2015-00174600-CU-CL

Richard Schmitt vs. Javed Siddiqui

Nature of Proceeding: Motion for Clarification/Reconsideration of Motion to Enforce Settlement

Filed By: Kolb, Klaus J.

Defendant Siddiqui’s Motion for Clarification and/or Reconsideration of Order on Plaintiff’s Schmitt’s Motion to Enforce Settlement Against Defendant Javed Siddiqui is GRANTED, as set forth below. C.C.P., sec. 664.6

Defendant Siddiqui moves as to the Court’s Minute Order of Nov. 29, 2017, on the

basis that the proposed formal order contains a significant ambiguity and/or implicitly assumes critical facts about the terms of the Settlement Agreement on which defendant did not have an opportunity to present further argument or evidence given the Court’s prior tentative ruling denying plaintiff’s motion for lack of jurisdiction. Parenthetically, the court does not restrict the scope of oral argument to the tentative ruling; counsel could reasonably have addressed the property to be returned at the prior oral argument. As the court always states, precedent to all oral argument, the court reserves the right to change its mind after hearing the argument of counsel.

Nonetheless, the Court’s Minute Order of Nov. 29, 2017, following oral argument, found that it had jurisdiction under Code Civ. Proc., § 664.6 to enforce the written settlement agreement in this construction defect action, agreed to at the Mandatory Settlement Conference on May 2, 2017.

That Settlement Agreement provided in pertinent part that Defendant shall pay to Plaintiff the total sum of $10,000.00; Defendant will return to Plaintiff the following items: (1) The “Operator” and associated parts (which is defined in the settlement agreement as gate motors, receivers, control areas, and associated hardware); (2) Gate remote controls/ transmitters – eleven (11); (3) Existing wrought iron fence; (4)

Gates – 2 vehicle, 1 main gate; (5) Defendant to use contractor to remove above items and best efforts to preserve in current condition. Defendant will return above items within 90 days – (good faith target date).

Plaintiff now appropriately seeks a clarification/reconsideration of the order issued Nov. 29, 2017, to address the property required to be returned to plaintiff. As perceived by the court, it is a clarification request. Specifically, the defendant, Siddiqui, disputes plaintiff’s request that the Court order that defendant return to plaintiff the steel fence posts and the junction box which defendant Siddiqui was purportedly required to return under the express terms of the Settlement Agreement.

Defendant contends that “Keeping the steel posts and junction box in place, to allow replacement and immediate operation of the gate, was the critical factor in Mr. Siddiqui’s decision to enter into the Settlement Agreement, and Mr. Siddiqui believes it would be a violation of the Settlement Agreement and his due process rights to require him to remove these items without at least an evidentiary hearing on this specific issue.”

It is clear to the Court that the plaintiff Schmitt requested and defendant Siddiqui agreed in the written Settlement Agreement to return “the (3) Existing wrought iron fence;…” The Kolb Declaration reflects that the “wrought iron fence” is attached to steel posts, which are set in concrete. There was never a request by plaintiff to dig or jackhammer the steel posts out of the concrete, but merely to return the wrought iron panels themselves. The wrought iron panels had been the subject of complaints as “poorly manufactured, rusting, and in some respects, not code compliant.” (Kolb Dec., ¶ 6)

The defense asserts that plaintiff and his counsel did not request that the defendant was required to remove the wiring or the “junction box” necessary to operate the gates. The “junction box” is not an expressly defined part of “(1) The “Operator” and associated parts (which is defined in the settlement agreement as gate motors, receivers, control areas, and associated hardware);” as set forth in the Settlement Agreement. The “Operator” was defined with an asterisk at the Court’s request during

the MSC. However, the Court finds that no reasonable person would fail to conclude that the gate controller is the “Operator” and that the junction box is included as “associated hardware” in the itemized list of components of the “Operator”. The junction box shall be returned by Siddiqui to the plaintiff.

The Court declines defense counsel’s request for oral evidence to be presented at the hearing to assess relative credibility.

The Court’s order is modified to exclude the “steel posts” (which support the wrought iron fence) but to include the “junction box” in the items to be returned by defendant to plaintiff.

These and the remaining items on the itemized list at ¶ 6 of the Settlement Agreement shall be returned by defendant to plaintiff not later than Wed., Jan. 31, 2018.