Judge Teresa A. Beaudet, Case Number: BC708790, Date: 2025-02-14 Tentative Ruling

SARAH E. BIRCH, Plaintiff, vs. JAMES M. EDWARDS, JR., et al. Defendants.	Case No.:	BC708790
	Hearing Date:	February 14, 2025
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF/CROSS-DEFENDANT SARAH BIRCH’S MOTION TO ENFORCE SETTLEMENT TERMS
AND RELATED CROSS-ACTION

On June 5, 2018, Plaintiff Sarah E. Birch (“Birch”) filed this action against Defendants James M. Edwards, Jr. and Xceed Financial Credit Union. The Complaint alleges one cause of action for the partition and sale of real property.

In the Complaint, Birch alleges that she and James M. Edwards, Jr. are each the owners of a fifty percent interest in certain real property located at 837 Crescent Drive, Monrovia, California (the “Subject Property”). (Compl., ¶ 7.) In the Complaint, Plaintiff seeks, inter alia, a partition by sale of the Subject Property. (Compl., p. 3:18.)

On February 22, 2022, James M. Edwards filed a Cross-Complaint against Birch. On March 22, 2023, James M. Edwards filed the operative First Amended Cross-Complaint, alleging causes of action for (1) breach of written contract, (2) breach of written contract, (3) specific performance, and (4) specific performance.

Birch’s counsel indicates that the parties have agreed to a Settlement Agreement and General Release. (Marcucci Decl., ¶ 3, Ex. 1.)

Birch now moves for “an Order and Entry of Judgment enforcing the terms of a settlement agreement between Birch and Defendant/Cross-Complainant JAMES EDWARDS, JR.” James Edwards (“Edwards”) opposes.

“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 the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and 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).)

As set forth above, Birch’s counsel indicates that the parties have entered into a Settlement Agreement and General Release (herein, the “Settlement Agreement”). (Marcucci Decl., ¶ 3, Ex. 1.)

Paragraph A.2 of the Settlement Agreement provides that “Edwards will assume sole responsibility for any loans, notes, and/or financing related to Subject Property and will release Birch from any such responsibility, including but not limited to Xceed Financial Federal Credit Union loan numbers xxxx37804 and xxxx37812.” (Marcucci Decl., ¶ 3, Ex. 1, ¶ A.2.) In addition, Paragraph A.5 of the Settlement Agreement provides that “Edwards will be responsible for any and all fees and expenses associated with releasing Birch from all financial responsibilities [sic] associated with the Subject Property including but not limited to fees and costs soght [sic] by Xceed Financial Federal Credit Union claimed by Xceed Financial Federal Credit Union in relation to defending the claims asserted by Birch against Xceed Financial Federal Credit Union in the Action.” (Marcucci Decl., ¶ 3, Ex. 1, ¶ A.5.)

Birch’s counsel states that “[s]ince the Agreement was executed, I have requested the status of getting Birch off the loan at least four times, first on May 23, 2024; June 10, 2024; June 24, 2024; and on July 1, 2024.” (Marcucci Decl., ¶ 6.) Birch’s counsel asserts that “to this day, Edwards, through his counsel, has refused to comply with the terms of the Agreement as to removing Birch from the loan.” (Marcucci Decl., ¶ 7.) Birch asserts that “[t]his Motion is based upon the grounds that Edwards breached of the [sic] settlement terms by failing to remove Birch from a loan despite Birch’s numerous requests. An order, and corresponding judgment, enforcing the settlement agreement is therefore necessary and authorized pursuant to C.C.P. § 664.” (Notice of Motion at p. 2:5-8.)

In the opposition, Edwards first contends that “given Birch’s failure to comply with the provisions of Code of Civil Procedure, Section 664.6, the court did not retain jurisdiction to enforce the Settlement Agreement and her motion must therefore be denied in its entirety.” (Opp’n at pp. 5:27-6:1.)

Edwards cites to Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 915, where “Mesa RHF Partners, L.P. (Mesa), Hill RHF Housing Partners, L.P. (Hill), and Olive RHF Housing Partners (Olive) appeal[ed] from orders denying motions to enforce settlement agreements under Code of Civil Procedure section 664.6…The trial court denied those motions on the merits.” The Court of Appeal “affirm[ed] the trial court’s orders,” and did so “based on [the] conclusion that the trial court was without jurisdiction to hear the motions.” (Ibid.) The Mesa Court noted that “[a] request for the trial court to retain jurisdiction under section 664.6 must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” (Id. at p. 917 [internal quotations omitted].) In Mesa, the Court of Appeal noted that “[a]lthough the parties try to characterize Hill’s, Olive’s, and Mesa’s requests for dismissal as requests to the trial court that it retain jurisdiction under section 664.6 to enforce the parties’ settlement agreements, we disagree with that characterization. The requests for dismissal were not signed by the ‘parties’ (or even a single ‘party’) as that term in section 664.6 has been uniformly construed by California courts.” (Ibid.)

Edwards asserts that here, “Birch not only failed to include the 664.6 language in the Settlement Agreement, but she failed to file the same with the court and never referenced it in a Request for Dismissal.” (Opp’n at p. 5:22-24.)

However, as noted by Birch in the reply, on April 29, 2024, there was an Order to Show Cause Re: Dismissal in this action. The Court’s April 29, 2024 minute order provides, inter alia, that “[c]ounsel for the parties at the hearing informed the Court that they agree to the following: The Court, pursuant to an oral request made by Plaintiff, orders the Amended Cross-Complaint (1st) filed by James M. Edwards, Jr on 03/22/2023 dismissed without prejudice. The Court retains jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6.” (Emphasis added.) Edwards does not address the April 29, 2024 minute order in his opposition or assert that it is insufficient for the Court to retain jurisdiction under Code of Civil Procedure section 664.6.

Next, Edwards asserts that he “did not agree to…remove Birch from the loans.” (Opp’n at p. 6:3-4.) Indeed, as set forth above, Birch’s notice of motion states that the motion “is based upon the grounds that Edwards breached of the [sic] settlement terms by failing to remove Birch from a loan despite Birch’s numerous requests.” (Notice of Motion at p. 2:5-6.) However, Birch does not appear to point to any provisions of the Settlement Agreement specifically indicating that Edwards must “remove” Birch from “a loan.” Rather, Birch points to paragraph A.2 of the Settlement Agreement, which, as set forth above, provides that “Edwards will assume sole responsibility for any loans, notes, and/or financing related to Subject Property and will release Birch from any such responsibility, including but not limited to Xceed Financial Federal Credit Union loan numbers xxxx37804 and xxxx37812.” (Marcucci Decl., ¶ 3, Ex. 1, ¶ A.2.) This provision does not provide that Edwards shall “remove” Birch from any loan. Birch also points to paragraph A.5 of the Settlement Agreement, which, as discussed, provides that “Edwards will be responsible for any and all fees and expenses associated with releasing Birch from all financial responsiblities [sic] associated with the Subject Property including but not limited to fees and costs soght [sic] by Xceed Financial Federal Credit Union claimed by Xceed Financial Federal Credit Union in relation to defending the claims asserted by Birch against Xceed Financial Federal Credit Union in the Action.” (Marcucci Decl., ¶ 3, Ex. 1, ¶ A.5.) This provision also does not provide that Edwards must “remove” Birch from any loan.

As set forth above, “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, supra, 60 Cal.App.4th at p. 810 [emphasis in original].) Here, Birch appears to request that the Court create a settlement term, as opposed to deciding what terms the parties themselves previously agreed upon. Accordingly, the Court denies Birch’s motion to enforce settlement terms.

The Court also denies Birch’s request for costs and attorneys’ fees. Pursuant to Paragraph K.23 of the Settlement Agreement, cited by Birch, “[i]n the event any party hereto shall commence legal proceedings against any other party hereto to enforce the terms hereof, or to declare rights hereunder, as the result of a breach of any covenant or condition of this release, the prevailing party in any such proceeding shall be entitled to recover from the losing party its cost of suit, including reasonable attorneys’ fees, as may be fixed by the Court.” (Marcucci Decl., ¶ 3, Ex. 1, ¶ K.23 [emphasis added].)

Edwards asserts that “[s]ince Birch is not entitled to any of the relief requested, she must pay Edwards the attorney’s fees incurred in the preparation of his opposition.” (Opp’n at p. 7:27-28.) Edwards’ counsel states that “[i]n opposing this motion, I have expended approximately 11.5 hours. When billed at my hourly rate of $250.00, which is a discounted rate afforded to Edwards, the total fees incurred in opposing the within motion is $2,875.00.” (Gentile Decl., ¶ 12.) The Court finds that this amount is reasonable and awards Edwards the requested fees.

Based on the foregoing, Birch’s motion to enforce settlement terms is denied. Birch’s request for attorney’s fees and costs is denied.

Edwards’ request for attorney’s fees against Birch in the amount of $2,875.00 is granted.

Superior Court of California

County of Los Angeles

Department 50