John Ziegler v. Dennis Allen Associates [and related cross-actions]

Case Number

23CV00325

Case Type

Hearing Date / Time

Tue, 01/14/2025 - 15:27

Nature of Proceedings

Motion of Plaintiff John Ziegler to Enforce Settlement Pursuant to Code of Civil Procedure Section 664.6

Tentative Ruling

For Plaintiff John Ziegler: John J. Thyne III, Adam T. Carralejo

For Defendant and Cross-Complainant Dennis Allen Associates: Domingo R. Tan

[For other appearances see list.]

RULING

For the reasons set forth below, the motion of Plaintiff John Ziegler to enforce settlement pursuant to Code of Civil Procedure section 664.6 is denied as moot. No attorney’s fees will be awarded in connection with the motion.

Background

This action commenced on January 26, 2023, by the filing of the complaint by Plaintiff John Ziegler (“Plaintiff”) against Defendant Dennis Allen Associates (“DAA”) under causes of action for: (1) Negligence - Construction Defect, (2) Breach of Contract - Construction Agreement, and (3) Violation of Business and Professions Code Section 7159.

As alleged in the complaint:

Plaintiff is the owner of 1050 Cold Springs Road in Montecito. (Compl., ¶ 6.) On March 8, 2021, Plaintiff and DAA entered into a construction agreement for a residential remodel. (Id at ¶¶ 7, 8.) Work was to commence on or before April 26, 2021, and work was to be completed by March 28, 2022. (Id. at ¶¶ 10, 11.)

DAA’s work suffered from delays, communication issues, and workmanship issues throughout the job. (Compl., ¶ 12.) By July 2022, Plaintiff discovered several material defects including, defective hot water and flooding in the shower in the master bedroom, defective outdoor lighting, failures to install water and electrical connections, the front gate was in disrepair, master bedroom doors were not installed, there were exposed wires and water leaks, and construction debris was not removed. (Id. at ¶ 13.) On July 5, 2022, it was demanded that DAA remedy the defects within seven business days. (Ibid.)

DAA failed to remedy the defects, and, through July and August 2022, additional defects were discovered. (Compl., ¶ 14.)

On August 16, 2022, DAA demanded an additional $293,480.32 prior to delivering an “End of Job Cost Report” on August 30, 2022. (Compl. ¶ 15.) Upon preliminary review of the report, it was determined that DAA had included excessive charges, totaling $405,336.00, for various thing. (Id. at ¶ 16.) DAA refused to accept any of the findings from the preliminary review and, instead, blamed Plaintiff and others. (Id. at ¶ 17.)

By September 2022, multiple other construction defects were discovered, some of which were remedied and some of which were not. (Compl., ¶¶ 18 - 20.)

On March 17, 2023, DAA filed its answer to the complaint, setting forth a general denial and asserting 60 affirmative defenses.

Along with the filing of its answer, DAA filed a cross-complaint against Action Roofing (“Action”), Big Phase Inc. dba A. Wood Electric, Embers West Inc., Fordyce Custom Carpentry Inc., Insulate SB Inc., JNL Glass Inc., John Kenney Construction Inc., Korbacher Glass Inc., Montie Wayne Sheet Metal and Heating Inc. (“Montie Wayne”), Pyramid Tile Company (“Pyramid”), Specialty Team Plastering Inc., Ventura County Plumbing Inc., and Wick Boiler Service Inc. The cross-complaint essentially alleges various causes of action for indemnity, breach of warranty, and breach of contract.

Each of the cross-Defendants have filed answers to the cross-complaint, setting forth general denials and asserting affirmative defenses.

On August 29, 2024, Plaintiff filed a notice of settlement of entire case.

On November 14, 2024, Plaintiff filed the present motion to enforce settlement against Action, Montie Wayne, and Pyramid, arguing that the parties had entered into a written settlement agreement (“agreement”) but that Action, Montie Wayne, and Pyramid all failed to make payment within 30 days of the execution of the agreement as required.

On January 2, 2025, Pyramid filed opposition to the motion arguing that had satisfied all terms and conditions of the agreement, making the motion moot.

By way of his reply, filed January 7, 2025, Plaintiff acknowledges that all three entities have now paid the agreed upon settlements and the motion to enforce is now moot. Action agreed to pay $475.00, for attorney fees and costs associated with the motion, and Montie paid $495.00. Plaintiff now solely seeks an award of $1,465.00 from Pyramid associated with the motion.

Analysis

Code of Civil Procedure section 664.6 provides:

“(a) 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. 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.

“(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

“(1) The party.

“(2) An attorney who represents the party.

“(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.

“(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

“(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.”

“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) Cal.App.4th 1174, 1182.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Id.)

A court hearing a motion brought under section 664.6 may “receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment”, but may not “create the 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.)

Plaintiff argues: “The Court should order the offending cross-Defendants to pay their required contributions and to pay Plaintiff attorneys’ fees incurred in this motion.”

Plaintiff does not seem to appreciate the fact that a motion under Code of Civil Procedure 664.6 is for the purpose of turning a settlement agreement into a formal judgment. The purpose is not to order a party to comply with something that has been agreed to.

Plaintiff did not provide a copy of the agreement, claiming it is confidential, and the court, therefore, would have no means of entering a judgment that conforms to the agreement. Even so, Plaintiff acknowledges that the motion is moot, except as to the request for attorney’s fees from Pyramid.

By way of declaration, Plaintiff’s counsel represents that: “The Parties agreed that in the event of any dispute or disagreement arising out of or in relation to the Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs related to any such proceeding.” (Carralejo Amended Further Decl., ¶ 3.)

As no formal judgment is being entered, attorney’s fees cannot be added to the non-existent judgment. Further, because a copy of the agreement was not provided to the court, it is not possible to determine whether an award of attorney fees would be appropriate simply because payment was made late. A late payment is not necessarily a “dispute or disagreement arising out of or in relation to the Agreement.”

To the extent that Plaintiff’s argument implies that the attorney fees should be awarded as a sanction against Pyramid, that would clearly be improper.

Having considered the moving and reply papers, as well as the accompanying declarations, the court is not satisfied that this is a situation where an award of attorney’s fees is warranted. Plaintiff did not meet his burden of showing that the agreement contemplated fees under these specific circumstances. As such, no attorney’s fees will be awarded.