CHARLES MAGDESIAN VS SHUNXING LIU

Tentative Rulings

Case Number: KC068514    Hearing Date: November 24, 2020    Dept: O

After hearing, the Motion for Enforcement of Settlement filed by Plaintiff Charles Magdesian, Trustee of the Charles and Catherine Magdesian Living Trust U/D/T dated October 19, 1991, is DENIED.

Plaintiff Charles Magdesian, Trustee of the Charles and Catherine Magdesian Living Trust U/D/T dated October 19, 1991 (“Plaintiff”), moves to enforce the settlement entered into with Richard Yu and Nancy Chen (collectively, the “Defendants”) pursuant to Code of Civil Procedure section 664.6:

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.

(CCP § 664.6.)

The agreement must be sufficiently definite to enable courts to give it an exact meaning. If an essential element is reserved for future agreement, it is not sufficiently definite. (See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-812.)

This matter concerns a lot split dispute concerning land all previously owned by Plaintiff. Defendants own the southern lot and Plaintiffs own the northern lot. Prior to purchasing the southern lot from the previous owners, Defendants were notified and agreed to purchase the southern lot with the understanding that as much as .7 acres would be made part of the northern lot when Plaintiff decided to develop the lot. Back in 2013 a tract map of the proposed .7 acres was finalized based on a survey (“2013 survey”). This was the map that Defendants agreed to when they purchased the southern lot and Plaintiff recorded an instrument that conveyed a .7-acre interest in the southern lot.

In order to resolve the issues concerning the 2013 survey and finalize the lot split, litigation ensued between the parties by which a Settlement Agreement and Mutual Release (“Agreement”) was signed on June 11, 2019. The Court has reviewed the Agreement and finds that while it has certain provisions that are a bit confusing, the Agreement as a whole is sufficiently definite and signed by Plaintiff and Defendants. (See Declaration of Charles Smith ¶ 2, Exhibit 1.) Paragraph 9 specifically provides that the parties agree that the Court shall retain jurisdiction over this action and the Agreement pursuant to section 664.6 and that the aggrieved party shall be entitled to recover costs from the breaching party.

The Agreement, in relevant part, provides that:

(1) Plaintiff agrees to use all reasonable efforts and diligence to complete the Lot Split Subdivision Process (Agreement ¶ 3);

(2) Plaintiff agrees to use reasonable efforts and diligence to obtain an updated survey within 30 days of the execution of the Agreement (id.);

(3) Defendants shall have 10 business days from receipt of all necessary documents to authorize transfer of the Subject Area [.7 acres] from the Subject Property [southern lot] into the adjacent land, to effect the lot split, or to communicate any issues relating to the Lot Split or Lot Split Process, and the time period for Defendants to sign the Documents shall be extended 30 days to facilitate resolving the issues in good faith (id. ¶4 (emphasis added));

(4) The parties shall work jointly, in good faith, to resolve any issues concerning the Lot Split and Lot Split Process, including the contents of any documents relating thereto (id.);

(5) Defendants shall not be required to sign any document which causes any financial obligation to the Defendants relating to the Lot Split or Lot Split Process, or adversely impacts or infringes upon the Subject Property as it concerns set-back of existing walls, structures or improvements on the Subject Property (id. ¶ 4.4); and

(6) Upon recording of the newly created lot through the Lot Split, the action shall be dismissed with prejudice, and no later than 5 days after the execution of the Lot Split, Plaintiff shall prepare and record a Notice of Withdrawal of Notice of Pendency concerning the Subject Property. (Id. ¶ 5.)

Plaintiff contends that Defendants did not effectuate the Lot Split within the required10 business days timeframe as set forth in the Agreement. Defendants contend that they were unable to authorize the transfer because they did not receive “all necessary documents” by Plaintiff and because of the provision in the Agreement that permits Defendants the right to not sign any document which would cause Defendants any financial obligation (i.e., the signing of the documents to effectuate the Lot Split would cause Defendants to incur a financial obligation) or if it adversely impacted or infringed upon the southern lot. (Id. ¶ 4.4.) In fact, Plaintiff did not disclose the updated survey referenced in the Agreement until January 2020 (“2020 survey”).

More important to this Court’s analysis than the timing requirements is the substantive changes between the 2013 survey recorded by Plaintiff and the updated 2020 survey. Defendants present evidence of a civil engineer, Ronald Koester, who reviewed the 2013 and 2020 surveys and determined the following:

(1) The 2020 survey provides an additional 4,984 square feet of the southern lot to be made part of the northern lot. (See Declaration of Ronald Koester, ¶ 5.)

(2) The 2020 survey dips further south into the southern lot between 16 and 36 feet along the border between the southern and northern lot. (Id.)

(3) The 2020 reduces the set-back requirements by approximately 16 feet between the two parties because of the existing structure on the southern lot.

Plaintiff failed to rebut the evidence provided by Mr. Koester or provide evidence in support of enforcement of the Agreement.

The Court finds that the 2020 survey, which is referred to in paragraph 3 of the Agreement, materially alters the Agreement concerning the previously recorded transfer of .7 acres from the southern lot to the northern lot and, therefore, Defendants are not compelled to sign the modification agreement mandated by the City of Diamond Bar to finalize the lot split. Therefore, Plaintiff’s motion to enforce the Agreement will be DENIED without prejudice.

Case Number: KC068514    Hearing Date: October 07, 2020    Dept: O

Case Number: KC068514    Hearing Date: November 26, 2019    Dept: O

Plaintiff Charles Magdesian’s motion for enforcement of settlement agreement is GRANTED.

Plaintiff Charles Magdesian (“Plaintiff”) moves to enforce settlement pursuant to Code of Civil Procedure section 664.6:

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.

(CCP § 664.6.) The agreement must be sufficiently definite to enable courts to give it an exact meaning. If an essential element is reserved for future agreement, it is not sufficiently definite. (See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-812.)

The Court finds that the settlement agreement (“Agreement”) is sufficiently definite and signed by Plaintiff and Defendants Richard Chen and Nancy Yu (“Defendants”). (See Declaration of Charles Smith (“Smith Decl.”) ¶ 2, Exhibit (“Exh.”) 1.) Paragraph 9 specifically provides that the parties agree that the Court shall retain jurisdiction over this action and the Agreement pursuant to section 664.6 and that the aggrieved party shall be entitled to recover costs from the breaching party.

The Agreement provides in relevant part that:

1. Plaintiff agrees to use all reasonable efforts and diligence to complete the Lot Split Subdivision Process;

2. Defendants shall have 10 business days from receipt of all necessary documents to authorize transfer of the Subject Area from the Subject Property into the adjacent land, to effect the lot split, or to communicate any issues relating to the Lot Split or Lot Split Process, and the time period for Defendants to sign the Documents shall be extended 30 days to facilitate resolving the issues in good faith;

3. The parties may agree in writing to extend this time period further;

4. The parties shall work jointly, in good faith, to resolve any issues concerning the Lot Split and Lot Split Process, including the contents of any documents relating thereto;

5. Defendants shall not be required to sign any document which causes any financial obligation to the Defendants relating to the Lot Split or Lot Split Process, or adversely impacts or infringes upon the Subject Property as it concerns set-back of existing walls, structures or improvements on the Subject Property; and

6. Upon recording of the newly created lot through the Lot Split, the action shall be dismissed with prejudice, and no later than 5 days after the execution of the Lot Split, Plaintiff shall prepare and record a Notice of Withdrawal of Notice of Pendency concerning the Subject Property.

Plaintiff contends that Defendants have not effectuated the Lot Split within the 10 business days timeframe set out in the Agreement. Defendants contend that they are unable to do so because of a conflicting provision in the Agreement that permits Defendants the right to not sign any document which would cause Defendants any financial obligation (i.e., the signing of the documents to effectuate the Lot Split would cause Defendants to incur a financial obligation), and that Defendants have communicated this concern to Plaintiff. Furthermore, Defendants contend that Plaintiff took several months to finally prepare and record a Notice of Withdrawal of Notice of Pendency concerning the Subject Property instead of 5 days as required by the Agreement. Particularly, Plaintiff had not even done so when he filed this Motion.

While the Court agrees with Defendants’ concerns of Plaintiff in bringing a motion to enforce the Agreement when Plaintiff has not abided by certain provisions of the Agreement either, the Court notes that Defendants only first raised issues concerning the Lot Split Process on or about September 26, 2019, which was only several days after this motion was filed. (See Declaration of Kevin Kay ¶ 2.) Defendants have not presented any evidence that they had attempted to communicate to Plaintiff their concerns regarding the Lot Split Process within the 10-business day timeframe required by the Agreement. Nor did Defendants demonstrate that they attempted to extend the deadline to communicate their concerns regarding the Lot Spilt. Plaintiff also demonstrated that his counsel had reached out to Defendants’ counsels multiple times after the documents were sent to Defendants (which Defendants’ counsel does not refute at any point in declaration nor offer any good explanation as to why he ignored Plaintiff’s counsel), and none of those communications were ever addressed until after this motion was filed. (Smith Decl., ¶ 4, Exh. 3.)

The Court finds that the Settlement Agreement is a complete recitation of the material terms of the parties, signed by the parties, and subject to enforcement pursuant to Code of Civil Procedure section 664.6. Accordingly, the motion is GRANTED. Plaintiff is entitled to recover his costs associated with bringing this motion in the sum of $3,060.00.