CIV531961 RUIHUA “REBECCA” YAN VS. GEORGE P ESHOO, ESQ

RUIHUA “REBECCA” YAN GEORGE P ESCHOO
ROBERT J. KAHN JESSE F. RUIZ

PLAINTIFF RUIHUA “REBECCA” YAN’S MOTION TO ENFORCE SETTLEMENT TENTATIVE RULING:

The Motion of Plaintiff Ruihua “Rebecca” Yan (“Plaintiff”) to Enforce Settlement is GRANTED IN PART.

Plaintiff brings this motion pursuant to Code of Civil Procedure section 664.6 to enforce the Confidential Mutual Settlement and Release Agreement (hereinafter “Settlement Agreement”) entered into with Defendant in August 2018. (See Campbell Decl., Exh. A.) The court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement, if requested by the parties. (C.C.P § 664.6.) The Settlement Agreement, which is signed by both parties, contains such a provision here. (See Settlement Agreement ¶ 23.)

Plaintiff establishes that Defendant George P. Eshoo (“Defendant”) has failed to comply with the terms of the Settlement Agreement. The parties agreed that Defendant would convey 5% of his Membership Interest in 32 & Bruce Partners, LLC (“the LLC”) to Plaintiff. (See Settlement Agreement.) The Settlement Agreement provides that Defendant “will promptly conclude such changes as are needed to the Third Amended Operating Agreement to confirm Yan’s [Plaintiff’s] ownership of her 5% Membership Interest in the LLC (the Parties acknowledge that a reasonable period of time – not to exceed thirty (30) calendar days from the effective date of this Agreement – may be required to bring the LLC current and to provide complete documentation of Yan’s Membership Interest in the LLC, beyond the Assignment attached as Exhibit B hereto).” (Settlement Agreement ¶ 7.a.(xiii).) To date, Defendant has not made such changes to the Third Amended Operating Agreement to confirm Plaintiff’s 5% Membership Interest in the LLC. Although the parties agreed to a reasonable period of time not to exceed 30 calendar days, it has now been almost a year, and Defendant has not made such changes. Accordingly, Defendant is ORDERED to comply with the Settlement Agreement and make such changes as needed to the Third Amended Operating Agreement to confirm Plaintiff’s 5% Membership Interest in the LLC. Defendant is to comply within 30 days of the date of the court’s order.

Defendant’s contention that he must first comply with the transfer requirements of the Third Amended Operating Agreement before he may transfer his interest to Plaintiff, is disingenuous. In the Settlement Agreement, Defendant represented that the other members of the LLC approved such transfer to Plaintiff, that no other authorizations or approvals were required to transfer the Membership Interest, that the transfer can be consummated without violating any agreement to which the LLC or Defendant is a party, and that there is no known impediment to the proposed transfer. (See Settlement Agreement, ¶ 7.a(iii), (iv), (vii) and (viii).) Moreover, as Plaintiff points out, the Assignment and Assumption of Membership Interest already transferred Defendant’s 5% Membership Interest to Plaintiff. (See Settlement Agreement, Exh. B.) Thus, Defendant’s 5% Membership Interest has already been transferred to Plaintiff, and Defendant must make such changes to the Third Amended Operating Agreement to confirm Plaintiff’s 5% Membership Interest in the LLC.

Defendant has proposed a Fourth Amended Operating Agreement, which Plaintiff claims dilutes her 5% Membership Interest in violation of the Settlement Agreement and further claims the scope of the changes are unnecessary. Plaintiff asks that the court order Defendant to withdraw or strike this proposed Fourth Amended Operating Agreement. Plaintiff instead proposes a Second Amendment to the Third Amended Operating Agreement. While Plaintiff’s proposed Second Amendment seems to confirm Plaintiff’s 5% Membership Interest as agreed, Plaintiff has not provided any authority to support that the court may strike Defendant’s proposed Fourth Amended Operating Agreement and order the LLC to adopt Plaintiff’s proposed Second Amendment. The court may not create the material terms of a settlement under section 664.6, as opposed to deciding what terms the parties themselves have previously agreed upon. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.app.4th 974, 984.) Thus, even if the changes to the proposed Fourth Amended Operating Agreement are more than what is needed to confirm Plaintiff’s 5% Membership Interest, it does not appear that the court has authority to order what Operating Agreement the LLC may or may not consider. The court may only enforce the terms of the Settlement Agreement. The issue of whether a Fourth Amended Operating Agreement, once approved by the LLC, would violate the Settlement Agreement between Plaintiff and Defendant, is not before the court.

Nevertheless, as discussed above, Defendant has not complied with the Settlement Agreement, and is ORDERED to comply with the Settlement Agreement and make such changes as needed to the Third Amended Operating Agreement to confirm Plaintiff’s 5% Membership Interest in the LLC. Defendant is to comply within 30 days of the date of the court’s order.

Although Plaintiff asks that the court set an OSC re: compliance by Defendant, Plaintiff may seek appropriate relief if Defendant fails to comply with the court’s order.

Lastly, Plaintiff asks the court for an award of attorneys’ fees, expert witness fees and costs incurred in making this motion. (See Plaintiff’s Memorandum of Points and Authorities, 4:6-7.) Plaintiff fails to provide any support for this request. Therefore, this request is DENIED. (See Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35, superseded by statute on other grounds in Union Bank v. Sup.Ct. (1995) 31 Cal.App.4th 573, 583 [“[a] point which is merely suggested by [a party’s] counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion”].)

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.