Case Name: D&I Investment, Inc. v. Nash

Case No.: 1-10-CV-187183

On February 13, 2014, Plaintiffs moved to enforce a settlement agreement. This motion was originally set for hearing on April 1, 2014, and then continued by stipulation to April 24, 2014. At that time, the Court granted the parties leave to file additional papers and continued the matter to May 22, 2014.

Plaintiffs’ notice of motion did not state what order Plaintiffs want the court to issue, and the Court does not have a proposed form of order. Plaintiffs’ notice asserted that Defendants have failed to provide information (unspecified) for a revised plan, and failed to remove an obstruction. The initial moving papers were full of complaints about the other side’s conduct, but were not helpful to the Court in discerning what the dispute is and the current status.

The Court understands that Plaintiff is seeking an order that Defendants (1) provide to Ed Duazo at the County office “5 sets of revised plans (full-sized sets—24”x36”) and one reduced size copy (11”x17”) to Land Development Engineering.”), and 2) remove the post-and-chain obstruction.

As to the revised plans, Defendants’ opposition stated that these documents were provided on April 9, 2014. (Opposition, at 2:1.) In reply, Plaintiff stated that what was provided by Defendants to the County in April added language inconsistent with the settlement agreement and the Court’s order because it refers to a 3-foot shoulder.

Defendants contend that the proposed language is not inconsistent because the County requires a 3-foot shoulder for a 12-foot wide driveway. In support of this contention, Defendants provide the Supplemental Declaration of Carol Lanini Nash attaching as Exhibit A a purported email from Mr. Duazo stating that the SD5 document (requiring a 3-foot shoulder) is the current driveway standard.

Plaintiffs make two points in response. First, Plaintiffs contend that the settlement agreement does not promise a driveway for the Lanini parcel. However, the settlement agreement repeatedly referred to a driveway, and Plaintiffs’ current contention that the reference is only “casual” (Plaintiffs’ Reply to Supplemental Points and Authorities, at 3:11) is not persuasive, particularly given Plaintiffs’ insistence with respect to other issues that the settlement agreement must be construed in accordance with the words used therein.

Plaintiffs’ second point is that the County’s driveway standards do not apply to this project. Plaintiffs do not object to Exhibit A as hearsay, but rather argue that it supports their contention because therein Mr. Duazo “made it clear” that the driveway standard does not apply. (Plaintiffs’ Reply to Supplemental Points and Authorities, at 4:8-11.) However, Exhibit A does not so state, clearly or otherwise. Plaintiffs also submit a hearsay email from another County engineer, Darrell Wong, to prove that a 3-foot shoulder is not required. However, Mr. Wong’s purported email, which apparently was copied to Mr. Duazo (as Exhibit A was apparently copied to Mr. Wong), is vague in addition to not being under oath. Plaintiffs have the burden on this motion and they have not met that burden with respect to Defendants’ submission of plans to the County.

As to the obstruction, the settlement agreement provides that it should be removed by March 15, 2013. Defendants initially argued that the request for compliance with that language was submitted to Judge Yew and denied on March 28, 2013. That contention is inconsistent with the Court’s minute order of that date which states: “Parties are to comply with these schedule dates: Written comments from Defense are due no later than 5 p.m. on March 29, 2013 and Plaintiff’s response regarding release and work due by April 12, 2013. Defendant [sic] need to give Plaintiff report by April 1, 2013. Hearing date previously set on May 10, 2013 remains as set.”

In the supplemental papers, Defendants rely on the language of the settlement agreement, at paragraph 1(g) on page 5, that: “Prior to the installation of any roadway, D&I shall have the right to use only the four and a half feet of the NASH property anticipated to be part of the roadway.” Now, Defendants argue, that four and a half feet area will not be part of the roadway, so there is no basis and no need for removal of the post. Plaintiffs have not submitted persuasive evidence in response to these points, and have not met their burden as to this issue.

The motion is denied.