Superior Court of California

County of Los Angeles

Department 50

CITY OF COMMERCE, Plaintiff, vs. CARLOS GALVAN JR., et al., Defendants.	Case No.:	21STCV20773
	Hearing Date:	October 24, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: CITY OF COMMERCE’S MOTION TO ENFORCE SETTLEMENT

Background

Plaintiff City of Commerce (“Plaintiff”) filed this action on June 2, 2021 against Defendant Carlos Galvan Jr. (“Defendant”). The Complaint alleges causes of action for

(1) public nuisance and injunctive relief, (2) municipal code violations, and (3) declaratory relief. Plaintiff alleges, inter alia, that “[t]his Complaint is filed by the City for the purposes of abating a public nuisance and enjoining the maintenance and commission of local and state law violations on that certain real property located at 1333 South McBride Ave., Commerce, in the County of Los Angeles, California…” (Compl., ¶ 2.)

On March 22, 2023, a “Settlement Agreement Between City of Commerce and Carlos Galvan Jr.; Order” was filed in this action. The Order is dated March 21, 2023 and provides, inter alia, that “[t]he case is dismissed without prejudice and the Court retains jurisdiction pursuant to CCP section 664.6.”

Plaintiff now moves “for an order enforcing the settlement agreement entered into by and between the parties before this Court on March 8, 2023 and approved by the Court on March 21, 2023.” Defendant opposes.

Discussion

“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.” (Code Civ. Proc., § 664.6, subd. (a).)

“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, 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 [internal citations omitted, emphasis in original].)

As an initial matter, Plaintiff asserts that Defendant’s opposition is untimely and should be disregarded. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” Nine court days prior to the October 24, 2024 hearing date is October 11, 2024. Plaintiff’s opposition was filed well after this date, on October 17, 2024. In addition, the proof of service attached the opposition indicates that the opposition was served by electronic service on October 17, 2024. Under ¿Code of Civil Procedure section 1010.6, subdivision (a)(3)(B)¿, “[a]ny¿period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” Eleven court days before October 24, 2024 is October 9, 2024. However, because Plaintiff has submitted a reply brief that addresses the arguments made in Defendant’s opposition,¿the Court elects to exercise its discretion to consider the¿untimely opposition.¿(California Rules of Court, rule 3.1300,¿subd. (d).)

As set forth above, on March 22, 2023, a “Settlement Agreement Between City of Commerce and Carlos Galvan Jr.” (herein, the “Settlement Agreement”) was filed in this action.

The Court notes that the Settlement Agreement provides, inter alia, that “[t]his AGREEMENT concerns GALVAN’s property located at 1333 South McBride Avenue in Commerce, Assessor’s Parcel No. 524-4001-009, County of Los Angeles, State of California (‘subject property’).” (Settlement Agreement, p. 2.)

The Settlement Agreement further provides that “the PARTIES agree as follows with respect to the three (3) scenarios and outcomes arising from the inspection of GALVAN’ s subject structure:

(1) First Scenario: The engineer’s inspection results in the finding that GALVAN’s subject property can be repaired and made to comply with all above code provisions and the cost of all repairs is affordable to GALVAN. In this scenario, GALVAN agrees to effectuate all repairs and correct all violations on his subject property (as identified and listed in Exhibit ‘A’ to this AGREEMENT) and allow the CITY to conduct an inspection of same thereafter.

a. In the event Galvan seeks a permit of the subject structure as an Accessory Dwelling Unit, as a duplex or as a second single family residence, Galvan shall modify the subject structure, as necessary, so that it is in compliance with the L.A. County Code and the City of Commerce Code including but not limited to Title 15 and Title 19.

(2) Second Scenario: The engineer’s inspection results in the finding that GALVAN’s subject property can be repaired and made to comply with all above code provisions, but the costs of these repairs are not affordable to GALVAN. In this scenario, GALVAN agrees to the demolition of the entire subject structure.

a. In this 2nd scenario, if GALVAN ever decides to sell the property located at 1333 South McBride Avenue in Commerce, Assessor’s Parcel No. 524-4001-009, County of Los Angeles, State of California, GALVAN will make all required disclosures to the potential buyer(s) as required by existing law including, but not limited to, all the Code violations existing on the subject property as outlined in Exhibit ‘A.’ GALVAN further agrees to comply with all existing legal requirements in the sale of same. The City of Commerce does not waive any of its rights existing under law nor pursuant to this AGREEMENT.

(3) Third Scenario: The engineer’s inspection results in the finding that GALVAN’s subject property cannot be repaired to comply with all above code provisions. In this scenario, GALVAN agrees to the demolition of the entire subject structure.

(4) For any of the scenarios listed above, GALVAN may apply for a variance or conditional use permit. The CITY shall consider any such application as it would in the ordinary course of business and use its discretion in granting or denying it. Nothing in this paragraph obligates the CITY to grant any application for variance or conditional use permit.

(5) As to the above 3 scenarios outlined in paragraphs 1 (b)(1)-(3), GALVAN agrees that he will have no more than 195 days to cure all subject violations on his property, or to demolish in its entirety. In the event GALVAN applies for a variance or conditional use permit, the 195-day deadline will toll starting from the date GALVAN’s application for variance or conditional use permit is filed/submitted with the CITY to the date that the CITY issues its decision on grant or denial of GALVAN’s application for a variance or conditional use permit.” (Settlement Agreement, ¶ 1(b).)

In support of the instant motion, Plaintiff submits the Declaration of Louis Morales, the Interim Director of Economic Development and Planning for the City of Commerce. (Morales Decl., ¶ 1.) Mr. Morales states that “[t]o date, Defendant Carlos Galvan has not complied with the terms of the Settlement Agreement (Exhibit ‘A’). To date, Defendant Galvan has not cured any of the structural defects as outlined in the Settlement Agreement. Defendant Galvan has not submitted any formal approved plans for the correction of the subject structural defects as outlined in the Settlement Agreement. Further, Defendant Galvan has not even submitted an application to the City for the variance that he adamantly demanded as a provision of the instant Settlement Agreement. In sum, Defendant Galvan’s Illegal Structure on 1333 South McBride Avenue in Commerce, Assessor’s Parcel No. 524-4001-009, County of Los Angeles, State of California remains uncured. According to the Settlement Agreement, Defendant Galvan had 195 days to either cure all defects or demolish the Illegal Structure – that is, October 2, 2023.” (Morales Decl., ¶ 4.) As discussed, on March 21, 2023 the Court issued an Order on the subject Settlement Agreement. (See Settlement Agreement filed March 22, 2023.) The Court notes that 195 days after March 21, 2023 is October 2, 2023.

Plaintiff asserts that “Defendant Galvan’s failure to cure the subject Code violations is a material breach of the Settlement Agreement. Accordingly, the City respectfully requests that the Court enforce the terms of the Settlement Agreement and – per the Settlement Agreement – order destruction of the Illegal Structure.” (Mot. at p. 7:25-28.)

Plaintiff also asserts that “per the Settlement Agreement and Stipulated Order, Defendant Galvan should be ordered to pay the City $41,000.00.” (Mot. at p. 8:7-8.) The Court notes that the Settlement Agreement provides that “[t]he PARTIES further agree to a stipulated judgment [‘Stipulated Judgment’] in the amount of $41,000.00 less any amounts already paid. In the event that GALVAN fails to comply with the terms of the instant agreement, GALVAN agrees that the CITY is entitled to file the Stipulated Judgment in the amount of $41,000.00 less any amounts already paid. In the event the Stipulated Judgment is filed, interest on the judgment only accrues after the date it is filed.” (Settlement Agreement, ¶ 1(a).)

As discussed, Defendant opposes the motion. In his declaration in support of the opposition, Defendant states that “[i]n order to fulfill all of the requirements of the agreement…and cure the defects in my property…I was informed by the city to first submit a set of plans for their review and approval.” (Galvan Jr. Decl., ¶ 5.) Defendant states that “[o]n June 27, 2023, a first set of plans for review of the 2-story dwelling at my property was delivered to Sonia Griego, who works for the City…Around that time, I requested from Ms. Griego, a packet so I may submit [sic] an application for a Variance permit which I submitted, however, I was told by Ms. Griego that prior to the Variance permit being approved, the Planning Division needed to approve all plans first.” (Galvan Jr. Decl., ¶ 6.)

Defendant states that “[o]n July 17, 2023, I received a letter from Ms. Griego that the plans I had submitted were incomplete and she gave me a list of comments for me to fix and told me to re-submit the plans with those resolved issues.” (Galvan Jr. Decl., ¶ 7.) Defendant states that “[a]round August 2023, I submitted my 2^nd set of plans to the city for their review. A little over a month later, I was informed again that the plans needed new corrections.” (Galvan Jr. Decl., ¶ 8.) Defendant further states that “[o]n March 3, 2024, a revised 3^rd set of plans was submitted for review and approval by Ruben Calderon…Ms. Griego responded on March 6^th that she had received the plans and would accurately review them and get back to me, but this never occurred.” (Galvan Jr. Decl., ¶ 9.)

Defendant states that “[a]fter submitting the 3^rd set of plans to the city, I began to call and email the city on a frequent basis but they were not responding to me.” (Galvan Jr. Decl., ¶ 10.) Defendant states that “I continued with my constant communications and even reached out to the city’s administration department and still received no response.” (Galvan Jr. Decl., ¶ 13.)

In the opposition, Defendant asserts that the instant motion is premature, as “the 195-day deadline is paused due to the Variance Permit that the Defendant applied for.” (Opp’n at p. 3:23-24.) Defendant asserts that he “actively took steps to comply with the agreement and even applied for the Variance permit which was within his right to do. The Plaintiffs [sic] are in breach of the Settlement Agreement by failing to respect the toll that needed to be set in place once the Defendant applied for the variance permit.” (Opp’n at p. 5:3-6.)

As discussed above, the Settlement Agreement provides, inter alia, as follows:

In the reply, Plaintiff asserts that “Galvan never applied for a variance with the City. And no time was tolled. Accordingly, Galvan was still required to comply with the terms of the Settlement Agreement by October 2, 2023. This was last year.” (Reply at p. 2:17-20.) However, Plaintiff does not appear to provide any evidence demonstrating that Defendant “never applied for a variance with the City.” (Reply at p. 2:17-18.) Plaintiff also asserts that “there is no ‘third application’ pending with the City,” but no evidence is provided to support this assertion. (Reply at p. 3:3.)

In light of Defendant’s untimely filing and service of the opposition, as well as the arguments raised therein, the Court finds that further briefing is appropriate regarding the issue of Defendant’s compliance with the Settlement Agreement. Accordingly, the Court continues the hearing on the instant motion as discussed in further detail below.

Conclusion

Based on the foregoing, the Court continues the hearing on Plaintiff’s motion to enforce settlement to ____________, 2024, at 10:00 a.m. in Dept. 50.

On or before ____________, 2024, Plaintiff may file and serve supplemental briefing that addresses the points raised in Defendant’s opposition. Courtesy copies must be delivered to Dept. 50. On or before ____________, 2024, Plaintiff may file and serve a response thereto. Courtesy copies must be delivered to Dept. 50.

Plaintiff is ordered to provide notice of this ruling.

DATED: October 24, 2024 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court