Tentative Rulings

The Tentative Rulings for Tuesday, October 3, 2023, are:

Re:             Hernandez, Amanda vs. Parenting Network, Inc.

Case No.:  VCU287027

Date:          October 3, 2023

Time:          8:30 A.M. 

Dept.          7-The Honorable Bret D. Hillman

Motion: Final Compliance Hearing

Tentative Ruling:  To continue this hearing to December 12, 2023 at 8:30 AM in Dept. 7.

The declaration from the Operations Manager at ILYM, the Claims Administrator indicates the amount remaining due from Defendant is $114,118.84 to be paid by October 14, 2023, and the deadline to cash settlement award checks is November 15, 2023. To review final compliance with these orders, the court continues this hearing to December 12, 2023, at 8:30 AM in Dept. 7. ILYM is directed to file an updated declaration regarding the issues noted above. Counsel may appear in any manner as to the status of final compliance with the approved settlement.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Franks, April vs. Meshesha, Abiy M.D.

Case No.:   VCU290542

Date:           October 3, 2023

Time:           8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:     Defendant Nagle and CEP’s Motion for Summary Judgment

Tentative Ruling: To grant the continuance. The Motion is reset for December 12, 2023 at 8:30 AM in Department 12.

Facts

Plaintiffs April Franks, Gary Franks, Jr., and Jessica Alvarez (“Plaintiffs”) allege Defendants Julia Nagle, P.A. and CEP America-California (“Defendants”) provided negligent medical care to Plaintiffs' decedent, Gary Franks, Sr., after he fell and hit his head at home, by failing to timely diagnose and treat a subdural hematoma when he presented to Kaweah Health Medical Center on January 21, 2021, resulting in his death. (UMF Nos. 1, 15, 31.)

Plaintiffs' decedent, Gary Franks, Sr., died on January 24, 2021. (UMF Nos. 8, 22, 39.)

Plaintiffs filed this complaint on February 22, 2022 for as single cause of action for wrongful death based on medical malpractice against several health care providers. (UMF Nos. 10, 26, 43.) Plaintiffs filed a Doe amendment naming Defendants Nagle and CEP October 26, 2023. (UMF Nos. 11, 27, 44.)

Plaintiffs seek a continuance for discovery of facts that would support their  equitable tolling argument in order to defeat summary judgment.

Continuance and Equitable Tolling

Code of Civil Procedure section 437c(h) states, in pertinent part:

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just….” 

A continuance under Civil Procedure Code section 437c(h) is “virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 (internal quotation marks omitted); see also Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 (“ When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request.”).)

The court in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that “A declaration in support of a request for a continuance under section 437c, subdivision (h) must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Cooksey at 254, citations, internal quotations omitted.) It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory.  (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.)

To start, the declaration of counsel as to 437c(h) is entirely lacking as to these three elements. However, the Court takes the “virtually mandated” language of Bahl seriously and will permit the continuance and limited discovery on the issue of whether Nagle and/or CEP received correspondence or other notice of the claim via the presentation of the tort claim to Kaweah.

As to equitable tolling, the Court notes:

“The equitable tolling doctrine evolved in the 1970’s to toll statutes of limitations when defendants would not be prejudiced and plaintiffs, who had several legal remedies, pursued one such remedy reasonably and in good faith…It is a judge-made doctrine which operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Tarkington v. California Unemployment Ins. App. Bd. (2009) 172 CA4th 1494, 1503.) Equitable tolling is said to serve “the need for harmony and the avoidance of chaos in the administration of justice … [It] eases the pressure on parties concurrently to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue … By alleviating the fear of claim forfeiture, it affords grievants the opportunity to pursue informal remedies … without compromising defendants’ significant interest in being promptly apprised of claims against them in order that they may gather and preserve evidence because that notice interest is satisfied by the filing of the first proceeding that gives rise to tolling … [Also], tolling benefits the court system by reducing the costs associated with a duplicative filing requirement, in many instances rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary.” (McDonald v. Antelope Valley Comm. College Dist. (2008) 45 Cal. 4th 88, 100.)

“The doctrine applies ‘occasionally and in special situations’ to ‘soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.’” (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 719.)

The court in Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924 noted there are “three-core elements” to the doctrine of equitable tolling:

“(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”

Without adjudication of the merits of either the motion for summary judgment or Plaintiffs’ theory of equitable tolling as to the statute of limitations under Code of Civil Procedure section 340.5, the Court grants the request for a continuance.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              In the Matter of Podergois, James Laurence

Case No.:   VPR049544

Date:            October 3, 2023

Time:            8:30 A.M. 

Dept.            7-The Honorable Bret D. Hillman

Motion:       Motion for Costs, to Transfer Funds and be Relieved as Counsel

Tentative Ruling: To deny the motion without prejudice.

Facts

The initial petition filed June 25, 2019 listing a net value of real property at $103,000 and two children in addition to the surviving spouse:

• Sompong Ratsakhy - Spouse
• James L. Podergois, Jr. - Son
• David L. Podergois - Son 

Petitioner initially petitioned this court as the deceased dying intestate.

However, in or around September 2001, a pour over will and trust were discovered. (Petition for Instructions ¶3.) Four other adult children were named in the pour over will and/or trust:

• Becky Cortez-Podergois aka Becky Davis
• Frank Cortez-Podergois
• Scott Cortez-Podergois
• Richard Cortez-Podergois. (Petition for Instructions ¶6.)

The trust provides for 20% distribution to James L. Podergois, Jr., David L. Podergois, Becky Cortez-Podergois aka Becky Davis  and Frank Cortez-Podergois  and 10% to the remaining two children. (Petition for Instruction ¶7.)

The only remaining asset of the estate is cash in the amount of $31,095.18 from the foreclosure sale of the real property located at 502 West Grand Avenue, Porterville, California. (Petition for Instructions ¶9.)

Counsel indicates that Becky Davis, David Podergois, Frank Podergois, James Podergois Jr. (Jim), Richard Podergois, Scott Podergois and Sompong Ratskny signed quit claim deeds and assignments of interest to Nationwide Abstract, LLC as to their interests in the estate. (Petition for Instructions ¶13.)

Counsel seeks $4,000 in costs and fees from this Petition for Instructions. Petitioner’s attorney indicates that the probate estate had not been concluded, that no petition for distribution had been filed, and that Williams, Brodersen, Pritchett & Burke, LLP had not been paid.

Counsel for Petitioner indicates that as of at least December 30, 2020, counsel has lost contact with Petitioner. (Petition for Instructions ¶¶ 11, 12, 13.)

Further, the Petition for Instructions states:

“In the absence of contact with the Administrator, Sompong Ratsakhy, the named trustee and named executor of the will, James Podergois Jr., Nationwide Abstract LLC, and Williams, Brodersen, Pritchett, Burke & Ruiz, LLP, have reached a Mutual Release and Settlement Agreement and Agreement for Distribution as attached as Exhibit D. James Podergois Jr. has also signed an Affidavit for Collection of Personal Property under California Probate Code section 13100, attached as Exhibit E. It is believed that no beneficiaries object to these agreements and all potential beneficiaries have received compensation and signed Quit Claim Deeds and Assignments of Interest.” (Petition for Instructions ¶16.)

Authority and Analysis

In the Court’s view, this Petition seeks three separate items of relief: withdrawal of counsel, payment to counsel and closure of the estate via distribution to the LLC by way of a settlement agreement.

Withdrawal of counsel appears appropriate here where contact with Petitioner has been lost and efforts by counsel have been made to locate and contact Petitioner.

Additionally, the Court finds that the payment of the minimal costs of $4,000 to counsel is appropriate considering the facts of this case.

The third request is effectively a petition for final distribution. The Court finds that the notice has been provided in accordance with Probate Code sections 1220 and 11601. Further that the notices were served by mail to the last known addresses.

The Petition contains a sufficient description of the property to be distributed, namely a sum certain of $31,095.18. The Petition states all persons who can take property and the amount distributable, namely counsel and the LLC.

The Court notes that all potential recipients of the property to be distributed have signed over via quitclaim deeds and assignments their interests. However, the settlement agreement entered into between James Podergois Jr. as trustee of the James Lawrence Podergois Family Trust dated August 25, 2001, current counsel and the LLC indicates a distribution differing from the proposed order. (Ex. D.)

The settlement agreement indicates $4,000 to counsel, $3,000 to James Podergois Jr and the remainder to the LLC.

Therefore, the Court’s tentative ruling is to deny the relief requested. The Court will permit evidence and argument at the hearing addressing these issues. If all potential beneficiaries are able to agree on the same distribution, the court will consider granting the petition.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              Escamilla, Christian B. vs. Aequion, Inc.

Case No.:    VCU291638

Date:            October 3, 2023

Time:           8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:     Motion to Enforce Settlement

Tentative Ruling: To grant the motion and enter judgment pursuant to the terms of the settlement agreement; to award Plaintiff $960 in fees and costs pursuant to the agreement.

Facts

Plaintiff Escamilla sued Aequion, Inc. and individual defendants for various labor code violations, unfair business practices and intentional infliction of emotional distress involving Plaintiff’s employment. Defendants Aequion Inc., Seamans Capital Management, Richard F. Seamans, Eleanor Mulvaney Seamans, and Aequion, LLC were alleged to be Plaintiff’s “employers.” (Complaint ¶¶ 4- 8.) Plaintiff was employed by initially by EMOH Company LLC, which then became Aequion LLC in 2018 and later was incorporated into Aequion, Inc. in August 2019.

Plaintiff generally alleges he was not paid his full wages, was wrongfully terminated, did not receive reimbursement for business expenses, was not provided sufficient meal and rest breaks and that such conduct constituted intentional infliction of emotional distress. Plaintiff alleges he was uncompensated for periods in October 2020, January 2021, April through June 2021.

On June 23, 2023, the parties came to an agreement which they memorialized in formal settlement agreement, with the relevant terms set forth below.

On June 27, 2023, Plaintiff filed a notice of conditional settlement.

On August 7, 2023, the parties entered into a stipulation that the settlement agreement was confidential and that the parties desired the Court to retain jurisdiction pursuant to Code of Civil Procedure section 664.6.

Per Plaintiff’s request, dismissal in this matter was entered on August 14, 2023, with prejudice.

On August 15, 2023, this Court signed the proposed order retaining jurisdiction under section 664.6.

Plaintiff now moves the Court to exercise the retain jurisdiction under section 664.6 to enforce the settlement agreement because Defendant’s check in resolution of this matter did not clear Plaintiff’s counsel’s bank account.

In exchange for the release, Defendants were to provide settlement funds totaling $162,500 payable to Plaintiff’s counsel’s law firm within 30 days of Plaintiff’s execution of the settlement agreement.

The agreement, as to the release term, stated the following:

“Each Party warrants that no promise, inducement, or agreement not expressed herein has been made to it in connection with this Release, and that this Release constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous written or oral communications, understandings and agreements with respect to the subject matter hereof. It is expressly understood and agreed that this Release may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by authorized representatives of each of the Parties. Each Party hereby agrees that it will make no claim at any time or place that this Release has been orally altered or modified or otherwise changed by oral communication of any kind or character.” (Martirosyan Decl. ¶ 2 – Ex. A.)

Plaintiff agreed  that the check would held for ten (10) days to ensure compliance by Plaintiff with the following terms of the agreement:

“2. CONSIDERATION FROM ESCAMILLA: In consideration for the execution by Defendants of this Agreement and for the General Release in Paragraph 3, below, Escamilla shall:

a. Within 30 business days of Escamilla signing this agreement, a GoDaddy account will be provided to Escamilla where Escamilla can transfer Aequion’s GoDaddy domain; Escamilla will transfer the domain within one business day of receiving settlement payment;

b. Within 30 business days of Escamilla signing this agreement, a LinkedIn account will be provided to Escamilla that Escamilla can transfer the Aequion Linked In company page; Escamilla will transfer the company page within one business day of receiving the settlement payment;

c. Escamilla affirms that he does not believe he ever had access to the Aequion AT&T Business account passwords and if Defendant needs Escamilla’s authorization, for whatever reason, to access this account, Escamilla will provide said authorization;

d. Escamilla represents he cannot access Aequion, Inc.’s QR Studio, Rocket Lawyer, Elementor Pro, or ADP accounts. Escamilla believes Aequion, Inc.’s QR Studio, Rocket Lawyer, Elementor Pro can be accessed using his Aequion, Inc. email address. Escamilla represents that he does not have access to the Aequion, Inc. email. Escamilla represents he has never had access to Aequion, Inc.’s ADP account. Escamilla believes the account may be accessed using ngarrett@aequion.com or clara@aequion.com or accounting@aequion.com. An email address will be provided to Escamilla within 30 business days of him signing this agreement for the Cloudflare and WP Engine. Within one business day of receiving the consideration from Paragraph 1, Escamilla agrees to transfer Cloudflare and WP Engine accounts to the email address provided. Defendants agree to update the payment information to Defendants’ account within ten business days of receiving these accounts.

e. Escamilla represents he does not have any access to Aequion’s Microsoft 365, Outlook, or Sharepoint. Escamilla believes that anyone who took over his Aequion email address should be able to access these accounts.

f. Provide to Aequion all passwords to Aequion accounts that are in his knowledge or control, including without limitation his Aequion email account, within one business day of receiving the consideration listed in Paragraph 1g. g. Simultaneous with delivery of payment to his counsel, Escamilla agrees to provide to Aequion, Inc., through counsel, the following information, or if not in his possession, the best location for the following information, including relevant documents:

i. Bill of materials for the production of the 2 inch, 3 inch, 6 inch and triple 6” on 8” inch EMOH units from production records.

ii. The independent test results from Fresno State and others, including methane remediation from a cow waste pond and the feed savings and other benefits from the chicken tests.

iii. Quantitative and qualitative results from the field tests for S&S., East Side, Monterey Mushrooms, Mancebo, Driscoll berry producers and others including any photos and videos.

iv. Names of the farm owners, addresses and type and number of units that were installations and whether they were sold, returned, or remain in the field.

v. All of the signed contracts or conditional performance contracts signed by those customers took delivery of EMOH units and the status of their payments at the end of May 2021.

vi. Sales pipeline information.  

vii. Marketing promotional materials and presentations for prospects by industry.

viii. Personnel files.

ix. Company financials, including monthly income statements, and annual balance sheets from 2019 to June 2021.” (Martirosyan Decl. ¶ 2 – Ex. A.)

On August 1, 2023, Defendants sent the check for $162,500.00 to Plaintiff’s counsel’s office.

Plaintiff then details the efforts made in compliance with his duties under the settlement agreement regarding providing various passwords or log in information, as well as the categories under (f) above. Counsel for the parties exchanged a number of emails regarding Plaintiff’s knowledge or efforts as to logins and passwords for various Aequion related accounts as well as other, physical documents or items. (Motion - Requests and Responses – Pages 12 – 16.)

Defendants did not accept Plaintiff’s representations and stopped payment on the check. (Martirosyan Decl. ¶ 6.) Defendants have not provided confirmation that they transferred the billing information from the accounts Plaintiff transferred to them.

Plaintiff now seeks entry of judgment pursuant to the terms of the settlement agreement as to the settlement sum, indicating that he has fulfilled his duties under the settlement agreement.

In opposition, Defendants argue that Plaintiff has not complied with the settlement agreement because he has not been able to produce access to or the location of all of the items noted above in the settlement agreement. Defendants seek an evidentiary hearing as to Plaintiff’s compliance with these terms and note that if the Court is to grant this motion, then judgment is to be entered in this matter applicable to both parties.

Because the Court’s power under section 664.6 is limited to entry of judgment pursuant to the terms of the settlement agreement, the Court finds the various discussions of breach, and associated declarations and objections, immaterial to the analysis. The Court has found the parties entered into a valid, binding settlement agreement based on the agreement provided and the terms contained in the agreement and is prepared, therefore, to provide the parties with a judgment reflecting the settlement agreement.

Authority and Analysis

Section 664.6 (a) states: 

“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.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360) The mandatory requirements for application of Code of Civil Procedure section 664.6: (1) the request for the trial court to retain jurisdiction has been made during the pendency of the case; (2) by the parties themselves, and (3) in a writing signed by the parties expressly, clearly, and unambiguously requesting the court retain jurisdiction under this statute. (Mesa RHF Partners, LP. v. City of Lost Angeles (2019) 33 Cal.App.5th 913, 917.)

No party challenges the retained jurisdiction of the Court pursuant to the stipulation and order filed in this matter. Further, no party has challenged that the parties entered into a valid, binding settlement agreement. Rather, the parties disagree as to whether Plaintiff has complied with the terms of the agreement. It appears undisputed that Defendants have not paid the funds due under the agreement.

Section 664.6 permits the Court to enter a judgment in strict conformance with the terms of a settlement agreement.  (Code Civ. Proc. § 664.6(a) [“the court, upon motion, may enter judgment pursuant to the terms of the settlement.”]  Further, “if the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.”  (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.)

The Court in Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176 noted that “[t]he power of the trial court under Code of Civil Procedure section 664.6, however, is extremely limited. Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” When ruling on a section 664.6 motion, the trial court acts as a trier of fact to determine whether a settlement has occurred, which is also an implicit authorization for the trial court to interpret the terms and conditions to settlement. (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.)

The Court may not “create the material terms of a settlement,” and must instead decide on what terms the parties agreed upon. (Id.) “In acting upon a section 664.6 motion, the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone.” (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) “[T]he trial court is under a duty to render a judgment that is in exact conformity with an agreement or stipulation of the parties. ‘If interpretation of a stipulation is in order the rules applied are those applied to the interpretation of contracts. [Citations.] It is not the province of the court to add to the provisions thereof [citations]; to insert a term not found therein [citations]; or to make a new stipulation for the parties.’” (Jones v. World Life Research Inst. (1976) 60 Cal.App.3d 836, 840.)

What appears to be in dispute here is, therefore, whether Plaintiff’s actions constitute a breach of the settlement agreement such that Defendant was relieved of performing its obligations. As noted above, it is not in dispute that the settlement sum due under the agreement was not paid to Plaintiff by Defendants. However, the Court will examine the terms in dispute in the context of whether a valid, binding settlement agreement was entered into and not for breach thereof.

As to 2.a – 2.e above, the agreement appears straightforward as to what exactly Plaintiff has access to, what he can provide access to and what can be transferred out of his name with respect to account access and billing.  “The goal of contractual interpretation is to determine and give effect to the mutual intention of the parties. [Citations.]” (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 763.) There is little to interpret as to these terms.

With respect to section 2.f., the agreement requires Plaintiff to provide all passwords “in his knowledge or control” and provide the “best location” for a number of areas of information or documents. To the Court, this term is reasonably interpreted to require Plaintiff to use his “best efforts” to recall or locate any passwords as well as locate or provide any physical documents or locations of physical documents or items that have not been transferred to Defendant. The court in California Pines Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384, 395 noted that:

“…we agree with the courts from other jurisdictions that when a contract does not define the phrase ‘best efforts,’ the promisor must use the diligence of a reasonable person under comparable circumstances. Diligence is certainly required, but the obligation is framed within the bounds of reasonableness.”

The settlement agreement expressly does not call for Plaintiff to provide the password to every account or the location of every document or item. As noted by Plaintiff, (though this lawsuit was filed in May 2022) in September 2021, sent Defendants’ counsel a number of items in his possession as requested by Defendants. (Martirosyan Decl. ¶ 7 – Ex. E.) This included a laptop, AC adaptor and power cords, a smartphone, a USB memory drive, company files including banking records and all the documents from the company that he had at his home, keys to the office, blank checks, envelopes, a former employee’s journal, and mail. (Martirosyan Decl. ¶ 9.) Plaintiff, thereafter and pursuant to this agreement, provided passwords to the best of his memory, noting that he has not performed work for Defendants since June 2021. (Declaration of Plaintiff ¶2.)

Regardless, however, these disputes as to breach or compliance with the settlement agreement “…are not relevant to the entry of judgment pursuant to section 664.6.” (Machado v. Myers (2019) 39 Cal.App.5th 779, 795 citing Hines, supra, 167 Cal.App.4th at 1185 [ “a party moving for the entry of judgment pursuant to a settlement under Code of Civil Procedure section 664.6 need not establish a breach of contract to support relief under the statute”].)

As the Machado court noted, disputes regarding compliance with the settlement agreement, converted into a judgment, “may be relevant to the enforcement of the judgment, once entered, but the parties did not properly seek this type of relief from the court here. Instead, the trial court was asked to enter judgment ‘pursuant to the terms of the settlement’ under section 664.6.” (Machado, supra, 39 Cal.App.5th at 795-796.) The court in Machado further noted that:

“Trial courts have the inherent authority to enforce their rulings. (See, e.g., Security Trust & Savings Bank v. Southern Pac. R. Co. (1935) 6 Cal.App.2d 585, 588 [“It is a well-established principle of law that a court possesses inherent power to enforce its judgments.”]; see §§ 128, subd. (a)(4) [court has inherent power to compel obedience to the court's judgments, orders, and process in any pending action], 717.010, 1209, subd. (a)(5) [nonmonetary judgments are enforceable by invoking the trial court's contempt powers].) As we discuss post, it may be appropriate for the court to consider these enforcement issues on remand but it was premature for the court to do so based on the procedural posture of the case and the scope of the relief requested by the Machados pursuant to section 664.6.” (Id. at 796, fn. 13.)

Further, there is no need to establish breach to obtain the relief sought in through this procedure. “The statutory language makes it clear, however, that a party moving for the entry of judgment pursuant to a settlement under Code of Civil Procedure section 664.6 need not establish a breach of contract to support relief under the statute. Accordingly, the court was authorized to enter a judgment pursuant to the settlement regardless of whether…nonperformance of her settlement obligations was excused.” (Hines, supra, 167 Cal.App.4th at 1184-1185.)

The Court is authorized, therefore, to enforce the settlement agreement through entry of judgment pursuant to the terms of that agreement.

Plaintiff’s Request for Interest

Plaintiff seeks interest at a rate of 10% per annum commencing August 17, 2023, the date of the filing of Plaintiff’s ex parte motion to enforce the settlement.

Plaintiff, however, points to no provision of the settlement agreement that provides for prejudgment interest in any amount. (Weddington Productions, supra, 60 Cal.App.4th at 810 ("[N]othing 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.").

The Court denies the request for prejudgment interest.

Plaintiff’s Request for Attorneys’ Fees

As to the awarding of attorneys’ fees, the settlement agreement provides for reasonable fees and costs to the prevailing party as follows: “In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.”

Plaintiff has made this motion to enforce the settlement agreement as a judgment and is therefore the prevailing party on “any action” to enforce the agreement. Here, the agreement is being enforced through conversion to a judgment. Plaintiff seeks a total of $3,435 in fees constituting 7.5 hours at a rate of $450 per hour and $60 in filing fee costs.

The Court will award 3 hours at a reasonable local rate of $300 plus the filing costs for a total of $960 in fees and costs reasonably incurred in bringing this motion to enforce the agreement. “The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group Inc. v. Dreler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (Id.)

The Court grants the request for fees and costs in the amount of $960 incurred in bringing this motion.

Proposed Order and Judgment

The Court’s review of the proposed order indicates it is too broadly drawn regarding the inclusion of interest and attorneys’ fees in excess of the amount awarded. Moreover, judgment is entered as to the terms of the settlement as to both parties, as both parties have obligations under the agreement.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Gundy, Susanne vs. Franklin, Cheryl

Case No.:   VCL297958

Date:            October 3, 2023

Time:           8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:      Motion for Relief from Default

Tentative Ruling:  No documents have been filed in connection with this motion. It is taken off the Court’s calendar.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division