Judge Thomas D. Long, Case Number: 19STCV43401, Date: 2023-05-19 Tentative Ruling

On March 29, 2022, Plaintiff filed a motion to enforce settlement and appoint an elisor.

Plaintiff sought an order appointing an elisor to execute (1) the Grant Deed pursuant to that certain Certificate of Compliance for Lot Line Adjustment, Parcel Map Exemption No. AA-2017-4029 and to Confirm Title, and (2) Grant Deed for Parcel 2 in Fee pursuant to that certain Certificate of Compliance for Lot Line Adjustment, Parcel Map Exemption No. AA-2017- 4029 and Described as a Whole, before a notary and return the originals to Plaintiff’s counsel.

Plaintiff also sought an order requiring Defendant to (1) “submit to the Home Loans Partial Release Department at Bank of America all documents and other materials required by Bank of America for Bank of America to approve the parties’ lot line adjustment and deliver to Mr. Corzo’s counsel for recording either (a) a partial release of its deed of trust in recordable for as to the 221 square foot area that is the subject of the Boundary Adjustment, or (b) a subordination in recordable form of its deed of trust to the Boundary Adjustment,” (2) “fully and promptly cooperate with Mr. Corzo’s counsel in providing or doing any things reasonably required or appropriate to effectuate the Boundary Adjustment and Certificate of Compliance,” and (3) “execute, acknowledge, deliver, file and/or record such further certificates, documents and instruments and to do all such further acts and things as may be reasonably necessary to carry out the intent and purposes of the Settlement Agreement.”

At the original May 17, 2022 hearing on the motion, the Court denied as moot Plaintiff’s request for an order appointing an elisor to execute the deeds because Defendant had signed and delivered the required original deeds.

The Court also denied Plaintiff’s request for an order requiring Defendant to execute documents and provide them to Bank of America, stating, “Although the preliminary reports and overall process were delayed until Defendant provided the original signed corrective grant deeds, Plaintiff does not specifically identify anything else that Defendant can do now to secure the approval.”

With respect to Plaintiff’s request for an order that Plaintiff “fully and promptly cooperate with Mr. Corzo’s counsel in providing or doing any things reasonably required or appropriate to effectuate the Boundary Adjustment and Certificate of Compliance,” and “execute, acknowledge, deliver, file and/or record such further certificates, documents and instruments and to do all such further acts and things as may be reasonably necessary to carry out the intent and purposes of the Settlement Agreement,” the Court noted that Defendant showed that she and counsel were communicating with Bank of America and providing documents. The Court continued the hearing and ordered the parties to work together to finalize the boundary adjustment before the next hearing.

Plaintiff did not appear at the July 28, 2022 hearing, and the Court continued the hearing.

On November 3, 2022, the parties stipulated to further continuing the hearing while they worked to resolve the boundary line adjustment.

At the February 1, 2023 hearing, the Court continued the hearing again to March 28, 2023 and ordered supplemental briefing from each party, due ten court days before the hearing.

On March 14, 2023, Plaintiff submitted supplemental briefing. Defendant did not submit supplemental briefing. On March 24, 2023, Defendant filed an ex parte application to continue the hearing again because she has not been able to reach a Bank of America employee who can provide the approval. (As of the Court posting this tentative ruling, the Court’s tentative ruling on the ex parte application is to deny the application.)

In his March 14, 2023 supplemental briefing, Plaintiff contends that “there is still one requirement yet to be fulfilled by Ms. Saneyoshi: securing acknowledgment and approval from her lender BOA.” (Motion at p. 4; Parker Decl. ¶ 4.) An agreement to procure the act or consent of a third party is not enforceable. (Civ. Code, § 3390, subd. (d).) The Court cannot enter an order or judgment requiring Defendant to obtain approval from non-party Bank of America.

The Court also cannot enter an order or judgment requiring Defendant to “fully and promptly cooperate with Mr. Corzo’s counsel in providing or doing any things reasonably required or appropriate to effectuate the Boundary Adjustment and Certificate of Compliance” or “to do all such further acts and things as may be reasonably necessary to carry out the intent and purposes of the Settlement Agreement.” (See Civ. Code, § 3390, subd. (e) [“An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.”].)

Before the March 28, 2023 hearing, the Court posted a tentative ruling setting forth the above procedural history and analysis, with a tentative denial of the motion. At the hearing, Plaintiff’s counsel cited Bleecher v. Conte (1981) 29 Cal.3d 345, 354-355 to support the proposition that a contract requiring “best efforts” is enforceable. But that was “not a case involving specific performance of a contract ‘to procure the . . . consent of’ [a third party] within the meaning of Civil Code section 3390, subdivision 4.” (Id. at p. 354.) Instead, the buyers of the land “agreed that city approval of plans would be a condition precedent to the close of escrow.” (Ibid.) Plaintiff’s counsel also cited California Pines Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384, 392-393. However, the contract in that case involved a fifty-year water storage agreement that required a party to “use ‘best efforts’ to maintain a full Reservoir, subject to natural circumstances beyond [the party’s] control. The Agreement does not define ‘best efforts.’” (Id. at p. 386.) It did not require a party to use their best efforts to procure a third party’s act or consent.

The Court continued the hearing and permitted supplemental briefing again. On May 10, 2023, Plaintiff filed his additional supplemental briefing. This briefing did not expand on counsel’s contentions that he could provide legal support for enforcement of the remainder of the settlement agreement. Instead, the briefing summarized portions of the March 28, 2023 hearing transcript and recalculated his attorney fees. The only citations to law are on pages 11 through 13, when discussing the lodestar for attorney fees. Nothing about this supplemental briefing overcomes the fact that Plaintiff is seeking to enforce an unenforceable term requiring Plaintiff to procure the act or consent of third-party Bank of America and to perform other uncertain and ascertainable acts in connection with getting Bank of America’s approval. (Code Civ. Proc., § 3390, subds. (d)-(e).)

The motion to enforce settlement with request for attorney fees is DENIED with prejudice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court