Judge: Theodore R. Howard, Case: 18-1012256, Date: 2022-07-20 Tentative Ruling

The motion by defendant Maria Zamora (“defendant”) to enforce the settlement agreement with plaintiff Armando Marmolejo (“plaintiff”) is GRANTED.

Defendant’s Request for Judicial Notice of all of the following documents is GRANTED.

1.       8/6/2020 Minute Order

2.       Plaintiff’s motion to enforce settlement filed on 11/9/2020

3.       12/10/2020 Minute Order

4.       1/4/2021 Elisor Order

The terms of the settlement agreement between the parties is set forth in the court’s 7/9/2020 Minute Order. (ROA #175) Per that Minute Order, after defendants failed to comply with certain terms of the settlement agreement, the property was to be sold under court supervision.

On 7/9/2020, the court found that although there was no formal written settlement agreement between the parties, there is a valid and binding settlement agreement of the entire action between plaintiff and defendants Hermelinda Zamora and Maria Zamora that was placed on the record orally before this court while this litigation was pending.

The terms of the settlement agreement include, among other terms, a 50/50 split between plaintiff and defendants of the proceeds of the sale of the subject property.

The parties also agreed that the sale would be under court supervision and that the prevailing party on a motion to enforce the settlement under CCP §664.6 would be entitled to attorneys’ fees and costs.  (ROA #175) The Minute Order reflects that the parties were questioned before the court and confirmed their agreement to the terms.

On 8/6/2020, the court granted plaintiff’s motion to enforce the settlement agreement and once again noted the finding of a valid and binding settlement agreement between the parties. (ROA #189)

Finally, on 12/10/20202, upon plaintiff’s “motion to further enforce the settlement agreement”, the court once again noted the prior determination of a valid and binding settlement agreement. (ROA #217). Notably, however, while the court granted plaintiff’s motion to further enforce the settlement agreement, it denied plaintiff’s request for reimbursement from the defendants’ sale proceeds for any damage to the property caused by defendants. (Id.).  The Minute Order reflects that the court expected the issue could be appropriately addressed via suitable escrow instructions which may in turn potentially be subject to signature by a court appointed elisor. (Id.)

On 1/4/2021, the order for appointment of an elisor for defendants was entered. (ROA #228) The elisor thereafter signed a grant deed transferring title of the property to plaintiff, and the property was sold on 4/12/2021.

The sales agreement called for the property to be sold “As Is” and for the buyer to be responsible for eviction, if necessary. (Mata Decl. Ex. 2).

Nevertheless, prior to the sale, the plaintiff executed amended escrow instructions regarding a $25,000 hold-back for damage to the property and $18,000 for eviction costs. Despite the parties’ agreement that the sale would be under court supervision, plaintiff did not provide notice to the elisor, the defendant or the court of the escrow or amended escrow instructions. The amended escrow instructions require a writing to the seller of an accounting of any funds held back for damages to the property.  No such writing has been provided to the court with plaintiff’s opposition.

There also is no evidence (such as photos or written seller’s disclosure) of the condition of the property prior to the sale and a comparison of the property after the tenant moved out to establish when any alleged damages (in the photos attached to the opposition) occurred and the cause of thereof. There is no declaration from the plaintiff under oath either.

There also is no evidence of eviction costs incurred by the buyer.

Claiming that none of the proceeds of the sale of the property have been disbursed to her, defendant now seeks an order enforcing the settlement agreement requiring plaintiff to disburse 50% of the sale proceeds to her.

Plaintiff counters requesting an order that all proceeds should be distributed to him.

In ruling on a motion to enter judgment, the trial court must determine whether the parties entered into a valid and binding settlement. (Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454). It does not have authority to create material terms of the settlement. (Id. at p. 1460 citing Weddington Productions, Inc. v. Flick (“Weddington”) (1998) 60 Cal.App.4th 793, 809-810).

The court has already twice determined that the parties entered into a valid and binding settlement agreement which calls for the parties to sell the property and split the proceeds 50% to plaintiff and 50% to defendants, that the court retain jurisdiction under CCP §664.6 and the prevailing party on a motion to enforce thereunder is entitled to attorney’s fees and costs. (ROA #189 and #217) The court may not change the material terms of the agreement, and there is no evidence upon which to do so in any event. 

Accordingly, Maria’s motion is GRANTED.

As the property was sold over a year ago, plaintiff is ordered to disburse 50% of the proceeds of the sale of the property to defendants within 15 days from the date of the hearing.

Sanctions

Per the settlement agreement, as the prevailing party on this motion, plaintiff Armando Marmolejo and his counsel of record, Mark Martinez, are ordered to pay Maria Zamora $3,819.95 in reasonable attorneys fees and costs incurred in connection with the motion.

Moving party is ordered to give Notice.