnity/Unjust Enrichment.

On April 28, and July 13, 2022, Western Surety Company substituted in J.H. Bryant Jr., Inc. and The Pegasus School for Roes 6 and 7. Western Surety Company dismissed J.H. Bryant Jr., Inc. on May 5, 2022. On. October 19, 2022, Western Surety dismissed The Pegasus School from its cross-complaint.

Meanwhile, on August 3, 2022, the court granted the unopposed motion of Western Surety Company for leave to deposit the $7,500 contractors bond with the court, and discharge from the action. The notice of deposit of interpleader funds was filed on August 9, 2023, showing a deposit of $6,000 ($7,500 less $1,500 in approved in fees and costs).

RULING: Granted/Denied without Prejudice.

Plaintiff/Cross-Defendant, Rick Hamm Construction, Inc., and defendant, cross-defendant, Danone US, LLC move to enforce the settlement agreement against Defendant/Cross-Defendant, Avex Builders Inc. with entry of a $150,000 judgment. Moving parties contend the three parties entered into a settlement agreement, whereby Avex agreed to a payment of $150,000 and Danone, $25,000, no later than September 1, 2022. [Declaration of Dustin Lozano, Ex. A: Settlement Agreement and Mutual Release.] Danone complied with the agreement, while the Avex payment remains outstanding almost one year later. [Lozano Decl.]

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.)

Moving party filed a notice of non-opposition and the court electronic filing system shows no opposition from Avex Builders Inc. The court finds the unopposed motion establishes the existence of the executed settlement agreement and a violation of the terms, thereby entitling moving parties to a judgment. [Settlement Agreement and Mutual Release, Section 13.] The motion is therefore granted. As a matter of court policy, however, the court orders moving parties submit a separately noticed motion for attorney fees. [Id., Section 14.]

Plaintiff/Defendant/Cross-Defendant to give notice to all parties.