2015-00178510-CU-OR

Kenneth J. Dell vs. Richard A. Magers

Nature of Proceeding: Motion to Enforce Settlement and Order for Dismissal

Filed By: Dell, Kenneth J.

The motion of Plaintiffs and Cross-Defendants Kenneth J. Dell and Sharon E McKee (collectively “Plaintiffs”) to enforce settlement pursuant to CCP § 664.6 is GRANTED; monetary sanctions DENIED.

On 4/27/17, Plaintiffs and Defendant/Cross-Complainant Richard A. Magers (Defendant) entered into a written settlement agreement. Each side agreed to dismiss with prejudice their/his legal claims against the other(s) within five days and resolve their real property dispute pursuant to specified terms. (See Plaintiffs’ Exh. B.) According to Plaintiffs, Defendant has refused to dismiss his claims in the cross-complaint. Plaintiffs’ claims have been dismissed with prejudice.

In his opposition, Defendant argues he has not dismissed his claims because other terms of the settlement have not occurred. Because the obligation to dismiss legal claims is not contingent upon occurrence of such other terms, this argument is unavailing.

Defendant also argues that the settlement agreement does not contain the parties’ stipulation to this court’s jurisdiction to enforce the settlement post-dismissal. Thus, he suggests he was entitled to forebear from dismissing his claims so as to preserve the court’s jurisdiction.

What the settlement agreement provides is that the settlement is enforceable pursuant to CCP § 664.6 and “may be enforced by motion or any other procedure permitted by California law.” In addition, the order appended to the agreement indicates the court

retained jurisdiction to enforce the settlement.

Because Defendant’s legal claims have not been dismissed, the court need not decide whether the parties stipulated to the court’s post-dismissal jurisdiction. The court has jurisdiction to enforce the settlement and concludes Defendant has failed to perform, i.e., by failing to request the dismissal of his claims as promised.

Plaintiffs’ request for a monetary sanction is DENIED.

Disposition

The motion is granted; sanctions denied.

No formal order granting the motion is required.

Pursuant to CRC 3.1312, Plaintiffs shall lodge for the court’s signature a “Judgment and Order of Dismissal” that dismisses Defendants’ claims in the cross-complaint, sets forth the parties’ respective obligations enumerated under the settlement agreement, and provides that the court will retain jurisdiction to enforce the judgment. (See Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1161 [“’The jurisdiction of a court of equity to enforce its decrees is coextensive with its jurisdiction to determine the rights of the parties, and it has power to enforce its decrees as a necessary incident to its jurisdiction.’”].)