MOTION TO ENFORCE SETTLEMENT (Judge Kenneth R. Freeman)

Case Number:?BC472069????Hearing Date:?February 06, 2018????Dept:?310

ZERBO v. KB HOME, ET AL.

MOTION TO ENFORCE SETTLEMENT BETWEEN KB HOME GREATER LOS ANGELES, INC. AND PETERSEN-DEAN, INC.

TENTATIVE RULING

??????????? Grant motion to enforce settlement and grant request for fees and costs in the total amount of $2,257.75

DISCUSSION

1. Background

??????????? In this construction defect litigation, Plaintiffs, a group of homeowners of properties in various developments in Lancaster, California, allege various defects in the construction of their residences against Defendant KB Home, the developer and general contractor of the homes.? Plaintiffs allege claims for strict products liability, strict products liability (component products), violation of building standards set forth in Civil Code ?896, breach of implied warranty of merchantability, breach of contract, negligence, and breach of express warranty.? The Plaintiffs have settled their claims with KB Home.

KB Home, in turn, filed a cross-complaint against the subcontractors who performed work on the project, alleging various claims for indemnity, breach of express and implied warranty, and breach of written contract.? KB Home also seeks declaratory relief as to the duties to defend and to indemnify.

KB Home entered into a settlement with one of the subcontractors, Petersen-Dean, Inc., in the amount of $65,000, following two mediations and five settlement conferences.? According to KB Home, the settlement agreement required the $65,000 sum to be paid in nine (9) installment payments, with $5,000 due on May 1, 2017, and $7,500 due the first of each subsequent month (through and including January 1, 2018).? KB Home states that Petersen-Dean has not paid any of this amount.? KB Home seeks entry of judgment in the amount of $65,000 against Petersen-Dean in favor of KB Home, pursuant to the terms of the settlement agreement.? KB Home further requests the Court order Petersen-Dean to pay KB Home?s attorneys? fees and costs related to the motion and the necessary enforcement of the agreement.

1. Motion to enforce settlement

Through this motion, KB Home seeks an order enforcing the terms of the settlement between subcontractor Petersen-Dean and itself.

CCP ? 664.6 provides as follows:

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.

Moreover, Code of Civil Procedure ?664.7 provides:

Notwithstanding 664.6, if parties to a pending construction defect action stipulate personally … 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 a motion may enter a judgment pursuant to the terms of the settlement agreement. 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.

??????????? Here, as set forth above, the parties entered into a settlement (wherein payment was to be phased) in the total amount of $65,000.? Petersen-Dean has failed to pay any amount (phased or otherwise) pursuant to the specific terms of the April 7, 2017 settlement agreement.? Petersen-Dean has not even disputed in its opposition that it is in breach of the settlement agreement.? The settlement agreement itself provides that the Court ?shall retain jurisdiction over the action pursuant to Code of Civil Procedure section 664.6 to enforce the Agreement until all terms of the Agreement are performed in full.”? [Agreement, ?3(c).]? Since Petersen-Dean is in default off the agreement, the Court has the authority to enforce the settlement and enter judgment on the terms of the agreement.? The Court does so here and grant the motion.

The only dispute Petersen-Dean has, however, is with the request for $2,257.75 in fees and costs incurred by KB Home in bringing the motion.? The settlement agreement, as noted above, states:

?5.10 ATTORNEYS’ FEES

Should any action be taken to enforce this AGREEMENT the prevailing parties shall be entitled to the reasonable attorney fees incurred in enforcing this AGREEMENT.

??????????? KB Home has broken down its fees and costs in bringing the instant motion, as follows:

??????????? Notwithstanding Petersen-Dean?s arguments to the contrary, the hours claimed are reasonable ? a total of 8.5 hours for preparing the motion, preparing the opposition, reviewing the reply, and appearing at the hearing.? The $205 hourly fee is also reasonable.? The agreement specifically permits KB Home to move for fees to enforce the agreement.? But for Petersen-Dean?s failure to comply with the settlement terms, KB Home would be entitled to no fees.? Clearly, though, KB Home had to bring this motion in order to enforce the settlement (and it was only after KB Home wrote meet-and-confer letters did it file the motion).? As such, the motion for fees and costs in the total amount of $2,257.75 is reasonable (a determination for the Court, pursuant to?PLCM Group v. Drexler?(2000) 22 Cal.4^th?1084, 1096), and the request is granted.

The Court is not persuaded by Petersen-Dean?s counsel?s argument that no fees are warranted because KB Home?s counsel ?is devoid of any explanation or foundation as to why this rate should be reasonable for the work already formed.?? [Opposition at 2:24-25.]? Counsel has given a basis for the hours claimed at ?20.? Moreover the $205 claimed hourly rate is lower than the customary hourly rates in Los Angeles.