Tentative Ruling: Montecristo #1 Living Trust UTD 9/24/2015 et al vs Laura Jean Nary et al
Case Number
20CV03042
Case Type
Hearing Date / Time
Mon, 04/13/2026 - 10:00
Nature of Proceedings
Motion: Enforce re Settlement
Tentative Ruling
Montecristo #1 Living Trust etc., et al., v. Laura Jean Nary, et al.
Case No. 20CV03042
Hearing Date: April 13, 2026
HEARING: Defendants’ Motion To Enforce Settlement Agreement Pursuant To Code of Civil Procedure Section 664.6
ATTORNEYS: For Plaintiffs and Cross-Defendants Montecristo #1 Living Trust UTD 9/24/2015 and Montecristo #2 Living Trust UTD 9/24/2015 and Cross-Defendants Hugo Roberto Garcia and Marciel Gabriela Hines: John J. Thyne III, Lacy L. Taylor, Thyne Taylor Fox Howard, LLP
For Defendants Laura Jean Nary and Kevin Russell Nary: Robert B. Forouzandeh, Riviera Law Group, PC
For Defendant and Cross-Complainant Butterfly Lane Condominiums Homeowners’ Association, Inc.: Lisa A. Tashjian, Beaumont Tashjian
For Cross-Complainants Laura Jean Nary and Kevin Russell Nary: Christopher E. Haskell, Emily B. Harrington, Price Postel & Parma LLP
TENTATIVE RULING:
For the reasons set forth herein, the motion of defendants Laura Jean Nary and Kevin Russell Nary to enforce settlement agreement pursuant to Code of Civil Procedure section 664.6 is denied, without prejudice to any appropriate future motion for entry of judgment pursuant to Code of Civil Procedure section 664.6 that may be filed and served in the future. Defendants shall give, and file proof of service of, notice of the court’s ruling herein.
Background:
As alleged in plaintiffs’ complaint, plaintiffs Montecristo #1 Living Trust UTD 9/24/2015 and Montecristo #2 Living Trust UTD 9/24/2015 (collectively, plaintiffs or Trusts), whose trustees are Hugo Roberto Garcia and Marciel Gabriela Hines, respectively are co-owners as tenants in common of real property located at 89 Butterfly Lane, in Santa Barbara. (Complaint, ¶¶ 1-2.) Defendants Laura Jean Nary and Kevin Russell Nary (collectively, the Narys) are co-trustees of the Nary Family Trust UTD 3/28/2012, which is the owner of real property located at 87 Butterfly Lane. (Complaint, ¶¶ 3-4.)
The properties located at 87 and 89 Butterfly Lane are two of three units within the Butterfly Lane Condominiums Homeowners’ Association (the HOA). (Complaint, ¶ 6.) The third unit within the HOA is the real property located at 85 Butterfly Lane, which is owned by defendant Mary Mooney, as trustee of the Mooney Family Trust UTD 6/4/2010. (Complaint, ¶ 5.) Mary Mooney is the mother of Laura Nary, to whom Mooney has given a power of attorney. (Ibid.) Laura Nary serves as President of the HOA. (Complaint, ¶ 3.)
The HOA operates pursuant to a Declaration of Covenants, Conditions, and Restrictions (the CC&R’s), which was recorded on January 15, 1985. (Complaint, ¶ 6.) In 2014, the HOA was a defunct corporation. (Complaint, ¶ 17.)
Between 2014 and 2017, the Narys harassed defendants Garcia and Hines about conditions on their property that existed prior to their purchase of their property and that were inconsistent with the condominium plan. (Complaint, ¶ 22.) At the time the Narys and the HOA enforced compliance with that plan against plaintiffs, violations of the condominium plan also existed at 85 and 87 Butterfly Lane. (Complaint, ¶¶ 11-14 & 37.) On June 19, 2017, fed up with the Narys, Garcia and Hines decided to list 89 Butterfly Lane for sale. (Complaint, ¶ 23.)
On July 11, 2017, the Narys filed litigation against the Trusts. (Complaint, ¶ 24.) After filing suit, the Narys contacted the listing agent of 89 Butterfly Lane to interfere with marketing efforts of 89 Butterfly Lane by referencing the lawsuit and demanding it be disclosed to any potential purchasers. (Complaint, ¶ 25.) Plaintiffs had to remove their property from the market due to the Narys’ involvement. (Ibid.)
On September 21, 2020, plaintiffs filed their complaint in this action asserting eight causes of action: (1) declaratory relief re disqualification of officer; (2) declaratory relief re improper prohibition of additional dwelling units in CC&R’s; (3) interference with prospective economic advantage (as to the Narys only); (4) negligence; (5) trespass; (6) nuisance; (7) breach of contract; and (8) breach of fiduciary duty.
On November 3, 2020, HOA filed a cross-complaint against Hines, Garcia, and the Trusts.
On November 16, 2020, the Narys and Mooney filed their cross-complaint against Hines, Garcia, and the Trusts.
On November 30, 2020, Hines, Garcia, and the Trusts filed their answer to the HOA cross-complaint.
On February 1, 2021, plaintiffs requested, and the court entered, dismissal without prejudice as to defendant Mooney on plaintiffs’ complaint.
On April 12, 2021, the court ordered Santa Barbara Superior Court case number 20CV01647, entitled Kevin Russell Nary, et al. vs. Maricel Gabriela Hines, et al. (the Related Case), related to this case.
On April 13, 2021, the Narys and the HOA filed their answer to plaintiffs’ complaint, as it existed after the court sustained an unopposed demurrer of the Narys to the third cause of action of the complaint, and granted an unopposed motion of the Narys to strike portions of the complaint.
On March 22, 2022, with leave pursuant to court order signed on March 21 and entered on March 22, 2022, the HOA filed its operative first amended cross-complaint (the FACC) against Hines, Garcia, and the Trusts.
On April 29, 2022, Hines, Garcia, and the Trusts filed their answer to the FACC.
On May 6 and May 9, 2022, the court entered orders in regard to the terms of a judicially supervised settlement agreement, and retaining jurisdiction over this case and the Related Case.
On January 31, 2023, plaintiffs filed a request for dismissal of the entire action, with prejudice, which was entered as requested by plaintiffs on February 1, 2023.
On December 19, 2025, the Narys filed a motion for an order enforcing a “Settlement Agreement and Mutual Release of All Claims” (the Agreement) pursuant to Code of Civil Procedure section 664.6.
In support of the motion, Laura Nary (L Nary), who has served as a director of the HOA since before the Agreement was executed, asserts that the disputes between the parties arose from a purported failure by Garcia to meet financial obligations, which resulted in the filing of this action and the Related Case. (L Nary Dec., ¶¶ 1 & 9-10.) To fully and finally resolve those disputes and avoid further litigation, the parties reached a settlement, and Garcia and Hines, who was then on the title to 89 Butterfly Lane, entered into the Agreement with the Narys, the HOA and Mooney. (L Nary Dec., ¶¶ 11-12.) A copy of the Agreement is submitted with the declaration of L Nary. (L Nary Dec., exhibit 4.)
The declaration of L Nary generally describes the purportedly material, non-financial terms of the Agreement apart from the payment of settlement sums, which are ostensibly contained in section 3 of the Agreement. (L Nary Dec., ¶ 20.) That declaration also describes assessments required to fund and complete the terms of the Agreement, which were imposed by the HOA. (L Nary Dec., ¶¶ 29-38.)
L Nary asserts that, beginning in July 2024, Garcia stopped cooperating with the process required by the Agreement, which undermined the cooperative framework essential to its purpose. (L Nary Dec., ¶ 24.) According to L Nary, Garcia failed to submit revised plans for 89 Butterfly Lane until July 2025 which impacted every component of the Agreement; ceased paying regular assessments to the HOA in July 2024, which resulted in the HOA initiating collection proceedings and recording a lien against Garcia’s unit; and filed a new complaint against the Association, the Narys, and other parties without initiating a mediation process which, according to L Nary, constitutes a breach of the Agreement’s obligation of cooperation, covenant not to sue, and dispute resolution provisions. (L Nary Dec., ¶¶ 24-29, 33-38, 40-49.)
The motion is also supported by a declaration of the HOA’s former counsel, Tara Radley (attorney Radley), who states that their firm executed the Agreement as to form. (Radley Dec., ¶¶ 2-3.) Attorney Radley asserts that the Agreement requires coordinated performance by the parties including: (a) pursuing and cooperating in the condominium plan/map modification (the Project) to implement agreed upon boundary and exclusive use/common area reconfigurations with necessary approvals; (b) payment of regular and duly adopted special assessments to fund the Project; and (c) adherence to dispute-resolution and covenant-not-to-sue provisions intended to avoid new litigation over matters covered by the Agreement. (Radley Dec., ¶ 4.)
According to attorney Radley, Garcia failed to perform material obligations under the Agreement from late 2024 and continuing into 2025, including by failing to timely submit required architectural and landscaping plans, and failing to pay monthly and special assessments. (Radley Dec., ¶¶ 5-6.)
On January 28, 2025, attorney Radley’s firm sent a letter to Garcia’s counsel requesting payment of monthly assessments. (Radley Dec., ¶ 8.) After Garcia failed to pay the outstanding charges, the HOA approved an assessment lien that was recorded on March 13, 2025. (Radley Dec., ¶ 9.) Attorney Radley also sent a demand letter on April 29, 2025, requesting that Garcia perform under the Agreement, including by submitting landscaping and architectural plans and paying outstanding fees. (Radley Dec., ¶ 10.) Garcia did not provide the required plans, and did not cure the nonpayment of assessments until May 2025. (Radley Dec., ¶ 11.) Attorney Radley asserts that Garcia’s noncooperation and nonpayment constitute a breach of the Agreement. (Radley Dec., ¶ 13.)
Plaintiffs have filed an opposition to the motion. In support of the opposition, Garcia asserts that the Narys have failed to perform their obligations under the Agreement, including by failing to build a privacy wall and to modify the condominium map and CC&R’s; that any delays in the permitting process or in submitting architectural plans were not caused by Garcia; and that Garcia was overcharged for and disputes assessments levied by the HOA, including proposed assessments to fund the HOA’s legal fees in connection with Santa Barbara Superior Court case number 25CV02983, which Garcia contends arises from post-Agreement conduct by the Narys. (Garcia Dec., ¶¶ 6-11, 14-16 & 19-22.)
Analysis:
“[T]he methods for enforcing a settlement are a motion for summary judgment, a separate suit in equity, an amendment to the pleadings in the settled action or a motion under [Code of Civil Procedure] section 664.6.” (Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 338.) Relevant here, Code of Civil Procedure section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.” (Code Civ. Proc., § 664.6, subd. (a).)
“Code of Civil Procedure section 664.6 provides a summary, expedited procedure to enforce settlement agreements.” (Sayta v. Chu (2017) 17 Cal.App.5th 960, 962, fn. omitted.) “Even though it is not exclusive, Code of Civil Procedure section 664.6 is intended to provide a means for enforcing an agreement that requires nothing more than a single motion.” (In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 898.) “The entry of a judgment pursuant to section 664.6 enables parties to enforce a settlement agreement without having to file a separate lawsuit.” (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1155.)
“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement.” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182 (Hines).) “In order to be enforceable pursuant to the summary procedures of section 664.6, a settlement agreement must either be entered into orally before a court ... or must be in writing and signed by the parties.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 (Weddington).)
The Agreement include the following language: “without admitting any wrongdoing, fault or liability of any kind, the Parties have agreed to resolve all disputes and release any and all claims, whether known or unknown, against each other and to enter into this Agreement.” (L Nary Dec., exhibit 4 at p. 2.) Absent a dispute by Garcia, the present undisputed record is sufficient to show that Garcia, Hines, the Narys, Mooney, and the HOA signed the Agreement on August 12, 2022. (L Nary Dec., exhibit 4 at p. 11.)
In their opposition to the motion, Garcia presents no reasoned legal or factual argument showing why the Agreement is not valid or binding. Moreover, “a party moving for the entry of judgment pursuant to a settlement under Code of Civil Procedure section 664.6 need not establish a breach of contract to support relief under the statute.” (Hines, supra, 167 Cal.App.4th at p. 1185.)
Section 664.6 further provides: “If the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6, subd. (a).)
In support of the motion, the Narys request that the court take judicial notice of the minute order entered in this case on May 9, 2022 (the Minute Order). (RJN at p. viii, ll. 2-3; exhibits to RJN, part 4, exhibit F.) The court will grant the Narys’ request for judicial notice of that court record. (Evid. Code, § 452, subds. (c), (d).)
The Minute Order states: “The terms of the judicially supervised settlement agreement, enforceable under CCP 664.6, are placed on the record as transcribed by the court reporter and rehearsed by Counsel, Tara Radley. [¶] The Court maintains jurisdiction over both matters.” (Exhibits to RJN, Part 4, exhibit F.) In addition, the Agreement states: “The Parties hereby agree and stipulate that the court retains jurisdiction under C.C.P. Section 664.6, and upon motion filed by either party, may enforce this settlement agreement, until performance in full of the terms of the settlement.” (L Nary Dec., exhibit 4 at p. 9, ¶ 20.)
For all reasons discussed above, the present record is sufficient to show, without dispute, that Garcia expressly consented in writing to a valid, binding settlement that may be enforced against Garcia. (Weddington, supra, 60 Cal.App.4th at p. 810.) The record also reflects that the court retained jurisdiction over the parties to enforce the Agreement until its performance in full.
Notwithstanding whether, under the circumstances present here, the court is authorized to enter judgment pursuant to the Agreement (Hines, supra, 167 Cal.App.4th at p. 1185), and “may receive evidence, determine disputed facts, and enter the terms of [the] [A]greement as a judgment” (Weddington, supra, 60 Cal.App.4th at p. 810), the motion does not include, expressly or by inference, any request for entry of judgment, which is the only order the court may, at this stage of the proceedings, enter under Code of Civil Procedure section 664.6.
Instead, the motion seeks or effectively seeks an order compelling Garcia to “take all actions required to perform” under the Agreement, including by executing documents, issuing a full release of claims, and dismissing or staying Garcia’s new complaint. (Notice at p. 3, ¶¶ (1) & (3)-(4); see Code Civ. Proc., § 577 [defining “judgment”].) Wholly absent from the motion is any reasoned argument showing why the court may enforce the Agreement against Garcia absent the entry of a judgment. (See also, and generally, Code Civ. Proc., § 680.010 et seq. [the Enforcement of Judgments Law].)
The court also declines to deem the motion as a request to enter judgment pursuant to the terms of the Agreement for the reasons further discussed below.
“An application for an order is a motion.” (Code Civ. Proc., § 1003.) “A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion....” (Code Civ. Proc., § 1005.5.)
Code of Civil Procedure section 664.6 authorizes the court to enter judgment “upon motion....” (Code Civ. Proc., § 664.6, subd. (a).) As the Narys have included a written notice of the present motion, it appears that the Narys do not dispute, and effectively concede, that the motion requires written notice. (Code Civ. Proc., § 1005, subd. (a)(13); see also Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 368–370 (Rooney) [entry of judgment without notice was improper where not authorized by settlement agreement]; Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1109 [general discussion of valid waiver of right to receive notice of entry of judgment].)
Subject to exception not relevant here, “the notice of a motion ... must state ... the grounds upon which it will be made....” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].) In addition, the motion must “state the basis for the motion and the relief sought[.]” (Cal. Rules of Court, rule 3.1112()d)(3).) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) “In general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion.” (People v. Williams (1999) 20 Cal.4th 119, 129.)
Though the notice of the present motion sets forth conduct which the Narys contend constitutes a refusal by Garcia to perform under the terms of the Agreement, and requests an order compelling Garcia to perform under the Agreement, wholly absent from the notice are the specific terms of the Agreement which form the basis for any judgment requested by the Narys. For this reason, the notice fails to sufficiently inform the court and Garcia of the nature of the judgment requested by the Narys, including the “facts prerequisite to entering judgment.” (Rooney, supra, 10 Cal.3d at p. 370.) The deficiencies in the notice also prevent the court and Garcia from determining whether any judgment to be entered includes all of the terms agreed upon by the parties. (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176 [“[t]he court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.”].)
In addition, “[w]hile the court may interpret the terms of the parties’ settlement agreement, ‘nothing in [Code of Civil Procedure] section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.’ [Citations.]” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.)
Though absent from the notice, the motion describes obligations ostensibly contained in sections 3, 16, 23, and 24 of the Agreement which the Narys seek to enforce against Garcia. (See L Nary Dec., ¶¶ 20, 42, 44, 46 & 47; memorandum at pp. iv-v.) The Agreement also obligates Garcia to pay settlement sums to the Narys and the HOA; to keep their sewer lateral clear; and to allow units 85 and 87 to keep certain existing improvements. (L Nary Dec., exhibit 4, §§ 2(A), 3(B), (C).) The Agreement also obligates or effectively obligates the HOA to allow legal rentals. (L Nary Dec., exhibit 4, § 3(G).) The motion does not address, or seek to enforce, those terms of the Agreement. Because the motion “states some of the settlement terms but omit[s] ... others, it fails to accurately reflect the terms of the parties’ settlement agreement and therefore fails to comply with section 664.6.” (Machado v. Myers (2019) 39 Cal.App.5th 779, 801.)
“[A]lthough section 664.6 provides a valuable tool in aid of enforcing settlements, it does not float in the ether to be drawn upon whenever a party seeks enforcement.” (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008.) “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Though the examples provided herein are intended to be illustrative but not exhaustive, the motion, for all reasons discussed above and notwithstanding whether there exists a valid and binding settlement between the parties, is procedurally and substantively inappropriate and fails to comply with due process. For those reasons, the court will deny the motion, without prejudice to any motion for entry of judgment pursuant to Code of Civil Procedure section 664.6, if appropriate, that may be filed and served by the Narys in the future.
The Narys’ request for judicial notice:
In addition to the Minute Order further discussed above, the Narys request that the court take judicial notice of the CC&R’s; the complaint filed in the Related Case (the Related Complaint); the complaint filed in this action; the cross-complaint of the HOA filed in this action on November 3, 2020, (the HOA Cross-Complaint); and the complaint filed on May 12, 2025, in Santa Barbara Superior Court case number 25CV02983 entitled Garcia, et al., v. Butterfly Lane Condominium Owners’ Association, et. al. (the Garcia Complaint).
Though not necessary, the court will grant the request for judicial notice of the Related Complaint, the complaint filed in this action; the HOA Cross-Complaint, and the Garcia Complaint. (Evid. Code, § 452, subd. (d)(1).)
As to the CC&R’s, which the undisputed record reflects were recorded in the official records of the County of Santa Barbara on January 15, 1985 (exhibits to RJN part 1, exhibit A), “[w]hile courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) In addition, the relevancy of the CC&R’s to the issue of whether judgment pursuant to the terms of the Agreement may be entered under Code of Civil Procedure section 664.6, is questionable. (See Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) For these reasons, and at this stage of the proceedings, the court will deny the request for judicial notice of the CC&R’s.
The Narys’ evidentiary objections:
With their reply, the Narys submit objections to material appearing in the Garcia declaration submitted in support of plaintiffs’ opposition. The court considers only that evidence which is admissible and relevant to the issues presented.
Procedural matters:
California Rules of Court require page numbering to “use only Arabic numerals (e.g., 1, 2, 3).” (Cal. Rules of Court, rule 2.109.) The memorandum submitted in support of the motion uses numerals “i” through “xiii” for page numbering instead of Arabic numerals. The request for judicial notice also uses numerals “i” through “ix” for page numbering. For these reasons, the motion fails to comply with court rules.
The Narys’ attorney, “like all California attorneys, is bound by ... the California Rules of Court.” (People v. Alvarez (2025) 114 Cal.App.5th 1115, 1118.) Counsel is reminded of their obligation to comply with the California Rules of Court.