2011-00105279-CU-BC

Kathyrn A. Lenau vs. Anthony L. Garowski

Nature of Proceeding: Motion to Enter Settlement Agreement as Judgment

Filed By: Niemi, Elizabeth N.

Plaintiff’s Motion to Enter Settlement Agreement as Judgment is denied. CCP 664.6

The Reply states that the opposition was served untimely pursuant to CCP 1005(b).
Counsel states that she was served by mail with the opposition on October 21, 2013.
October 21 is eleven court days before the November 5, 2013 hearing. The plaintiff
has not established that the opposition is untimely and was not served in a manner to
be delivered at least 8 court days before the hearing. The Court is considering the
opposition. The plaintiff and defendant settled this “Marvin” action on July 11, 2013. Defendant
agreed to pay $40,000 to plaintiff at the rate of $2,000 a month, to turn over the keys to
a vehicle, and to execute a quit claim deed to real property upon the return of specified
personal property [conditions are implied with reference to which the law presumes
that the parties contracted–for example, the law will presume the property to be in a
similar condition as when the parties both controlled it]. The list of personal property to
be returned to the defendant is attached to the Settlement Agreement as Ex. A.
(Declaration of Garowski)

Plaintiff’s motion concedes that not all of the specified personal property has been
returned, that some of the property was returned damaged and that additional property
is still being located. Defendant states that a painting appeared to have been
intentionally slashed with a knife and has obtained an opinion from an antiques dealer
that the painting not repairable to its original condition. Plaintiff has offered to repair
the painting, but there is a dispute as to whether the painting will have any value after
the repair. Consequently, defendant is only willing to execute the quit claim deed if the
monetary amount of the settlement is reduced by $6,665.13.

California Code of Civil Procedure Section 664.6 provides in pertinent part that “[i]f
parties to pending litigation stipulate, in a writing signed by the parties outside the
presence of the court…for settlement of the case,… the court, upon motion, may enter
judgment pursuant to the terms of the settlement.” Because plaintiff’s motion reflects a
failure of consideration on her part, the settlement agreement, as drafted, will not be
entered as a judgment.

The parties are ordered to meet and confer in an attempt to renegotiate the settlement
agreement given the failure of consideration on the part of the plaintiff.
The Court cannot rewrite the settlement agreement, but can only determine based on
the evidence submitted the terms of the settlement agreement and whether those
terms have been complied with by both parties. Defendant’s obligation to sign the quit
claim deed has not arisen due to the damaged personal property returned to him.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.