Judge: Theresa M. Traber, Case: 18STCV07560, Date: 2023-05-16 Tentative Ruling

Case Number: 18STCV07560    Hearing Date: May 16, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 16, 2023             TRIAL DATE: VACATED

CASE:                         Victor Hugo Martinez v. Lom Property Corporation, et al.

CASE NO.:                 18STCV07560           

MOTION TO ENFORCE SETTLEMENT

MOVING PARTY:               Plaintiff Victor Hugo Martinez

RESPONDING PARTY(S): Defendants Lom Property Corporation and Fluirse, LLC

CASE HISTORY:

·         12/07/18: Complaint filed.

·         06/12/19: Amendment to Complaint correcting fictitious name.

·         02/02/23: Notice of Settlement of Entire Case filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This was an action for wage and hour violations. Plaintiff alleged that Defendants failed to pay Plaintiff all wages owed, failed to provide meal and rest periods and to pay overtime, failed to pay minimum wage, failed to reimburse work expenses, and failed to issue accurate itemized wage statements.

            Plaintiff moves for enforcement of a settlement agreement between the parties.

TENTATIVE RULING:

            Plaintiff’s Motion to Enforce the Settlement is DENIED.

            Plaintiff’s request for attorney’s fees is DENIED.

DISCUSSION:

            Plaintiff moves for enforcement of a settlement agreement between the parties.

//

Objection to Opposition

            Plaintiff objects to Defendants’ opposition to this motion on the basis that the opposition’s proof of service, which states that it was served on Plaintiff by mail and email on May 3, is false. Opposition papers to a motion must be served and filed at least nine court days before the date the matter is scheduled to be heard. (Code Civ. Proc. § 1005(b).) Further, all opposition papers must be served by personal delivery, facsimile transmission, express mail, or some other means consistent with the Code of Civil Procedure that is “reasonably calculated to ensure delivery to the other party . . . not later than the close of the next business day after the time the opposing papers. . . are filed.” (Code Civ. Proc. § 1005(c).) Plaintiff has provided the envelope with postage stamp and USPS tracking history, which show that the opposition was not mailed until the end of the day on May 4, 2023, and was not delivered until Saturday, May 6, 2023. (Declaration of Joshua L. Kopple ISO Reply ¶ 2, Exh. A.) Further, Plaintiff’s counsel states under penalty of perjury that his office never received any email of the opposition, and that he only received the opposition on Monday, May 8, in the office mailbox, the day before the reply was due. (Id. ¶¶ 3-4.) Plaintiff argues that he has been prejudiced by being denied a fair opportunity to reply to the voluminous opposition papers.

            The Court concurs. Defendants were obligated to timely serve their opposition papers pursuant to the Code of Civil Procedure, and Plaintiff’s evidence shows they did not do so. The Court therefore refuses to consider Defendants’ opposition papers, evidence, or objections in ruling on this motion. (Rancho Mirage Country Club Homeowners Assn v. Hazelbaker (2016) 2 Cal.App.5th 252, 261.)  For the same reasons, the Court denies Defendants’ request for attorneys’ fees, which request was made in the opposition papers.  

Legal Standard

            Code of Civil Procedure section 664.6 provides, in relevant part:

If the 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(a).) The Court is empowered under this section to resolve reasonable disputes over the terms of a settlement. (Machado v. Myers (2019) 39 Cal.App.5th 779, 795.) The Court does not insert provisions into the parties’ agreement but applies the rules of contractual interpretation to construction of the settlement. (Id. at 792.) When extrinsic evidence is necessary, the Court may decide the motion on declarations alone. (Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97.)

//

Terms of the Settlement

            The following facts are undisputed: the parties reached a settlement in a mandatory settlement conference on January 10, 2023. (See Declaration of Dean Thompson ISO Mot. Exh. A p. 1.) After some six weeks of negotiation, the parties executed a finalized settlement agreement on February 24, 2023. (Thompson Decl. Exh. A. pp. 85-110.)

            The relevant terms of the settlement provide that, in exchange for a full resolution of this dispute, Plaintiff agreed to surrender the apartment in which he resided as an employee of Defendants and would vacate the unit “free of any persons, personal property, or damage beyond normal wear and tear” on or before March 1, 2023. (Thompson Decl. Exh. B p. 1.) In exchange, Defendants would pay Plaintiff the sum of $35,000 on February 24, 2023, with an additional $5,000 monthly payment on March 5, 2023, conditioned on Plaintiff’s timely surrender of the unit, and a further six $5,000 monthly payments occurring on the first of each month, commencing April 1, 2023. (Id.) If Plaintiff failed to timely vacate the premises, Plaintiff was required to dismiss the entire action with prejudice within 10 days of receipt of the February 24 payment. (Id. p. 4.) Alternatively, if Plaintiff timely vacated the premises, Plaintiff was required to dismiss the action within 10 days of the due date of the September 1, 2023 payment, or within 10 days of Defendant’s payment of any government lien, withholding order, or garnishment, whichever is earlier. (Id.)

            The agreement also contains an integration clause, which states:

This Agreement contains the entire agreement relating to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, oral or written, relating to such subject matter. There are no warranties, representations, agreements, arrangements, or understandings, oral or written, relating to the subject matter hereof that are not fully expressed or provided for herein, and the Parties shall not be bound by or liable for any alleged warranty, representation, agreement, arrangement, or understanding not so set forth.

(Thompson Decl. Exh. B. p. 9.)

Performance Under Settlement

            Plaintiff contends that Defendants have refused to comply with their obligations under the settlement by refusing to pay plaintiff the remaining sum of $35,000 pursuant to the terms of the settlement. The parties do not dispute that Defendants declared their intention not to make these payments because Defendants contend that Plaintiff breached the Agreement first in four respects: (1) Plaintiff failed to timely vacate the unit on or before March 1, 2023; (2) Plaintiff failed to surrender the unit free of personal property; (3) Plaintiff failed to surrender the unit free of damage beyond normal wear and tear; and (4) Plaintiff failed to dismiss the action within 10 days of receipt of the February 24 payment after failing to timely move out. (Thompson Decl. Exh. A. pp. 121-22.)

            Plaintiff offers numerous arguments as to why the settlement should be enforced in his favor. First, Plaintiff argues that he substantially complied with the settlement conditions that gave rise to Defendants’ obligations. “A condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises” (Stephens & Stephens XII, LLC v. Fireman’s Fund Insurance Co. (2014) 231 Cal. App. 4th, 1131, 1147.)  Plaintiff claims

he moved out on March 1, 2023, pursuant to the terms of the settlement, leaving only a refrigerator that he could not fit through the door. But Plaintiff offers no evidence of this contention other than statements by Plaintiff’s counsel in email correspondence with Defendants’ counsel. (See Thompson Decl. Exh. A.) Statements in this correspondence concerning Plaintiff’s compliance with the settlement terms are hearsay, and inadmissible to prove compliance with the agreement. (Evid. Code § 1200.) Further, Plaintiff’s contentions regarding compliance with the “original settlement terms” set forth during the mandatory settlement conference are immaterial in the face of an agreement that is undisputedly the final expression of the agreement. (See Code Civ. Proc. § 1856.)

            The Court therefore concludes that Plaintiff has not demonstrated performance under the settlement agreement such that he is entitled to enforce it against Defendants.

            As Plaintiff has not demonstrated performance under the remainder of the agreement, the Court declines to address Plaintiff’s arguments concerning the “wear and tear” provisions, their materiality, or any estoppel argument.

Excuse from Performance

            Plaintiff argues that, even if he has not established performance, that performance should be excused because Defendant delayed execution of the agreement until February 24, 2023, with a planned move-out date of March 1, 2023.  Plaintiff’s sole legal authority to support this contention is Osumi v. Sutton, a 2007 appellate ruling concerning a settlement agreement to buy back a house with alleged construction defects. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357-58.) In that case, the parties had reached an initial settlement orally before the trial court but did not execute a finalized agreement before the original deadline for the transaction had passed because the appellant proposed a last-minute counter-offer to which the other parties did not consent. (Id.) Based on those facts, the Court of Appeal held that the trial court did not err in extending the closing date for the transaction and did not create a material term of the settlement in doing so. (Id. at 1360-61.) Instead, the Osumi court found that it was necessary to do so to grant the relief sought by both parties. (Id.) Here, however, it is undisputed that the parties did execute a finalized agreement on February 24, five days before the move-out date of March 1, and there was no breakdown in the agreement between the parties before that date. Osumi is therefore not applicable to this case. As Plaintiff cites no other authority for this position, the Court concludes that Plaintiff may not be excused from performance of the settlement terms.

Unclean Hands

            Plaintiff asserts, without reference to any authority or evidence, that Defendants should not be permitted to avoid payment on the basis of the unclean hands doctrine because Defendants “knew they had no intention of performing on the settlement agreement” during the seven-day period in which Plaintiff could revoke the contract, but encouraged Plaintiff to vacate the premises anyway. (Motion p. 8:15-16.) Conclusory statements without evidence or authority are not sufficient to entitle Plaintiff to any relief whatsoever.

Attorney’s Fees

            Plaintiff also seeks attorney’s fees in connection with this motion. Section 17 of the settlement agreement entitles a party to recover “all fees and expenses, including reasonable attorney’s fees, costs, and expert witness fees” incurred in connection with any action to enforce the terms of the settlement against the other party. (Thompson Decl. Exh. B. § 17.) However, as Plaintiff is not the prevailing party on this motion, Plaintiff is not entitled to recover fees.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Enforce the Settlement is DENIED.

            Plaintiff’s request for attorney’s fees is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  May 16, 2023                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.