Judge: Teresa A. Beaudet, Case: 23STCV18073, Date: 2024-03-04 Tentative Ruling

Case Number: 23STCV18073    Hearing Date: March 4, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Lancaster Eagle, LLC (“Plaintiff”) filed this action on August 1, 2023 against Defendant Bartz-Altadonna Community Health Center (“Bartz-Altadonna”). Plaintiff filed the operative First Amended Complaint (“FAC”) on December 27, 2023 against Defendants Bartz-Altadonna, Caster Modelo, LLC, Payam Bahari, Haim Bahari, and Pacific Premier Bank. The FAC alleges causes of action for (1) breach of written contract, (2) breach of written contract,

(3) breach of written contract, and (4) specific performance.

Bartz-Altadonna asserts that a “settlement agreement and release between the parties require that Plaintiff dismiss the pending litigation with prejudice.” (Notice of Mot. at p. 2:7-8)

Bartz-Altadonna now moves for an order “enforcing the terms of the settlement agreement and for a judgment of dismissal with prejudice.” Plaintiff 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].)

In support of the motion, Bartz-Altadonna submits the declaration of its counsel, Mr. Usher, who states that “I was retained to represent Defendant, Bartz-Altadonna Community Health Center, after a dispute had arisen between Sellers and Buyer regarding the Purchase and Sales Agreement (hereinafter PSA). After being retained, I contacted Mike Vivoli, counsel for Plaintiff, Lancaster Eagle, LLC. We communicated in an attempt to resolve the dispute, but such an effort was unsuccessful.” (Usher Decl., ¶ 3.) Mr. Usher further states that “[s]hortly after my communications with counsel for Lancaster Eagle, LLC ceased, Daniel Zohar, Counsel for Caster Modelo, LLC, who is the other 50% owner and other seller of the Subject Property, on or about June 27, 2023, reached out to me in an attempt to salvage the negotiations and see if the parties can reach an agreement. Mr. Zohar and I started communicating regarding trying to resolve the dispute, and after about two months of negotiations the parties finally reached an agreement.” (Usher Decl., ¶ 3.)

Mr. Usher states that “[d]uring the pendency of our negotiation, Plaintiff filed this current action…On August 24, 2023, the parties to the PSA, whom are Lancaster Eagle, LLC (Plaintiff herein), Caster Modelo, LLC…and Bartz-Altadonna Community Health Center (Defendant herein), signed an amendment, which also contained a conditional waiver of all claims known and unknown and an agreement to dismiss this pending lawsuit upon the timely closing of escrow.” (Usher Decl., ¶ 3.) “Exhibit 2” to Mr. Usher’s declaration is a document titled “Conditional Amendment to the Purchase and Sale Agreement dated 2/7/2023” (herein, the “Conditional Amendment”). (Usher Decl., ¶ 3, Ex. 2.)

The Conditional Amendment provides that “[t]his Conditional Amendment is made to that Purchase and Sale Agreement dated February 7, 2023, (‘Amendment’) by and between Bartz-Altadonna Community Health Center or its Chosen Assignee (‘Buyer’), and Lancaster Eagle LLC and Caster Modelo LLC (‘Seller’) (Buyer and Seller may be referred to individually as a ‘Party’ or collectively as ‘Parties’)…” (Usher Decl., ¶ 3, Ex. 2.) Bartz-Altadonna cites to Paragraph 5 of the Conditional Amendment, which provides as follows:

“5. Waiver of claims: The parties conditionally waive and release all existing

claims, including the current lawsuit pending in Los Angeles Superior Court, LASC Case No. 23STCV18073 (the ‘Lawsuit’), arising out of the sale of the Property, subject to the close occurring on or before September 29, 2023, and conditionally waive Civ. Code Section 1542. If the close occurs on or before September 29, 2023, and the sale is fully consummated, this waiver shall survive, and all claims, known and unknown, arising out of the sale, including the Lawsuit, shall be mutually released. Upon the timely closing of escrow, the Lawsuit shall be dismissed with prejudice. If the close of escrow does not occur on or before September 29, 2023, and the sale is not fully consummated, this waiver shall be null and void, and all rights, claims, and remedies that existed for the Parties prior to Signing this amendment shall remain as they existed before execution of this Agreement, through and including in connection with the prior purchase and sale agreement entered into by the Parties and the Lawsuit shall remain active and will be pursued by Seller.” (Usher Decl., ¶ 3, Ex. 2.)

In his supporting declaration, Bartz-Altadonna’s counsel states that “[t]he buyer was ready to close escrow on or before September 29, 2023, but according to Raul Zuniga, who was the escrow officer handling this escrow, escrow was not in a position to close because of needed additional information from sellers.” (Usher Decl., ¶ 5.) Bartz-Altadonna’s counsel indicates that “escrow was funded on Tuesday, October 10, 2023, and recordation of the deeds (grant deed and deed of trust) occurred on Wednesday October 11, 2023…” (Usher Decl., ¶ 11.)

Bartz-Altadonna argues that “although there is no dispute that escrow did not close on September 29, 2023, there is ample evidence that escrow did not close on before September 29, 2023, solely because of Plaintiff, and with absolutely no fault of Defendant Bartz…” (Mot. at p. 5:14-16.) Bartz-Altadonna contends that “Plaintiff’s failure to be ready to close escrow on or before September 29, 2023, cannot be a basis to extinguish Defendant’s rights to have this lawsuit dismissed with prejudice, which it bargained for.” (Mot. at p. 6:4-6.) But Bartz-Altadonna does not appear to cite any legal authority to support this proposition.

Bartz-Altadonna acknowledges that “there is no dispute that escrow did not close on September 29, 2023…” (Mot. at p. 5:14-15.) As discussed, paragraph 5 of the subject Conditional Amendment clearly specifies that “[i]f the close occurs on or before September 29, 2023, and the sale is fully consummated, this waiver shall survive, and all claims, known and unknown, arising out of the sale, including the Lawsuit, shall be mutually released. Upon the timely closing of escrow, the Lawsuit shall be dismissed with prejudice. If the close of escrow does not occur on or before September 29, 2023, and the sale is not fully consummated, this waiver shall be null and void, and all rights, claims, and remedies that existed for the Parties prior to Signing this amendment shall remain as they existed before execution of this Agreement, through and including in connection with the prior purchase and sale agreement entered into by the Parties and the Lawsuit shall remain active and will be pursued by Seller…” (Usher Decl., ¶ 3, Ex. 2, emphasis added.)

In light of the foregoing, the Court does not find that Bartz-Altadonna has demonstrated good cause for the Court to grant the instant motion to enforce settlement agreement. 

Conclusion

Based on the foregoing, the Court denies Bartz-Altadonna’s motion.

Plaintiff is ordered to provide notice of this ruling. 

DATED:  March 4, 2024                                ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court