Case Number: BC586411 Hearing Date: August 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO ENFORCE SETTLEMENT; MOTION DENIED

This action arises out of a July 1, 2013 slip and fall incident. On February 11, 2016, Plaintiff Jellan Zakiyah (“Plaintiff”) and Defendant Jack in the Box, Inc. (“Defendant”) entered into a Settlement Agreement and Release of All Claims (“the Agreement”). Defendant moves to enforce the settlement on grounds it has issued the settlement check, but Plaintiff has failed to file a request for dismissal.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code of Civ. Proc., § 664.6.)

In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment. (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.) The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304.)

There is no dispute that the parties entered into an Agreement. The Agreement states: “After this Agreement has been executed, and all settlement monies paid to Plaintiff, counsel for Plaintiff will file with the Court a Request for Dismissal with Prejudice of the Entire Action, and will provide counsel for Settling Defendants with a court conformed copy of said Dismissal. Any such Dismissal shall not constitute or be deemed a retraxit.” (Agreement, ¶ C(7).) It also provides that the Los Angeles Superior Court will retain jurisdiction to enforce this Agreement pursuant to Section 664.6 (Agreement, ¶ D(6)), and that the prevailing party in any action in law or in equity shall be entitled to actual attorney’s fees and costs in any proceeding brought to enforce or interpret the provisions of the Agreement (Agreement, ¶ D(5)).

On May 10, 2018, defense counsel sent a check for $1,000.00 and a request for dismissal to Plaintiff’s counsel and then followed up multiple times after Plaintiff’s counsel did not file the request for dismissal. (Declaration of Craig G. Holtz, ¶¶ 8-10.) Defendant seeks to enforce the Agreement to compel Plaintiff to file the request for dismissal and for recovery of the attorneys’ fees and costs involved in bringing this Motion.

Plaintiff’s counsel states that upon reviewing the instant Motion, he realized that defense counsel sent the settlement check to his personal mailbox that he set up to receive correspondence from the California State Bar, rather than the law firm address that appears on all documents filed in this case. (Declaration of Chandler A. Parker, ¶ 8.) Counsel states he never provided this address to defense counsel, never authorized defense counsel to send the settlement check there, and does not know why defense counsel sent the settlement check there. (Parker Decl., ¶¶ 9, 12.) Plaintiff’s counsel states he will now personally go to that mailbox to look for the settlement check and will then promptly file the request for dismissal or Defendant should reissue the settlement check. (Parker Decl., ¶ 11.)

It does not appear Plaintiff breached the terms of the Agreement. The Agreement states that after all settlement monies have been paid, Plaintiff will file a request for dismissal with prejudice. However, it appears Plaintiff never received the settlement check and therefore did not file the request for dismissal. While it appears undisputed that Plaintiff’s counsel failed to respond to defense counsel’s multiple inquiries regarding the status of the request for dismissal, which delayed the discovery that the settlement check had been mailed to an unexpected address, there is no provision in the Agreement which authorizes the court to enter judgment against Plaintiff for that reason.

Accordingly, the Motion to enforce settlement is DENIED. As Plaintiff is the prevailing party on this motion, Defendant must pay the attorneys’ fees incurred by Plaintiff to oppose this Motion, under the terms of the Agreement. The Court orders Defendant to pay a reduced amount of $800.00 in attorneys’ fees within thirty (30) days.

Moving party to give notice.