Motion

Cal. Super. - 6th Dist.May 6, 2013

© 0 J O N L n B A W N N D N N N N N N N m e m e m e m e m e m p m e m e d ~ N O N A W N = O V 0 N N N N R W = O 28 Kelly Litigation Group PC KELLY LITIGATION GROUP, INC. Richard M. Kelly, Esq. SBN 154504 Michael Mengarelli, Esq. SBN 215000 3 Lagoon Drive, Suite 225 Redwood City, CA 94065 Telephone: (650) 591-2282 Facsimile: (650) 591-2292 Attorneys for Defendants, DENIS JORDAN, KATHLEEN JORDAN IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION LOIS C. MACASKILL, Trustee of the Lois C.| Case No.: 1-13-CV-245840 Macaskill Survivor’s Trust; and Trustee of the William P. Macaskill Exemption Trust, also DEFENDANTS’ NOTICE OF known as Lois C. Cerruti MOTION AND MOTION TO Plaintiff ENFORCE SETTLEMENT amnttt, AGREEMENT AND REQUEST FOR DISMISSAL VS. DENIS JORDAN, INDIVIDUALLY; KATHLEEN HUGHES JORDAN, Date: May 1, 2018 INDIVIDUALLY: and DOES ONE to TEN, | Lime: 9:00 am. inclusive, Dept. 13 Defendants. Judge: Hon. James L. Stoelker TO THE COURT, PLAINTIFF, AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, on May 1, 2018, or as soon thereafter as the matter may be heard in the above-referenced department of the Superior Court of California, County of Santa Clara, located at 191 N. First Street, San Jose, CA 95113, Defendants Denis Jordan and Kathleen Hughes Jordan will, and hereby do, move this Court for an order enforcing the terms of that certain settlement agreement, entered into by the parties on December 3, DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL 1 2014, and dismissing the action pursuant thereto. The Court has jurisdiction to hear this 2 motion under Code of Civil Procedure section 664.6. 3 Pursuant to the express terms of the settlement agreement, Defendants also seek 4 recovery ofattorney’s fees incurred in enforcing it. 5 This motion is based on this Notice, the accompanying Memorandum of Points and 6 Authorities, the accompanying declarations of Denis Jordan and Michael Mengarelli in ; support, the pleadings, files, and records of this action, and on any oral or other evidence q as may be presented at the hearing on this motion. ’ Dated: February 21, 2018 Kelly Litigation Group, Inc. 10 11 By: ON ’“ \ 12 Michael Mengarelli, Esq.; Attorneys for Defendants DENIS 13 JORDAN and KATHLEEN 14 HUGHES JORDAN 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fel LigatonGroup 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On December 3, 2014, Defendants and Plaintiff entered into a settlement agreement to resolve a case filed by Plaintiff alleging Defendants illegally removed a spillway attached to a pond on Plaintiff’s property. Pursuant to the terms of the agreement, Defendants were required to construct a new concrete overland release spillway, designed by Defendants’ engineers and approved by Plaintiff’s consultant. Defendants also agreed to pay Plaintiff $90,000. Defendants paid Plaintiff the settlement proceeds in January 2015 and completed the spillway and received County approval for the work on November 14, 2017. Plaintiff refuses to dismiss the case. II. FACTS In September 2010, Defendants began work to remove and fill in a failing, dilapidated concrete spillway located on their property. (See Declaration of Denis Jordan in Support of Defendants’ Motion to Enforce Settlement Agreement and Request for Dismissal (“Jordan Dec.”), at { 2.) The spillway was connected to a pond on Plaintiff’s property, which impounded water running downhill from a creek. (Jordan Dec., at | 3.) The spillway was at least 60 years old and dangerous; it was caving in at several locations, causing sinkholes to develop and undermining the foundation of an adjacent barn. (Jordan Dec., at 3.) In conjunction with other improvements to their property, Defendants wanted to remove the spillway and replace it with a new corrugated metal pipe (“CMP”) culvert that released overflow water along the traditional watercourse. (Jordan Dec., at 14.) Defendants contacted the County of Santa Clara Planning Department and were told they needed to obtain approval from the California Department of Fish and Game, which they did.! (Jordan Dec., at J 5.) Defendants then approached Plaintiff with their plan, showing her detailed drawings of the new, proposed culvert in its new location. (Jordan At the time, Defendants believed the County required only that they obtain approval from Fish and Game. Only later did the County assert thatit required a grading permit to perform the work. -3- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O Dec., at { 6.) They told her they had obtained all necessary approvals to remove and replace the existing spillway and specifically advised her that part of the new CMP they would install would encroach across the eastern berm of the pond and thus onto her property. She did not object. (Jordan Dec., at] 6.) However, on the morning of the last day of work, Plaintiff appeared and confronted Mr. Jordan, demanding that he stop filling in her spillway. Plaintiff called the sheriff, who responded and informed her that this was a civil matter. (Jordan Dec., at{ 7.) Thereafter, Plaintiff began contacting the County of Santa Clara Planning Department and members of the Board of Supervisors, intent on having the old spillway dug out and restored. In response, the County issued a Notice of Grading Violation and required Defendants to submit plans for a new overland release to replace the CMP culvert. (Jordan Dec., at | 8-9.) Defendants hired MH Engineering to design a new spillway and the plans were submitted to the County for approval. (Jordan Dec., at | 10.) Plaintiff, not content with working the back channels, then sued Defendants, alleging numerous causes of action, including elder abuse and intentional infliction of emotional distress. The case proceed through discovery and depositions and eventually settled near the eve of trial at the mandatory settlement conference. The parties, through their attorneys, drafted and executed a Settlement Agreement and Mutual Release (“SAMR”) that day, in court. Pursuant to the SAMR, Defendants promised to remove the CMP and install a new overland release following the specific scope of work created by Plaintiff’s consultant, Patrick Shires, and in accordance with the design by MH Engineering that had been submitted to the County. (See Declaration of Michael Mengarelli in Support of Defendants’ Motion to Enforce Settlement Agreement and Request for Dismissal (“Mengarelli Dec.”), at Ex. 1.) Defendants began work on the new spillway in the summer of 2016 and completed work by October 12, 2016. (Jordan Dec., at | 11.) On that day, Mitchell Thompson of the Santa Clara County Planning Department sent an email to Defendants stating he had “stopped by to look at the spillway and it looks great.” He then indicated that the grading violation could now be expunged. (Jordan Dec., at 12 & Ex. A.) 4- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O On October 25, 2016, counsel for Defendants sent an email to counsel for Plaintiff, Craig van Keulen, informing him that the County had approved all work on the new spillway and requesting that counsel enter a dismissal of the action pursuant to the terms of the SAMR. (Mengarelli Dec., at { 2 & Ex 2.) Mr. van Keulen responded that he would not be dismissing the case because he believed there was additional work to be done and the County needed to issue a “final sign off and acceptance of the work. Dec.,at {2 & Ex 2.) (Mengarelli Shortly thereafter, Defendants noticed that some of the rock outfall and ground cover has slipped during a recent rain storm, causing the overflow water to run away from the rip rap, which led to some erosion at the lip of the spillway. (Jordan Dec., at J 13.) Accordingly, Defendants engaged their engineers and a remedial plan was developed in June 2016, calling for the addition of an impermeable barrier between layers of rock and two steel pipes on the face of the spillway, slopped to direct the flow of water to the center of the rip-rap, and to fill the eroded void under the lip of the spillway. (Jordan Dec., at q 13.) Defendants had this plan reviewed by their soils engineer, who signed off on it. (Jordan Dec., at | 14 & Ex. B.) Defendants began the remedial work at the end of the summer and, on October 5, 2017, Defendants engineer sent a letter to Defendants and Mr. van Kuelen and his consultant certifying that the remedial work was complete in accordance with the plan. (Jordan Dec., at | 15, & Ex. C.) Thereafter, on November 8, 2017, counsel for Defendants sent an email to Mr. van Kuelen informing him that Defendants had received final approval from the County. (Mengarelli Dec., at | 4 & Ex. 2.) Mr. van Kuelen did not respond, so on November 14, 2017, counsel for Defendants sent another email, stating that the County had approved Defendants building site permit, which included the abatement of the grading violation, and requesting that he dismiss the case. (Mengarelli Dec., at { 5 Ex. 2.) Again, Mr. van Kuelen did not respond, so counsel made a third request on November 28, 2017. (Mengarelli Dec., at | 5 & Ex. 2.) This time, Mr. van Kuelen did respond, indicating he had not seen the corrective, as-built plans and report from Defendants’ engineer, despite the fact he had been copied on 5. DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O all correspondence related to the remedial work. Mr. van Kuelen requested a “file stamped submittal letter showing the filings of the as built plans, engineers [sic] reports and letters, with the County.” (Mengarelli Dec., at {{ 6-7 & Ex. 2.) Counsel for Defendants forwarded a copy of the certification letter and reminded Mr. van Kuelen that the County has signed off on this work. Nevertheless, Mr. van Kuelen reiterated his request for proof that the plans and certification letter had been made a part of the County file. (Mengarelli Dec., at |] 8-9 & Ex. 2.) On November 29, 2017, counsel for Defendants responded to Mr. van Kuelen. Counsel made clear that Defendants had complied with all terms and conditions of the SAMR and requested, once again, that Mr. van Kuelen dismiss the case. Counsel informed Mr. van Kuelen that, if the case was not dismissed, he would bring a motion to enforce the SAMR and seek sanctions. (Mengarelli Dec., at {| 10 & Ex. 2.) Mr. van Kuelen responded that he would consult with his engineer and “get back to you.” (Mengarelli Dec., at 11 & Ex. 2.) On December 15, 2017, counsel for Defendants wrote Mr. van Kuelen and asked if he had spoken with his consultant. (Mengarelli Dec., at 12 & Ex. 2.) Fourteen days later, Mr. van Kuelen responded. He stated that because his engineer was not present during any of the inspections, “and since Mr. Jordan also failed to obtain all the County inspections,” he preferred to wait another rainy season before dismissing. (Mengarelli Dec., at 13 & Ex. 2.) On January 12, 2018, counsel for Defendants notified Mr. van Kuelen that his clients had, in fact, obtained all necessary inspections and that Mr. van Kuelen and his consultant were copied on all correspondence related to the remedial work. Therefore, counsel reiterated, Mr. van Kuelen had no justification for delaying the dismissal. Counsel then proposed alternate hearing dates for a motion to enforce the SAMR. (Mengarelli Dec., at J 14 & Ex. 2.) Mr. van Kuelen replied and requested copies of the engineering certification and permit issued by the County. Mr. van Kuelen stated: “If you can get a clearer copyit[sic] the site approval document might answer the question I had. I just cannot read it. Please get a clearer copy and resend it so as to avoid what may be a waste of attorney and court -6- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O time and expense.” (Mengarelli Dec., at { 15 & Ex. 2.). Counsel for Defendants sent a clear copy of the permit card on January 12, 2018. (Mengarelli Dec., at | 16 & Ex. 2; Jordan Dec., at Ex. D.) Mr. van Kuelen did not respond thereafter. Instead, counsel for Defendants sent emails following up and requesting a dismissal on January 26, 2018, January 30, 2018, and February 12, 2018. To date, Mr. van Kuelen has ignored all of these emails. (Mengarelli Dec., at | 18 & Ex. 3.) III. LAW AND ARGUMENT The SAMRis a contract; therefore, this Court applies the well-established rules of contract interpretation to discern the meaning of it. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Thus, the SAMR must be interpreted “to give effect to the mutual intentions of the parties as it existed at the time” it was drafted. (Civ. Code, § 1636.) And, because the SAMR was reduced to writing, “the intention of the parties is . . ascertained from the writing alone.” (Civ. Code, § 1639.) Ordinary words and terms in the SAMR are to be given their usual and ordinary meaning (Civ. Code, § 1644), while the technical words “are to be interpreted as usually understood by persons in the profession or business to which they relate” (Civ. Code, § 1645). A. Defendants Have Fulfilled all Terms and Conditions of the SAMR. The SAMR required Defendants to install an overland release for Plaintiff’s pond, pursuant to a plan designed by Defendants’ engineer, MH Engineering. Defendants were to follow a detailed scope of work created by MH Engineering and Plaintiff’s consultant, Cotton, Shires and Associates. The work was to be approved by the County of Santa Clara and subject to inspection by Patrick Shires. Finally, the work was to be completed “as soon as is practicable.” (See Mengarelli Dec., Ex. 1, 2.2.1.) Defendants completed construction of the new spillway in October 2016. Then, after some damage caused by heavy rains, Defendants performed remedial work on the spillway, pursuant to plans devised by MH Engineering and approved by Defendants’ soils engineer and Mr. Shires. The remedial work was completed in November 2017, and Defendants received approval from the County for the work on November 14, 2017. The 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O SAMR imposes no additional requirements on Defendants with respect to the “Work”as it is defined in the SAMR. The SAMR also provided that Defendants pay Plaintiff $90,000 on or before January 3, 2015.2 (See Mengarelli Dec., Ex. 1, J 2.2.2.) Defendants made the payment before January 3, 2015. The SAMR also provided: “Upon payment as provided in paragraph 2.2.2 of this Agreement, Ms. Cerruti will dismiss with prejudice the Action, and agrees to never commence and/or prosecute any action based in whole or in part upon the claims, demands, causes of action, obligations, damages and/or liabilities released in this Agreement.” (Mengarelli Dec., Ex. 1, { 3.) Despite receiving her settlement payment more than three years ago, Plaintiff has not filed a dismissal. Instead, Mr. van Kuelen has steadfastly refused to file a dismissal, alleging conditions of approval that do not exist in the agreement itself. Of course, construction of the spillway was not a condition precedent to a dismissal. Rather, payment of the settlement proceeds was; and that was accomplished three years ago. Nevertheless, Defendants have completed all work on the spillway, as that term was defined in the SAMR and they have obtained all available approvals from the County. The County issued Defendants building permit, which itself abated the grading violation that started this whole case. Thus, Mr. van Kuelen’s continued requests for more information, or more documentation, or more inspections, have no basis in the SAMR or in the County’s approval process. They are unwarranted and arbitrary, and have no basis as grounds for refusing to dismiss this case pursuant to the SAMR. Plaintiff has no just cause to refuse to file a dismissal with prejudice, as provided for in the SAMR. Given her refusal, Defendants ask this Court to enforce the agreement and dismiss the action on its own authority. Or, alternatively, issue an order requiring Plaintiff to dismiss. 2 A typo in the SAMR put the date as January 3, 2014, but because the SAMR was executed on December 3, 2014,it is clear that the parties intended payment to be made 30 days after execution, on January 3, 2015. -8- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL Kelly Litigation Group APC © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O B. Defendants Are Entitled to Recover Their Attorney’s Fees Incurred to Enforce the SAMR. The SAMR provides, at paragraph 4: “The parties hereto acknowledge and agree that each of them will bear their own costs, expenses and attorneys’ fees arising out of or any way connected with the matters released herein. Notwithstanding, attorneys’ fees incurred to enforce the terms and conditions of this settlement shall be recoverable.” (Mengarelli Dec., Ex. 1, { 4 [emphasis added].) Defendants have repeatedly attempted to have Plaintiff dismiss this action, each time facing an objection from her attorney. Consequently, Defendants have engaged counsel and incurred attorney’s fees in an effort to enforce the final term not yet complied with: Plaintiff’s dismissal with prejudice. Defendants will have incurred a total of $7,711.50 in costs and attorney’s fees litigating the terms of the SAMR. (Mengarelli Dec., at Iq 20-28.) Pursuant to the SAMR, those fees are recoverable and should be awarded to Defendants. (Mengarelli Dec., Ex. 1,4.) IV. CONCLUSION It has been three years since Plaintiff received her settlement payment, which triggered her obligation under the SAMRto file a dismissal of the action. Defendants have worked diligently to construct the spillway, which was their obligation. Plaintiff has no excuse nor just cause to refuse to file a dismissal. Dated: February 21, 2018 Kelly Litigation Group, Inc. By: ac TA \ Michael Mengarelli, Esq.; Attorneys for Defendants DENIS JORDAN and KATHLEEN HUGHES JORDAN 9. DEFENDANTS’ NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DISMISSAL