SCV-246408, Dunkelis v. Aronoff
Plaintiff’s motion to enforce judgment or agreement is denied without prejudice.

Plaintiff first requests that this matter now be heard by Judge Shaffer. Plaintiff argues that Judge Shaffer presided over the settlement conference making her the appropriate judge to hear this matter under Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533. As asserted, this court continued the trial and set a settlement conference on July 26, 2013 before Judge Shaffer. Having discussed settlement, the matter was continued to this department at which time the trial was continued at the request of the parties. A further settlement conference occurred before Judge Shaffer on July 30, 2013. Judge Shaffer continued this matter back to this department to July 31, 2013. At that time, after the parties engaged in further discussions, a written and signed settlement was offered, was addressed by this court, and a proposed settlement agreement was admitted as an exhibit. This court addressed that agreement on the record, the parties agreed to its terms, and the court then granted Plaintiff’s request to dismiss the action with prejudice. An order to show cause was set for August 29, 2013.

The court determines that Plaintiff’s authority, Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533, does not apply to the circumstances here presented. First, this court addressed the settlement issues before the parties agreed to enter into the settlement and confirm the terms before this court. Second, this court has already been presented with numerous motions regarding the settlement in question and no objection was raised. As such, Plaintiff waived this issue.

Nothing in CCP § 664.6 indicates that the judge who presides over a settlement conference must be the judge who hears a subsequent motion to enforce the settlement or that a party has a right to make such a demand.

As to the substantive motion to enforce, the settlement terms according to Plaintiff include that Plaintiff is to pay $25,000 of Defendant’s attorney’s fees lien while Defendant will pay the remaining $25,000 and clear tax liens on the real property; Defendant will also quitclaim the real property to the parties’ son, Brendan, and keep all of the rest of the assets. Plaintiff now claims that Defendant was to do this at close of escrow which was June 3, 2013. Plaintiff does not state what shows that Defendant had to act by the close of escrow and the only mention of this is an e-mail from Defendant in Exhibit C, which is part of the parties’ negotiations and which states “this would take place at the close of escrow.” Plaintiff otherwise contends that Defendant refuses to pay the money, that Defendant lied on the last motion to enforce settlement, that Defendant is lying in his statements that he has no money, and aside from that on the same basic assertions and statements about the settlement which she raised before.

Plaintiff has failed to state in her declaration that she has complied with the terms of the settlement reached in court.

The motion is denied without prejudice.