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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Polly Coleman vs Thomas Coleman

Case No: 1384846
Hearing Date: Tue Jul 30, 2013 9:30

Nature of Proceedings: Motion Enforce Settlement

Motion to Enforce Settlement RULING: Defendant’s motion to enforce the settlement agreement is denied. Plaintiff is awarded reasonable attorney’s fees in the sum of $4,185.00. BACKGROUND: Plaintiff Polly Coleman and defendant Thomas Coleman were married in 1993. In 2011, plaintiff and defendant obtained a divorce. Pursuant to the terms of the property settlement agreement, defendant transferred all of his interest in a house in Montecito to plaintiff. Plaintiff claims that defendant misrepresented and concealed the condition of the house and on February 1, 2012, filed the present action to set aside the property settlement agreement. Defendant denies the allegations, but agreed to enter into settlement negotiations to resolve the dispute. The settlement negotiations culminated in a written settlement agreement in December 2012 that called for plaintiff and defendant to cooperate in prosecuting a construction defect action against the builder of the Montecito property and to share the litigation costs and expenses. Defendant contends that plaintiff has breached the settlement agreement and now moves for an order enforcing the agreement and for sanctions. ANALYSIS: The Court has the power to enforce a written settlement agreement. Code of Civil Procedure Section 664.6 provides: “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.” Section 664.6 provides a summary procedure by which the Court can enforce an agreement settling pending litigation without the need for a second lawsuit. Kirby v. Southern California Edison Company (2000) 78 Cal.App.4th 840, 843. Under the statute, the Court has the power to determine disputed factual issues that have arisen regarding the settlement agreement. Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566. The Court also has the power “to entertain challenges to the actual terms of the stipulation . . . and to interpret the terms and conditions of the settlement agreement.” Ibid. In addition, the Court may adjudicate whether the settlement was authorized by the parties, whether the settlement was intended to cover certain terms, or whether the documents as drafted and upon which the settlement was contingent are consistent with the settlement agreement. Ibid. In the case at bar, defendant claims that plaintiff has breached the settlement agreement in four ways. First, defendant contends that plaintiff has failed to pay her share of the costs of the construction defect litigation. Second, defendant contends that plaintiff has not cooperated in the prosecution of the construction defect case by cancelling her deposition. Third, defendant contends that plaintiff has failed to obtain a contract bid to repair the subject property. Fourth, defendant contends that plaintiff has hired new counsel in violation of the parties’ agreement to retain Kristine Mollenkopf to handle the construction defect case. The Court has reviewed the declarations submitted in support of and in opposition to defendant’s motion and does not find that plaintiff is in violation of the settlement agreement. The settlement agreement requires plaintiff and defendant to share the litigation costs in the construction defect case on an equal basis. (Thomas Coleman Dec., Ex. A, ¶3.) At the time of the settlement agreement, plaintiff had paid more than defendant towards the litigation costs and therefore defendant agreed to pay the next $90,179.77 in costs to bring the parties even. Once defendant paid that amount, the parties were to pay all future costs on a 50/50 basis. (Id., at ¶5.) Defendant claims that after he paid the $90,179.77 amount, plaintiff refused to pay her 50% share of the litigation costs and expenses. The evidence, however, does not support defendant’s contention. As of June 21, 2013, the date the instant motion was filed, the only outstanding invoice from Ms. Mollenkopf was her June 4, 2013, invoice in the amount of $12,922.76. (Thomas Coleman Dec., Ex. D.) The Court is at a loss to understand how plaintiff could have been behind in her obligation to Ms. Mollenkopf as of June 21, 2013, since Ms. Mollenkopf’s billing statement had only been sent out a little over two weeks earlier. Regardless, plaintiff has paid her share of the statement and is 100% current on her share of the litigation costs. (Polly Coleman Dec., ¶2.) Defendant next complains that plaintiff has failed to cooperate in the construction defect litigation because she cancelled her deposition set for June 12, 2013, for “personal reasons.” Again, however, the evidence does not support defendant’s claim. Plaintiff postponed her deposition because she needed to prepare for a Court hearing in a different case. (Polly Coleman Dec., ¶4.) Plaintiff’s attorney, Ms. Mollenkopf, advised defense counsel in the construction defect case that plaintiff was not available for deposition on June 12, 2013, but that she would be available on July 29, 30, or 31, 2013. (Ibid.) The decision to postpone plaintiff’s deposition was therefore perfectly reasonable, particularly since no trial date has been set in the case (Santa Barbara Superior Court Case No. 1413984) and the action is not even “at issue” because several parties have yet to be served. (Id., at ¶5.) Defendant also claims that the settlement agreement requires plaintiff and defendant to each obtain a contract bid to repair the Montecito house. Defendant says that he obtained a repair bid in March 2013, but that plaintiff has failed to obtain a bid. (Thomas Coleman Dec., ¶12.) While defendant is correct that the settlement agreement requires the parties to obtain repair bids, they are not required to obtain the bids at this time. The language in the settlement concerning repair bids says nothing about when plaintiff and defendant must obtain the bids. (Thomas Coleman Dec., Ex. A, ¶8.) Moreover, the parties clearly agreed to await the outcome of the construction defect case before starting construction. (Id., at ¶7.) It therefore makes little sense to require plaintiff to obtain a bid now, in the middle of the underlying litigation, when the construction based on that bid could be months or years away. Lastly, defendant claims that plaintiff has breached the settlement agreement by hiring her own attorney to represent her in the construction defect case. The Court disagrees. The settlement agreement merely states that plaintiff and defendant “have jointly retained” Ms. Mollenkopf to represent them in the litigation. The agreement does not state that plaintiff is precluded from hiring new counsel. (Thomas Coleman Dec., Ex. A, ¶2.) Indeed, if the agreement contained such a provision, it would be unenforceable under California law because a client has the absolute right to change attorneys. Code Civ. Proc. §284; see also, Scott v. Superior Court (1928) 205 Cal. 525, 527. Thus, the fact that plaintiff is considering hiring new counsel to represent her in the case is not a violation of the settlement agreement. For the reasons discussed above, defendant’s motion to enforce the settlement agreement is denied. Pursuant to paragraph 17 of the settlement agreement, plaintiff is awarded reasonable attorney’s fees in the sum of $4,185.00. These are the fees plaintiff incurred in opposing the motion. (Fields Dec., ¶3.)