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Sarah A. Ornelas, Esq., SBN. 258890
BORTON PETRINI, LLP
201 Needham Street
Modesto, California 95354
Telephone (209) 576-1701
Facsimile (209) 527-9753
sornelas@bortonpetrini.com
Attorneys for Defendants, xxxx xxxxx and xxxxxxx R. xxxxx,
AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
PAUL GRIGORIEFF and MARIA | Case No. 17CIV02353
GRIGORIEFF,
DEFENDANTS/CROSS-COMPLAINANTS
Plaintiffs, xxxx xxxxx AND xxxxxxx R. xxxxx,
Vv.
xxxx xxxxx and COLEEN R. xxxxx, AS
TRUSTEES OF THE xxxxx 1997 FAMILY
TRUST UNDER DECLARATION OF TRUST
DATED 2/6/1997, FIRST AMENDMENT AND
RESTATEMENT 6/12/2009, AND DOES 1
THROUGH AND INCLUDING 10,
Defendants.
xxxx xxxxx and xxxxxxx R. xxxxx, as
Trustees of the xxxxx 1997, First Amendment and
Restatement 6/12/2009,
Cross-Complainants,
ve
PAUL GRIGORIEFF and MARIA
GRIGORIEFF, and ROES 1 THROUGH AND
INCLUDING 10,
Cross-Defendants.
AS TRUSTEES OF THE xxxxx 1997
FAMILY TRUST’S NOTICE AND MOTION
TO ENFORCE SETTLEMENT PURSUANT
TO CCP 664.6 AND TO DISMISS THE
ACTION WITH PREJUDICE;
MEMORANDUM IN SUPPORT THEREOF;
DECLARATION OF SARAH A. ORNELAS
Date: May 2, 2023
Time: 2:00 p.m.
Depart: 4
Location: Courtroom G
DEFENDANTS/CROSS-COMPLAINANTS xxxx xxxxx AND xxxxxxx R. xxxxx, AS
TRUSTEES OF THE xxxxx 1997 FAMILY TRUST’S NOTICE AND MOTION TO ENFORCE
SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS
DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTN
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TO ALL PARTIES THROUGH AND BY THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on the above date, time and department of the San Mateo
County Superior Court, Defendants/Cross-Complainants xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the
xxxxx 1997 Family Trust (collectively “Defendants”) will move the Court for an order as follows:
1. To enforce the parties’ Settlement Agreement, as set forth in the signed Memorandum
of Understanding dated October 4, 2022 pursuant to California Code of Civil Procedure
§ 664.6;
2. For a dismissal of this Action, with prejudice, pursuant to California Rules of Court
3.1385 and California Code of Civil Procedure §583.310 and 3.1385(c)(2).
3. Sanctions in the amount of $1059.00 are requested pursuant to California Rules of
Court Rule 2.30(b), due to Plaintiffs’ blatant refusal to company with the terms of
settlement agreement as set forth in the Memorandum of Understanding (dated:
October 4, 2022), thereby causing the unnecessary filing of the forgoing Motion.
The hearing for this motion will take place May 2, 2023, at the Superior Court of California,
County of San Mateo located at 800 North Humboldt, San Mateo, CA 94401.
This Motion is based upon this Notice and Motion, the Memorandum of Points and
Authorities, the Declaration of Sarah A. Ornelas, and the court’s complete files and records in this action.
The Court utilizes a tentative ruling system. A tentative ruling on any law and motion
matter may be obtained by telephoning (650) 261-5019, after 3:00 p.m. on the first court day immediately
preceding the hearing on the motion or by accessing the court’s website at
http://www.sanmateocourt.org/director.php?filename=./lawmotion/alltentrules.php
Parties intending to appear on the matter shall notify the Law and Motion Department or
the department hearing the case and state their intent to appear. Parties shall follow the instructions as
directed on the telephone Tentative Ruling notification message or on the Court’s website.
DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28
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Dated: March (@ , 2023 BORTON PETRINI, LLP
arah A> pn
Attorneys efendants,
xxxx xxxxx and xxxxxxx R. xxxxx, AS
-TRUS' OF THE xxxxx 1997 FAMILY
TRUST
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT
PURSUANT TO CCP 664.6 AND TO DISMISS
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves disputes amongst neighbors.
The xxxxx 1997 Family Trust owns a single-family residence located at 392 Greenbriar
Road in the City of Half Moon Bay. xxxx and xxxxxxx xxxxx are the trustees of the Trust. The property is
located within the Ocean Colony subdivision and subject to the jurisdiction of the Ocean Colony Owners
Association.
Plaintiffs PAUL GRIGORIEFF and MARIA GRIGORIEFF (“Plaintiffs”) are the owners
of the adjacent property known as 2001 Winged Foot Road. Plaintiffs purchased the property in or around
June 1, 2012.
Plaintiffs and Defendants are next door neighbors. After living in their property for years,
Plaintiffs became upset with certain improvements that were made by Defendants (despite said
improvements being made years before Plaintiffs acquired their Property and/or being made with the
permission of the prior owner of the Winged Foot Road property).
On May 30, 2017, Plaintiffs filed their Complaint in the San Mateo County Superior Court
alleging three causes of action — Trespass, Wrongful Discharge of Surface Water and Private Nuisance.
Plaintiffs named xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust as Defendants.
Plaintiffs did not (and have not) sued xxxx xxxxx and/or xxxxxxx xxxxx in any individual capacity.
On May 15, 2019, Plaintiffs filed an Amended Complaint with this Court. This time
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Plaintiffs only brought two causes of action — Trespass and Private Nuisance. This Amended Complaint
is the operative Complaint for the purposes of this action.
After a third Mandatory Settlement Conference, the parties were able to reach a settlement
in this matter on October 4, 2022. See Declaration of Sarah A. Ornelas (“SAO DEC”) § 2. The settlement
was reached late in the afternoon, so the parties did not have the time to draft a full Mutual General Release
and Settlement Agreement. Therefore, the parties jointly prepared and signed a Memorandum of
Understanding dated October 4, 2022. See SAO DEC {3 and Exhibits A and B.
Work on the subject properties has been completed by both sides pursuant to the terms of
the Memorandum of Understanding. Defendants have removed the concrete pad section and other items
that they agreed to remove, and Plaintiffs have rebuilt the retaining wall. However, a Mutual General
Release and Settlement Agreement has not been finalized. See SAO DEC {[ 4 and Exhibit C.
The Memorandum of Understanding provided (in part) the following:
10. The parties will further solidify the terms of this agreement by preparation and
execution of a Mutual General Release and Settlement Agreement, which will
contain a full release of all claims that have been brought ar could have been
brought in this action.
Pursuant to paragraph 10 (above), a draft “Mutual General Release and Settlement Agreement” (“Mutual
Release”) was prepared and the parties went back and forth multiple times trying to finalize the terms of
the Mutual Release. See SAO DEC [5 and Exhibit D. On December 14, 2022, Plaintiffs counsel sent
an additional version of the Mutual Release with further proposed changes. See SAO DEC [6 and Exhibit
E. On December 15, 2022, Plaintiffs’ counsel and defense counsel had a lengthy telephone conversation
to try to solidify the terms and finally agree on the terms. After that lengthy telephone conversation,
defense counsel sent a detailed email to Plaintiffs counsel with an additional version of the Mutual
Release for Plaintiffs review and comment. See SAO DEC 47 and Exhibit F.
Defense counsel followed up regarding the status of the Mutual Release on multiple times
including via email on December 20, December 22 and January 4. See SAO DEC 4 8 and Exhibit G.
Counsel also spoke on January 9, 2023 regarding the to obtain a finalized and executed Mutual Release
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so that the parties can get this matter dismissed with the Court. No further communications from
Plaintiffs’ counsel were received during the Motion of January. A final meet and confer letter was sent to
Plaintiffs’ counsel on February 9, 2023. See SAO DEC 4 9 and Exhibit H.
A. The Court has Authority to Enforce the Parties Settlement Agreement Pursuant to
California Code of Civil Procedure § 664.6
In the Memorandum of Understanding, the Parties agreed that the Court would retain
jurisdiction over this matter pursuant to California Code of Civil Procedure §664.6. CCP §664.6 provides
in relevant part:
(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.
[Emphasis added].
Pursuant to the terms of the Memorandum of Understanding, Defendants request that this
Court issue a Judgment that contains a mutual release of liability for claims against the Parties.
Specifically, the various version of the General Mutual Release and Settlement Agreement has contained
the following release language, which moving parties understand that all parties have agreed to:
1. Release. Each party does hereby generally and specifically release, discharge and acquit
each other and their officers, employees, agents, accountants, attorneys, shareholders, successors,
servants, representatives, guarantors, indemnitors, insurers, Trumbull Insurance Company, Hartford
Insurance and/or related entities of Hartford Insurance (the insurance carrier for the xxxxx), assigns,
executors, spouses, heirs and each of them, from any and all claims, demands, liabilities, actions, causes
of action, damages, expenses, obligations, arising out of or in any way related to claims set forth in the
LITIGATION and/or that could have been brought in this LITIGATION; including but not limited to
attorney's fees, accountant's fees, and any and all fees or costs associated with the subject claims and
defenses of every nature, character or description whatsoever, whether known or unknown, suspected or
unsuspected, or claims arising out of the Litigation, including claims for nuisance, trespass, negligence,
violations of the CCR&Rs, violations of the California Coastal Act, violations of the Davis-Sterling Act,
breach of contract claims, breach of equitable servitude claims or the issues and facts of the pleadings
therein.
Each of the undersigned parties hereby releases and forever discharges each other party to this
Mutual General Release and Settlement Agreement, and any and all persons connected with them, of and
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from any and all claims, demands, actions or causes of action arising out of, or in any way connected with,
or relating to any activities with concerning or related to any construction, landscaping, hardscape in the
rear or side yard of the xxxxx’ home or the Grigorieffs’ retaining wall. Notwithstanding anything in this
AGREEMENT to the contrary, the PARTIES agree and stipulate that this AGREEMENT in no way
affects or alters the rights of any future owners of 2101 Winged Foot Road, Half Moon Bay, California or
392 Greenbriar Road, Half Moon Bay, California. This release does not include “future owners” or
entities in which any of the Parties maintains a financial interest.
Notwithstanding anything contrary in this Agreement, nothing in this Agreement shall affect any
claims, demands, liabilities, actions, causes of action, damages, expenses, or obligations arising out of
claims concerning any Future Violation(s) of the CC&Rs of Ocean Colony, the Municipal Code of the
City of Half Moon Bay, CA, the Davis-Sterling Act, and/or the California Coastal Act, i.e., any violation/s
which commenced after the date this Agreement was executed. For purposes of this agreement, the term
"Future Violations” relate to any work completed or conditions that arise on the properties located 2101
Winged Foot Road, Half Moon Bay, California or 392 Greenbriar Road, Half Moon Bay, California after
the execution of this Agreement and after the completion of the work required under this Agreement.
Defendants also move for the Court to enter any further orders in the Judgment pursuant to
the terms of the Mutual Release, to the extent that the Court finds that the parties have agreed to such
terms. In re Marriage of Assemi (Cal. 1994) 7 Cal. 4" 896, 30 Cal. Rptr. 2d 265.
B. The Court Must Dismiss This Action Pursuant to California Code of Civil Procedure §
583.310
As more fully described above, this case has been settled and work completed pursuant to
the agreement has been completed by both sides. However, the Mutual General Release and Settlement
Agreement has not been finalized/signed by the Parties.
Dismissal of this action is also required pursuant to California Code of Civil Procedure
§583.310. Suit was originally filed on May 30, 2017. The five year period was set to expire on May 30,
2022. Counsel stipulated to extend the five-year rule by six months (until November 30, 2022). There
was no further agreed upon extension of the rule. See SAO DEC 410. Therefore, the dismissal is required
pursuant to California Code of Civil Procedure §583.310. See Code Civ. Proc. §583.310; See Andersen v
Superior Court (1921) 187 Cal. 95, 97; Fannin Corp v Superior Court (1974) 36 Cal. App. 3d 745, 749).
Ad
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C. By the Time the Court Considers this Motions, Dismissal will be Required Pursuant to
California Rules of Court Rule 3.1385(c)(2)
As more fully described above, this case has been settled and work pursuant to the
Settlement Agreement has been completed. Plaintiffs’ counsel filed a Notice of Conditional Settlement
with this Court stating that the Request for Dismissal would be filed on or before March 7, 2023. By the
time of the hearing on this Motion on May 2, 2023, it will be fifty-six (56) days since March 7, 2023. See
SAO DEC 410 and Exhibit I.
California Rules of Court Rule 3.1385(c)(2) provides:
If the plaintiff or other party required to serve and file a request for dismissal within 45
days after the dismissal date specified in the notice does not do so, the court must dismiss
the entire case unless good cause is shown why the case should not be dismissed.
Emphasis in the original.
D. Sanctions Should be Awarded Due to Plaintiffs’ Bad Faith in Requiring the Defendants
to File This Motion
This Motion should not need to be filed. The parties reached a settlement, performed work
pursuant to the settlement and just need to finalize the Mutual Release so that the Dismissal can be filed
with the Court. Defense counsel has attempted to meet and confer on this issue multiple times with
Plaintiffs’ counsel and will continue to try to meet and confer with opposing counsel prior to the Court’s
hearing on this Motion. The actions of the Plaintiffs’ have forced the Defendants to file this Motion,
which should never have been needed.
California Rules of Court Rule 2.30(b) provides:
In addition to any other sanctions permitted by law, the court may order a person, after
written notice and an opportunity to be heard, to pay reasonable monetary sanctions to
the court or an aggrieved person, or both, for failure without good cause to comply with
the applicable rules. For the purposes of this rule, "person" means a party, a party's
attorney, a witness, and an insurer or any other individual or entity whose consent is
necessary for the disposition of the case. If a failure to comply with an applicable rule
is the responsibility of counsel and not of the party, any penalty must be imposed on
counsel and must not adversely affect the party's cause of action or defense thereto.
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Plaintiffs’ have violated the terms of this Agreement and failed to file the necessary
dismissals within the timeframe agreed upon by the Parties.
Despite numerous meet and confer efforts to attempt to resolve this matter without the need
for Court involvement, Plaintiffs and/or Plaintiffs counsel continued to refuse to finalize the Mutual
Release and dismiss this action. Defendants have been unable to get any response from the Plaintiff’s to
the last version of the Settlement Agreement. Thus, Plaintiffs’ actions are not in good-faith and have
required Defendants to incur costs and fees in the amount of $1059.00, in bringing this Motion, See SAO
DEC (11.
Wl. CONCLUSION
Based on the forgoing, Defendants/Cross-Complainants xxxx xxxxx and xxxxxxx xxxxx, as
Trustees of the xxxxx 1997 Family Trust request that the Court enter a Judgment with a mutual release of
all claims against the Parties, dismiss this action with prejudice and award Defendants $1059.00 in
sanctions against Plaintiffs due to their failure to comply with the California Rules of Court.
Dated: March Le , 2023 BORTON PETRINI, LLP
DECLARATION OF SARAH ORNELAS
I, Sarah A. Ornelas, declare:
1. Iam an attorney at law duly licensed to practice before all courts in the State of California.
I am a partner at Borton Petrini, LLP, attorneys of record for Defendants/Cross-Complainants xxxx xxxxx
and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust (collectively “Defendants”) herein. If called
DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28
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upon as a witness, I can and will competently testify to the following from my own personal knowledge.
2. After a third Mandatory Settlement Conference, the parties were able to reach a settlement
in this matter on October 4, 2022.
3. The settlement was reached late in the afternoon, so the parties did not have the time to
draft a full Mutual General Release and Settlement Agreement. Therefore, the parties jointly prepared
and signed a Memorandum of Understanding dated October 4, 2022. A true and accurate copy of the
signed Memorandum of Understanding is attached hereto as Exhibit A. The Memorandum of
Understanding was conveyed to the Court via email by the parties on October 4, 2022. True and accurate
copies of the applicable emails have been attached hereto as Exhibit B.
4, Work on the subject properties has been completed by both sides pursuant to the terms of
the Memorandum of Understanding. Defendants have removed the concrete pad section and other items
that they agreed to remove, and Plaintiffs have rebuilt the retaining wall. Photographs of the completed
work have been attached hereto as Exhibit C. Despite work being completed by both sides, the Mutual
General Release and Settlement Agreement has not been finalized.
5h Pursuant to paragraph 10 of the Memorandum of Understanding, a draft “Mutual General
Release and Settlement Agreement” (“Mutual Release”) was prepared and the parties went back and forth
multiple times trying to finalize the terms of the Mutual Release. A copy of some of the emails back and
forth between counsel trying to negotiate the terms of the Mutual Release have been jointly annexed hereto
as Exhibit D.
6. On December 14, 2022, Plaintiff's (Brian Newcomb) counsel sent an additional version of
the Mutual Release with further proposed changes. A true and accurate copy of this email (with
attachment) is attached hereto as Exhibit E.
7. On December 15, 2022, Plaintiffs’ counsel and I had a lengthy telephone conversation to
try to solidify the terms and finally agree on the terms. Our intent was to be able to finalize the final
pending issues that our clients had with the last versions of the Mutual Release. After that lengthy
telephone conversation, I sent a detailed email to Plaintiff's counsel with an additional version of the
Mutual Release for Plaintiff's review and comment. A true and accurate copy of this email (with
attachment) is attached hereto as Exhibit F.
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8. I followed up regarding the status of the Mutual Release on multiple times including via
email on December 20, December 22 and January 4. A copy of my emails to Brian Newcomb have been
attached hereto collectively as Exhibit G.
9. Brian Newcomb and | also spoke on January 9, 2023 regarding the need to obtain a
finalized and executed Mutual Release so that the parties can get this matter dismissed with the Court.
Mr. Newcomb indicated that he would speak with his clients and get back to me as to the last version of
the Mutual Release. No further communications from Plaintiffs’ counsel were received during the Motion
of January. A final meet and confer letter was sent to Plaintiffs’ counsel on February 9, 2023. A true and
accurate copy of this meet and confer email is attached hereto as Exhibit H.
10. Suit was originally filed on May 30, 2017. The five year period was set to expire on May
30, 2022. Counsel stipulated to extend the five-year rule by six months (until November 30, 2022). There
was no further agreed upon extension of the rule. A copy of the Notice of Conditional Settlement has
been attached hereto as Exhibit I.
11. Defendants have incurred attorneys’ fees in the amount of $999.00 (5.4 hours) to meet and
confer, research the statutory basis for this Motion and filing this Motion. It is anticipated that counsel
will spend an additional hour to prepare and argue this Motion. Defendants have also incurred $60.00 in
costs in the filing of this Motion. Therefore, Defendants seek sanctions in the total amount of $1059.00.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this ( Q day of March 2023,,at Modesto, California.
Po
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PROOF OF SERVICE (Code Civ. Proc., §§ 1013a)
STATE OF CALIFORNIA, COUNTY OF STANISLAUS
I am employed in the County of Stanislaus, State of California. I am over the age of 18 and not a
party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street, Modesto,
California 95354.
On March 7 ; 2022, I served the foregoing document described as
DEFENDANTS/CROSS-COMPLAINANTS xxxx xxxxx AND xxxxxxx R. xxxxx, AS
TRUSTEES OF THE xxxxx 1997 FAMILY TRUST’S NOTICE AND MOTION TO ENFORCE
SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS THE ACTION WITH
PREJUDICE; MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF SARAH A.
ORNELAS on the other parties in this action by placing the true copies thereof enclosed in sealed
envelopes addressed as stated on the attached mailing list.
SEE ATTACHED SERVICE LIST
[By MAIL: As follows: Iam "readily familiar" with the firm's practice of collection and processin;
correspondence for mailing with the United States Postal Service. Under that practice the envelope would
be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Modesto,
California in the ordinary course of business.
Tl BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed
above. The facsimile machine I used complied with California Rules of Court, Rule 2.301 and no
error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306.
T BY OVERNIGHT COURIER SERVICE: I caused each envelope with postage fully prepaid to
be sent by overnight.
B BY PERSONAL SERVICE: Pursuant to C.C.P. Section 1011, I caused to be delivered such
envelope by hand to the offices of the addressee(s) listed on the attached mailing list.
ee BY EMAIL OR ELECTRONIC FILING/SERVICE - Based upon a court order, local Rules of
Court, or an agreement of the parties to accept service by e-mail or electronic transmission, I
caused the documents to be sent/electronically served to the persons at the e-mail addresses listed.
(C.CP. § 1010.6 and CRC § 2.251)
T FEDERAL: I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
Executed on March he , 2023, at Modesto, California.
Michael Worsham AA AL
Signature
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DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTn
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ATTORNEY FOR PLAINTIFF
Brian W. Newcomb, Esq.
Attorney at Law
770 Menlo Avenue, Suite 101
Menlo Park, CA 94015
Ph: (650) 322-7780
Fax (650) 322-7740
brianwnewcomb@gmail.com
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DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTEXHIBIT AMEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding is made and entered into this 4th day
of October 2022, by and between Paul Grigorieff and Maria Grigorieff (hereinafter
"Plaintiffs" or “Grigorieffs”), xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx' 1997
Family Trust (hereinafter "Defendants" or “xxxxx”). GRIGORIEFFS and xxxxx may be
collectively referred to herein as the “Parties.”
The parties have reached a settlement agreement in this matter of Paul
Grigorieff and Maria Grigorieff vs. xxxx xxxxx and xxxxxxx xxxxx as Trustees of The xxxxx’
1997 Family Trust, San Mateo Superior Court, CASE No. 17CIV02353 and this
Memorandum of Understanding sets forth the major terms of said settlement agreement.
This Agreement will be further solidified by the signing of a Mutual General Release and
Settlement Agreement, which will be finalized and signed by the parties after execution
of this documents.
WHEREFORE the Parties agree as follows:
1. CONCRETE PATIO/DECK AREA: Defendants will remediate their yard that
abuts the Plaintiffs’ property as follows:
a. Cut back the concrete patio/deck (including concrete, concrete blocks, and
other fill) back for a distance of 5 feet northerly of the Parties mutual property
line. The remaining earth in the 5-foot setback area will have a natural
surface (such a dirt, plants, etc.) so that it can absorb surface water, and will
gradually slope from the remaining portion of the concrete patio/deck to the
property line between the Parties properties.
b. Restore their property grade as it was, including the removal of fill such that
the land descends in a gentle slope and meets the Grigorieffs’ original
retaining wall at a height at 2” (or more) below the top of the wall. This wall is
parallel to the xxxxx’ / Grigorieff's property line. and its height can be easily
determined in the field. The height of the retaining wall and land is to be
measured without the 2” x 12” board that was added to the top of the retaining
wall, and this board and associated backfill will be removed.; ie 5 ae conte ween
c. The shrubbery, pots, and planters that currently sit on top of the xxxxx'
patio/deck and are within 5 feet of the xxxxx’ / Grigorieff property line, shall be
removed and not replaced. The five-feet of vinyl fencing in the setback (that
does not abut the Pichts’ property) shall be reduced in height to six feet (as
measured from the Grigorieff's property). Subject to Grigorieff obtaining
approval from the Pichts, the xxxxx agree for the portion of the white vinyl
fence that abuts the Pichts’ property and within the five-foot setback to be
either (1) reduced in height to six feet (as measured from the Grigorieff's
property) or (2) for the five feet of white vinyl fencing to be removed.
. RETAINING WALL: Plaintiffs will rebuild their retaining wall in accord with its
original (1986) height and design along the Grigorieff/xxxxx property line. The
approximate height of the retaining wall will be as follows: (1) there will be no
wall in the area between Winged Foot Road and a point about 7’ 4” distant; (2)
the wall will be 2 feet tall from the point where it begins (7' 4” from Winged Foot
Road) for a length of 41 feet; (3) next, the wall will transition in height from two to
three feet over a distance of about 2’ 6”; and (4) the remaining 30’ 9’ of wall, to
the point where It abuts the Pichts’ property, will be 3 feet tall. Plaintiffs will not
rebuild their retaining wall until the cutback of the patio is completed.
. NO FENCE TO BE INSTALLED: Defendants agree not to erect a fence along
their property line that abuts the Plaintiffs’ property, but they may plant a hedge
instead, This hedge will be planted in the earth (not in planters or pots), may not
exceed 6 feet in height (as measured from Defendants’ land), and must be
contained on Defendants’ property. i.e., it will not extend over Defendants’
property line. Furthermore, the hedge will be set back so that it can be trimmed
and maintained from Defendants’ side of the property line. The hedge can be
planted within the five-foot setback between the property of the Plaintiffs and
Defendants.
. NO STRUCTURES IN SETBACK: Defendants agree not to build any structures
in their yard that abuts the Plaintiffs’ property within the setback area previously
occupied by their patio/deck, including ground-based solar installations, pergolas,
and the like.5. When this document is signed by all parties, Plaintiffs will discharge the /is
pendens they have placed on the Defendants’ property.
6. The Defendants and the Plaintiffs agree not to engage in any harassment
directed toward each other.
7. Neither party will pay attorney fees, court costs, or any other damages to the
other. Neither party will be considered the prevailing party, and each side will
bear their own costs and attorneys’ fees.
8. This Agreement shall constitute a stipulation, in accord with Code of Civil
Procedure section 664.6, that the Court will retain jurisdiction of the parties’
compliance with its terms.
9. The Defendants agree to complete their tasks as described in this agreement
within 90 days following signing. Plaintiffs will complete their tasks withing 60
days after the Defendants complete their work.
40. The parties will further solidify the terms of this agreement by preparation and
execution of a Mutual General Release and Settlement Agreement, which will
contain a full release of all claims that have been brought or could have been
brought in this action.
The parties agree that an electronic signature shall serve for all purposes as an original.
In addition, the parties agree that this agreement may be signed in counterparts, and
the signature pages together with this agreement constitute one document.
Date: /2/4/22 Client: CF A
apne eg pea Trust orts 1997 Family Trust
Date: / of YAX Client: hie on
xxxxxxx R. xxxxx ag Trustee pf the xxxxx 1997 Family Trust
Date: lo fufea Client: 4uguer j; .
, Paul Grighteft, FI Plaintiffs and Cross-Defendants
Date: sl t/2 a Client Zar It‘ peper Xa
Maria Grigorieff, Plaintiffs and cro$-Défendants
3[PageApproved as to form:
Date:, Client:
Brian W. Newcomb, for Paul and Maria Grigorieff
Approved as to form: ~
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Date: lot | Cient: S~ NL
t
_“ Sarah Oriielas, for Jdhn and xxxxxxx R xxxxx, as Trustees of
the xxxxx 199% Family Trust
z Sige” eeApproved as to form:
Date_ Le 7202 client: Bure A A eseed -
Brian W. Newcomb, for Paul and Maria Grigorieff
Approved as to form:
Date: Client:
Sarah Ornelas, for xxxx and xxxxxxx R xxxxx, as Trustees of
the xxxxx 1997 Family Trust
4|PageEXHIBIT BMichael Worsham
From: Sarah Ornelas
Sent: Tuesday, October 4, 2022 5:14 PM
To: Dept2; Paul Grigorieff
Ce: Michael Worsham; Brian Newcomb
Subject: RE: Grigorieff v. xxxxx 17CIV02353
Attachments: 20221004171042829.pdf
Attached is MOU with my signature. Paul will be sending the remaining signatures (including my clients).
Sarah Ornelas
Partner
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contacts
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CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini,com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Dept2
Sent: Tuesday, October 4, 2022 5:12 PM
To: Dept2 ; Sarah Ornelas ; Paul Grigorieff
Cc: Michael Worsham ; Brian Newcomb
Subject: RE: Grigorieff v. xxxxx 17CIV02353
Hello?
From: Dept2
Sent: Tuesday, October 4, 2022 5:06 PM
To: Sarah Ornelas ; Dept2 ; Paul Grigorieff
Cc: Michael Worsham ; Brian Newcomb
Subject: RE: Grigorieff v. xxxxx 17CIV02353Please hurry. My clerk has to catch a train home.
From: Sarah Ornelas
Sent: Tuesday, October 4, 2022 5:02 PM
To: Dept2 ; Paul Grigorieff
Cc: Michael Worsham ; Brian Newcomb
Subject: RE: Grigorieff v. xxxxx 17CIV02353
Good afternoon, Judge Weiner,
Circulating signatures. Fully signed copy will be provided in a couple minutes.
Thank you so much for your assistance.
Sarah
Sarah Ornelas
Partner
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contacts
www.bortonpet m
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or
distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall
not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
ini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Dept2
Sent: Tuesday, October 4, 2022 5:01 PM
To: Dept2 ; Paul Grigorieff
Cc: Sarah Ornelas
Subject: RE: Grigorieff v. xxxxx 17CIV02353
CAUTION: This email came from outside Borton Petrini. Please exercise caution when opening attachments or links.
It is five o'clock. Where are we at?
Judge WeinerFrom: Dept2
Sent: Tuesday, October 4, 2022 4:02 PM
To: Dept2 ; Paul Grigorieff
Cc: sornelas@bortonpetrini.com
Subject: RE: Grigorieff v. xxxxx 17CIV02353
lam on Zoom now.
Judge Weiner
From: Dept2
Sent: Tuesday, October 4, 2022 4:00 PM
To: Paul Grigorieff ; Dept2
Cc: sornelas@bortonpetrini.com
Subject: RE: Grigorieff v. xxxxx 17CIV02353
Please all Zoom in to Department 2
From: Paul Grigorieff
Sent: Tuesday, October 4, 2022 3:38 PM
To: Dept2
Cc: sornelas@bortonpetrini.com
Subject: Grigorieff v. xxxxx 17CIV02353
Our attorney, Brian Newcomb, indicates to us that we will need the assistance of Judge Weiner via Zoom to
achieve agreement with the Lortses regarding the settlement we agree to in principle earlier today. We
understand Judge Weiner will not be available after 4:30 PM today.
-Paul Grigorieff, Plaintiff
Paul Grigorieff
650-727-7759Michael Worsham
From:
Sent:
To:
Cec:
Subject:
Attachments:
Paul Grigorieff
Tuesday, October 4, 2022 5:18 PM
dept2@sanmateocourt.org
Sarah Ornelas; Brian Newcomb
Signature pages for 17CIV02353
img107.pdf; img108.pdf
CAUTION: This email came from outside Borton Petrini. Please exercise caution when opening attachments or links.
Attached please find signature pages for our settlement agreement.
Thank you,
Paul Grigorieff
650-727-7759EXHIBIT CEXHIBIT DMichael Worsham
a SSS
From: Brian Newcomb
Sent: Monday, December 5, 2022 8:17 PM
To: Sarah Ornelas
Subject: Re: The Grigorieffs' Redline Version | inadvertently failed to attach
Dear Sara, | apologize for the delay in getting back to you , the delay is more my calendar than this
case. | should be back to you in one to 2 days. Thank you for your patience and cooperation, Kind
Regards, Brian
On Wed, Nov 30, 2022 at 10:08 AM Sarah Ornelas wrote:
Good morning, Brian,
1am following up again on the below. Haven’t heard back from you in a while, an that is causing some concern on my
end. Please let me know where things stand.
Thanks,
| Sarah
| Sarah Ornelas
q- = =| || Managing Partner - Sacramento Office
=
201 Needham Street Tel: (209) 576-1701
| Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
| Add to Contacts
yo
| www.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
| shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
1attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
so bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Sarah Ornelas
Sent: Monday, November 28, 2022 8:39 AM
To: Brian Newcomb
Cc: Michael Worsham
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Importance: High
Hi, Brian,
| hope you had an enjoyable Thanksgiving break.
1am following up on my below email from 11/21. I’ve also provided any additional attachment of the document
hereto. Please review and let me know where things stand on your end.
Thank you,
Sarah
Sarah Ornelas
qo Managing Partner - Sacramento Office
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contactswww.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you,
From: Sarah Ornelas
Sent: Monday, November 21, 2022 9:02 AM
To: Brian Newcomb
Cc: Michael Worsham
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Brian,
The version that | sent to you on Friday 11/18 (an additional copy is attached), should work on my end provided that
your clients do not have any changes. Can you please confirm if your clients are agreeable to the attached version.
If you need to reach me by phone today, my cell is the best number to reach me iii
Thank you,
Sarah
Sarah Ornelas
Managing Partner - Sacramento Office
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contactswww.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thankyou.
From: Sarah Ornelas
Sent: Friday, November 18, 2022 3:37 PM
To: Brian Newcomb
Cc: Michael Worsham
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Brian,
Attached is the additional change that we were just discussing on the phone. Please review the attached version with
your clients and let me know if they agree to same. As discussed, my clients are not near a computer right now, so
while | discussed the changes proposed by your clients, they have not had the chance to review same.
Sarah
Sarah Ornelas
Managing Partner - Sacramento Office
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas' ri
Add to Contactswww.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Sarah Ornelas
Sent: Friday, November 18, 2022 3:02 PM
To: Brian Newcomb
Cc: Michael Worsham
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Brian,
lam attaching this version we were just discussing on the phone, which includes this change:
CONCRETE PATIO/DECK AREA: Defendants will remediate their yard in the area of the concrete
patio/deck area (which includes the area behind 2” x 12” that is more fully described in subsection 2(A)(ii))that
abuts the Plaintiffs’ property as follows:
Please confirm with your clients that this addresses their concern regarding the grading area. As discussed, |
have not yet had the chance to discuss with my clients the other changes that you made. However, I will call
them now to try to review same.
Thank you,
SarahSarah Ornelas
Managing Partner - Sacramento Office
|
\
|
|
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
| sornelas' tr
| Add to Contacts
com
www.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited, Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Brian Newcomb
Sent: Friday, November 18, 2022 8:38 AM
To: Sarah Ornelas
Cc: Michael Worsham
Subject: Re: The Grigorieffs' Redline Version | inadvertently failed to attach
Dear Sarah:
Attached are the Grigorieffs’ changes. First, there are no changes on page 1 and the changes on page 2 start in
section 2.A. The changes conforms the language to the executed Memorandum of Understanding (MOU) by
deleting much of the language in 2A to that in the MOU at page | section 1(h) last sentence.
The next major change is that my clients wish to delete section G(i), (ii), and (iii), because neither party will be
doing any work on the other parties’ property. Ifa need arises for some unforeseen reason that either party needs
6to enter the other’s property, he or she need only contact counsel to arrange the entry. It was not an issue before
the work implementing the settlement and my clients do not anticipate any issuc in the future.
I trust this is acceptable to Mr. and Mrs. xxxxx so we can resolve this matter.
Thank you for your cooperation.
Kind Regards,
Brian W. Newcomb
On Thu, Nov 17, 2022 at 4:31 PM Sarah Ornelas wrote:
Hi, Brian,
Just following up on the settlement agreement. We need to get this wrapped up, and it would be easiest if we get it
done before my clients leave the country.
Thanks,
Sarah Ornelas
a= Managing Partner - Sacramento Office
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contactswww.bortonpetrini.com
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Sarah Ornelas
Sent: Tuesday, November 15, 2022 11:29 AM
To: Brian Newcomb
Cc: Michael Worsham
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Brian,
Attached is the version that contains the change that we discussed during our call today.
Sarah
Sarah Ornelas
Managing Partner - Sacramento Office
201 Needham Street Tel: (209) 576-1701
Modesto, CA 95354 Fax: (209) 527-9753
sornelas@bortonpetrini.com
Add to Contacts
ajortonpetr!
CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are
intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying,
or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure
shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any
attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at
sornelas@bortonpetrinicom or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or
legal mail. Thank you.
From: Sarah Ornelas
Sent: Tuesday, November 15, 2022 11:03 AM
To: Brian Newcomb brianwnewcomb@gmail.com
Ce: Michael Worsham mworsham@bortonpetrini.com
Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach
Good morning, Brian,
Please see the attached redlined version. There were some deletions and insertions that I rejected, but for
some reason the track changes did not show. Therefore, I want to note them here. Also, I wanted to explain
the reasoning why some of the insertions are not agreeable.
2(A)(ii) — I deleted “before the construction of the patio/deck.” This insertion doesn’t make sense to me. The
intent is for the grade to be slopped from the bottom of the remaining concrete pad to the retaining wall. This
is adequately described in the agreement. Further, as you know, this language was already agreed and signed
by both parties in the MOU.
2(A) — I added the language “area of the concrete patio/deck area.” Your clients deleted this, and I added it
back in. I was trying to specifically describe the area that we were referring to. I’m open to if your client has
another way to describe that area for consideration. As you know, the MOU already makes it clear that 2(A)
is only referring to the “Concrete Patio / Deck Area.” Perhaps, your clients’ are concerned with the fact that
what was once the “Concrete Patio / Deck Area” is a smaller area. We can probably figure out language that
would address this concern.
2(A)(iii) — As we have discussed, my clients intend to take the plants that are currently in the planters and
plant them in the dirt. The removal of the word shrubbery causes concern that there is ambiguity in the
parties’ intent and agreement. This is why I deleted the word shrubbery from this paragraph.2(D) — The deal was only for the work in the setback area to be not to have any solar installation, pergolas and
the like. Obviously, any improvements in the non-set back area would need to be compliant with the City and
Ocean Colony. However, that is not part of this agreement. Again, this is MOU language we already agreed
to.
I’m not sure why your clients deleted paragraph G(iii) and (iv). Therefore, I added that language back
in. This was something we already discussed and agreed to.
Please let me know if we can put this into final and arrange for signatures. My clients will be traveling very
soon, and we need to get this finalized. My clients will be traveling out of
Preview
28 m:\matters\055 (@3374010732 30 @104179\plea Sarah A. Ornelas, Esq., SBN. 258890 BORTON PETRINI, LLP 201 Needham Street Modesto, California 95354 Telephone (209) 576-1701 Facsimile (209) 527-9753 sornelas@bortonpetrini.com Attorneys for Defendants, xxxx xxxxx and xxxxxxx R. xxxxx, AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO PAUL GRIGORIEFF and MARIA | Case No. 17CIV02353 GRIGORIEFF, DEFENDANTS/CROSS-COMPLAINANTS Plaintiffs, xxxx xxxxx AND xxxxxxx R. xxxxx, Vv. xxxx xxxxx and COLEEN R. xxxxx, AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST UNDER DECLARATION OF TRUST DATED 2/6/1997, FIRST AMENDMENT AND RESTATEMENT 6/12/2009, AND DOES 1 THROUGH AND INCLUDING 10, Defendants. xxxx xxxxx and xxxxxxx R. xxxxx, as Trustees of the xxxxx 1997, First Amendment and Restatement 6/12/2009, Cross-Complainants, ve PAUL GRIGORIEFF and MARIA GRIGORIEFF, and ROES 1 THROUGH AND INCLUDING 10, Cross-Defendants. AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST’S NOTICE AND MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS THE ACTION WITH PREJUDICE; MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF SARAH A. ORNELAS Date: May 2, 2023 Time: 2:00 p.m. Depart: 4 Location: Courtroom G DEFENDANTS/CROSS-COMPLAINANTS xxxx xxxxx AND xxxxxxx R. xxxxx, AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST’S NOTICE AND MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTN 28 m:matters\055 (@33740\0732 30 @104179\plea TO ALL PARTIES THROUGH AND BY THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on the above date, time and department of the San Mateo County Superior Court, Defendants/Cross-Complainants xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust (collectively “Defendants”) will move the Court for an order as follows: 1. To enforce the parties’ Settlement Agreement, as set forth in the signed Memorandum of Understanding dated October 4, 2022 pursuant to California Code of Civil Procedure § 664.6; 2. For a dismissal of this Action, with prejudice, pursuant to California Rules of Court 3.1385 and California Code of Civil Procedure §583.310 and 3.1385(c)(2). 3. Sanctions in the amount of $1059.00 are requested pursuant to California Rules of Court Rule 2.30(b), due to Plaintiffs’ blatant refusal to company with the terms of settlement agreement as set forth in the Memorandum of Understanding (dated: October 4, 2022), thereby causing the unnecessary filing of the forgoing Motion. The hearing for this motion will take place May 2, 2023, at the Superior Court of California, County of San Mateo located at 800 North Humboldt, San Mateo, CA 94401. This Motion is based upon this Notice and Motion, the Memorandum of Points and Authorities, the Declaration of Sarah A. Ornelas, and the court’s complete files and records in this action. The Court utilizes a tentative ruling system. A tentative ruling on any law and motion matter may be obtained by telephoning (650) 261-5019, after 3:00 p.m. on the first court day immediately preceding the hearing on the motion or by accessing the court’s website at http://www.sanmateocourt.org/director.php?filename=./lawmotion/alltentrules.php Parties intending to appear on the matter shall notify the Law and Motion Department or the department hearing the case and state their intent to appear. Parties shall follow the instructions as directed on the telephone Tentative Ruling notification message or on the Court’s website. DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:\matters\055 118 (@33740\0732 30 @104179\plea Dated: March (@ , 2023 BORTON PETRINI, LLP arah A> pn Attorneys efendants, xxxx xxxxx and xxxxxxx R. xxxxx, AS -TRUS' OF THE xxxxx 1997 FAMILY TRUST MEMORANDUM OF LAW IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS I. FACTUAL AND PROCEDURAL BACKGROUND This case involves disputes amongst neighbors. The xxxxx 1997 Family Trust owns a single-family residence located at 392 Greenbriar Road in the City of Half Moon Bay. xxxx and xxxxxxx xxxxx are the trustees of the Trust. The property is located within the Ocean Colony subdivision and subject to the jurisdiction of the Ocean Colony Owners Association. Plaintiffs PAUL GRIGORIEFF and MARIA GRIGORIEFF (“Plaintiffs”) are the owners of the adjacent property known as 2001 Winged Foot Road. Plaintiffs purchased the property in or around June 1, 2012. Plaintiffs and Defendants are next door neighbors. After living in their property for years, Plaintiffs became upset with certain improvements that were made by Defendants (despite said improvements being made years before Plaintiffs acquired their Property and/or being made with the permission of the prior owner of the Winged Foot Road property). On May 30, 2017, Plaintiffs filed their Complaint in the San Mateo County Superior Court alleging three causes of action — Trespass, Wrongful Discharge of Surface Water and Private Nuisance. Plaintiffs named xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust as Defendants. Plaintiffs did not (and have not) sued xxxx xxxxx and/or xxxxxxx xxxxx in any individual capacity. On May 15, 2019, Plaintiffs filed an Amended Complaint with this Court. This time 3 DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTwo wo 28 me\matters\055 @3374010732 30 Plaintiffs only brought two causes of action — Trespass and Private Nuisance. This Amended Complaint is the operative Complaint for the purposes of this action. After a third Mandatory Settlement Conference, the parties were able to reach a settlement in this matter on October 4, 2022. See Declaration of Sarah A. Ornelas (“SAO DEC”) § 2. The settlement was reached late in the afternoon, so the parties did not have the time to draft a full Mutual General Release and Settlement Agreement. Therefore, the parties jointly prepared and signed a Memorandum of Understanding dated October 4, 2022. See SAO DEC {3 and Exhibits A and B. Work on the subject properties has been completed by both sides pursuant to the terms of the Memorandum of Understanding. Defendants have removed the concrete pad section and other items that they agreed to remove, and Plaintiffs have rebuilt the retaining wall. However, a Mutual General Release and Settlement Agreement has not been finalized. See SAO DEC {[ 4 and Exhibit C. The Memorandum of Understanding provided (in part) the following: 10. The parties will further solidify the terms of this agreement by preparation and execution of a Mutual General Release and Settlement Agreement, which will contain a full release of all claims that have been brought ar could have been brought in this action. Pursuant to paragraph 10 (above), a draft “Mutual General Release and Settlement Agreement” (“Mutual Release”) was prepared and the parties went back and forth multiple times trying to finalize the terms of the Mutual Release. See SAO DEC [5 and Exhibit D. On December 14, 2022, Plaintiffs counsel sent an additional version of the Mutual Release with further proposed changes. See SAO DEC [6 and Exhibit E. On December 15, 2022, Plaintiffs’ counsel and defense counsel had a lengthy telephone conversation to try to solidify the terms and finally agree on the terms. After that lengthy telephone conversation, defense counsel sent a detailed email to Plaintiffs counsel with an additional version of the Mutual Release for Plaintiffs review and comment. See SAO DEC 47 and Exhibit F. Defense counsel followed up regarding the status of the Mutual Release on multiple times including via email on December 20, December 22 and January 4. See SAO DEC 4 8 and Exhibit G. Counsel also spoke on January 9, 2023 regarding the to obtain a finalized and executed Mutual Release 4 @104179\plea DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 2 m:\matters\055 us @33740\0732 30 2 @I104179\plea so that the parties can get this matter dismissed with the Court. No further communications from Plaintiffs’ counsel were received during the Motion of January. A final meet and confer letter was sent to Plaintiffs’ counsel on February 9, 2023. See SAO DEC 4 9 and Exhibit H. A. The Court has Authority to Enforce the Parties Settlement Agreement Pursuant to California Code of Civil Procedure § 664.6 In the Memorandum of Understanding, the Parties agreed that the Court would retain jurisdiction over this matter pursuant to California Code of Civil Procedure §664.6. CCP §664.6 provides in relevant part: (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. [Emphasis added]. Pursuant to the terms of the Memorandum of Understanding, Defendants request that this Court issue a Judgment that contains a mutual release of liability for claims against the Parties. Specifically, the various version of the General Mutual Release and Settlement Agreement has contained the following release language, which moving parties understand that all parties have agreed to: 1. Release. Each party does hereby generally and specifically release, discharge and acquit each other and their officers, employees, agents, accountants, attorneys, shareholders, successors, servants, representatives, guarantors, indemnitors, insurers, Trumbull Insurance Company, Hartford Insurance and/or related entities of Hartford Insurance (the insurance carrier for the xxxxx), assigns, executors, spouses, heirs and each of them, from any and all claims, demands, liabilities, actions, causes of action, damages, expenses, obligations, arising out of or in any way related to claims set forth in the LITIGATION and/or that could have been brought in this LITIGATION; including but not limited to attorney's fees, accountant's fees, and any and all fees or costs associated with the subject claims and defenses of every nature, character or description whatsoever, whether known or unknown, suspected or unsuspected, or claims arising out of the Litigation, including claims for nuisance, trespass, negligence, violations of the CCR&Rs, violations of the California Coastal Act, violations of the Davis-Sterling Act, breach of contract claims, breach of equitable servitude claims or the issues and facts of the pleadings therein. Each of the undersigned parties hereby releases and forever discharges each other party to this Mutual General Release and Settlement Agreement, and any and all persons connected with them, of and 5 DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:\matters\055, 118 @ 3374010732 30 @104179\plea from any and all claims, demands, actions or causes of action arising out of, or in any way connected with, or relating to any activities with concerning or related to any construction, landscaping, hardscape in the rear or side yard of the xxxxx’ home or the Grigorieffs’ retaining wall. Notwithstanding anything in this AGREEMENT to the contrary, the PARTIES agree and stipulate that this AGREEMENT in no way affects or alters the rights of any future owners of 2101 Winged Foot Road, Half Moon Bay, California or 392 Greenbriar Road, Half Moon Bay, California. This release does not include “future owners” or entities in which any of the Parties maintains a financial interest. Notwithstanding anything contrary in this Agreement, nothing in this Agreement shall affect any claims, demands, liabilities, actions, causes of action, damages, expenses, or obligations arising out of claims concerning any Future Violation(s) of the CC&Rs of Ocean Colony, the Municipal Code of the City of Half Moon Bay, CA, the Davis-Sterling Act, and/or the California Coastal Act, i.e., any violation/s which commenced after the date this Agreement was executed. For purposes of this agreement, the term "Future Violations” relate to any work completed or conditions that arise on the properties located 2101 Winged Foot Road, Half Moon Bay, California or 392 Greenbriar Road, Half Moon Bay, California after the execution of this Agreement and after the completion of the work required under this Agreement. Defendants also move for the Court to enter any further orders in the Judgment pursuant to the terms of the Mutual Release, to the extent that the Court finds that the parties have agreed to such terms. In re Marriage of Assemi (Cal. 1994) 7 Cal. 4" 896, 30 Cal. Rptr. 2d 265. B. The Court Must Dismiss This Action Pursuant to California Code of Civil Procedure § 583.310 As more fully described above, this case has been settled and work completed pursuant to the agreement has been completed by both sides. However, the Mutual General Release and Settlement Agreement has not been finalized/signed by the Parties. Dismissal of this action is also required pursuant to California Code of Civil Procedure §583.310. Suit was originally filed on May 30, 2017. The five year period was set to expire on May 30, 2022. Counsel stipulated to extend the five-year rule by six months (until November 30, 2022). There was no further agreed upon extension of the rule. See SAO DEC 410. Therefore, the dismissal is required pursuant to California Code of Civil Procedure §583.310. See Code Civ. Proc. §583.310; See Andersen v Superior Court (1921) 187 Cal. 95, 97; Fannin Corp v Superior Court (1974) 36 Cal. App. 3d 745, 749). Ad //1 DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:\matters\055 @33740\0732 30 @104179\plea C. By the Time the Court Considers this Motions, Dismissal will be Required Pursuant to California Rules of Court Rule 3.1385(c)(2) As more fully described above, this case has been settled and work pursuant to the Settlement Agreement has been completed. Plaintiffs’ counsel filed a Notice of Conditional Settlement with this Court stating that the Request for Dismissal would be filed on or before March 7, 2023. By the time of the hearing on this Motion on May 2, 2023, it will be fifty-six (56) days since March 7, 2023. See SAO DEC 410 and Exhibit I. California Rules of Court Rule 3.1385(c)(2) provides: If the plaintiff or other party required to serve and file a request for dismissal within 45 days after the dismissal date specified in the notice does not do so, the court must dismiss the entire case unless good cause is shown why the case should not be dismissed. Emphasis in the original. D. Sanctions Should be Awarded Due to Plaintiffs’ Bad Faith in Requiring the Defendants to File This Motion This Motion should not need to be filed. The parties reached a settlement, performed work pursuant to the settlement and just need to finalize the Mutual Release so that the Dismissal can be filed with the Court. Defense counsel has attempted to meet and confer on this issue multiple times with Plaintiffs’ counsel and will continue to try to meet and confer with opposing counsel prior to the Court’s hearing on this Motion. The actions of the Plaintiffs’ have forced the Defendants to file this Motion, which should never have been needed. California Rules of Court Rule 2.30(b) provides: In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules. For the purposes of this rule, "person" means a party, a party's attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense thereto. DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m\matters\055 118 @33740\0732 30 @104179\plea Plaintiffs’ have violated the terms of this Agreement and failed to file the necessary dismissals within the timeframe agreed upon by the Parties. Despite numerous meet and confer efforts to attempt to resolve this matter without the need for Court involvement, Plaintiffs and/or Plaintiffs counsel continued to refuse to finalize the Mutual Release and dismiss this action. Defendants have been unable to get any response from the Plaintiff’s to the last version of the Settlement Agreement. Thus, Plaintiffs’ actions are not in good-faith and have required Defendants to incur costs and fees in the amount of $1059.00, in bringing this Motion, See SAO DEC (11. Wl. CONCLUSION Based on the forgoing, Defendants/Cross-Complainants xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust request that the Court enter a Judgment with a mutual release of all claims against the Parties, dismiss this action with prejudice and award Defendants $1059.00 in sanctions against Plaintiffs due to their failure to comply with the California Rules of Court. Dated: March Le , 2023 BORTON PETRINI, LLP DECLARATION OF SARAH ORNELAS I, Sarah A. Ornelas, declare: 1. Iam an attorney at law duly licensed to practice before all courts in the State of California. I am a partner at Borton Petrini, LLP, attorneys of record for Defendants/Cross-Complainants xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx 1997 Family Trust (collectively “Defendants”) herein. If called DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:\matters\055 (@33740\0732 30 @0417%plea upon as a witness, I can and will competently testify to the following from my own personal knowledge. 2. After a third Mandatory Settlement Conference, the parties were able to reach a settlement in this matter on October 4, 2022. 3. The settlement was reached late in the afternoon, so the parties did not have the time to draft a full Mutual General Release and Settlement Agreement. Therefore, the parties jointly prepared and signed a Memorandum of Understanding dated October 4, 2022. A true and accurate copy of the signed Memorandum of Understanding is attached hereto as Exhibit A. The Memorandum of Understanding was conveyed to the Court via email by the parties on October 4, 2022. True and accurate copies of the applicable emails have been attached hereto as Exhibit B. 4, Work on the subject properties has been completed by both sides pursuant to the terms of the Memorandum of Understanding. Defendants have removed the concrete pad section and other items that they agreed to remove, and Plaintiffs have rebuilt the retaining wall. Photographs of the completed work have been attached hereto as Exhibit C. Despite work being completed by both sides, the Mutual General Release and Settlement Agreement has not been finalized. 5h Pursuant to paragraph 10 of the Memorandum of Understanding, a draft “Mutual General Release and Settlement Agreement” (“Mutual Release”) was prepared and the parties went back and forth multiple times trying to finalize the terms of the Mutual Release. A copy of some of the emails back and forth between counsel trying to negotiate the terms of the Mutual Release have been jointly annexed hereto as Exhibit D. 6. On December 14, 2022, Plaintiff's (Brian Newcomb) counsel sent an additional version of the Mutual Release with further proposed changes. A true and accurate copy of this email (with attachment) is attached hereto as Exhibit E. 7. On December 15, 2022, Plaintiffs’ counsel and I had a lengthy telephone conversation to try to solidify the terms and finally agree on the terms. Our intent was to be able to finalize the final pending issues that our clients had with the last versions of the Mutual Release. After that lengthy telephone conversation, I sent a detailed email to Plaintiff's counsel with an additional version of the Mutual Release for Plaintiff's review and comment. A true and accurate copy of this email (with attachment) is attached hereto as Exhibit F. DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:matters\055 (@3374010732 30 8. I followed up regarding the status of the Mutual Release on multiple times including via email on December 20, December 22 and January 4. A copy of my emails to Brian Newcomb have been attached hereto collectively as Exhibit G. 9. Brian Newcomb and | also spoke on January 9, 2023 regarding the need to obtain a finalized and executed Mutual Release so that the parties can get this matter dismissed with the Court. Mr. Newcomb indicated that he would speak with his clients and get back to me as to the last version of the Mutual Release. No further communications from Plaintiffs’ counsel were received during the Motion of January. A final meet and confer letter was sent to Plaintiffs’ counsel on February 9, 2023. A true and accurate copy of this meet and confer email is attached hereto as Exhibit H. 10. Suit was originally filed on May 30, 2017. The five year period was set to expire on May 30, 2022. Counsel stipulated to extend the five-year rule by six months (until November 30, 2022). There was no further agreed upon extension of the rule. A copy of the Notice of Conditional Settlement has been attached hereto as Exhibit I. 11. Defendants have incurred attorneys’ fees in the amount of $999.00 (5.4 hours) to meet and confer, research the statutory basis for this Motion and filing this Motion. It is anticipated that counsel will spend an additional hour to prepare and argue this Motion. Defendants have also incurred $60.00 in costs in the filing of this Motion. Therefore, Defendants seek sanctions in the total amount of $1059.00. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this ( Q day of March 2023,,at Modesto, California. Po 10 @104179\plea DEFENDANTS’ MOTION TO ENFORCE SETTLEMENT28 m:\matters\055 118 (@33740\0732 30 @104179\plea PROOF OF SERVICE (Code Civ. Proc., §§ 1013a) STATE OF CALIFORNIA, COUNTY OF STANISLAUS I am employed in the County of Stanislaus, State of California. I am over the age of 18 and not a party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street, Modesto, California 95354. On March 7 ; 2022, I served the foregoing document described as DEFENDANTS/CROSS-COMPLAINANTS xxxx xxxxx AND xxxxxxx R. xxxxx, AS TRUSTEES OF THE xxxxx 1997 FAMILY TRUST’S NOTICE AND MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6 AND TO DISMISS THE ACTION WITH PREJUDICE; MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF SARAH A. ORNELAS on the other parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list. SEE ATTACHED SERVICE LIST [By MAIL: As follows: Iam "readily familiar" with the firm's practice of collection and processin; correspondence for mailing with the United States Postal Service. Under that practice the envelope would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Modesto, California in the ordinary course of business. Tl BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed above. The facsimile machine I used complied with California Rules of Court, Rule 2.301 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306. T BY OVERNIGHT COURIER SERVICE: I caused each envelope with postage fully prepaid to be sent by overnight. B BY PERSONAL SERVICE: Pursuant to C.C.P. Section 1011, I caused to be delivered such envelope by hand to the offices of the addressee(s) listed on the attached mailing list. ee BY EMAIL OR ELECTRONIC FILING/SERVICE - Based upon a court order, local Rules of Court, or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent/electronically served to the persons at the e-mail addresses listed. (C.CP. § 1010.6 and CRC § 2.251) T FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March he , 2023, at Modesto, California. Michael Worsham AA AL Signature 1 DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTn x 28) m:\matters\055 (@33740\0732 30 @104179plea ATTORNEY FOR PLAINTIFF Brian W. Newcomb, Esq. Attorney at Law 770 Menlo Avenue, Suite 101 Menlo Park, CA 94015 Ph: (650) 322-7780 Fax (650) 322-7740 brianwnewcomb@gmail.com 12 DEFENDANTS’ MOTION TO ENFORCE SETTLEMENTEXHIBIT AMEMORANDUM OF UNDERSTANDING This Memorandum of Understanding is made and entered into this 4th day of October 2022, by and between Paul Grigorieff and Maria Grigorieff (hereinafter "Plaintiffs" or “Grigorieffs”), xxxx xxxxx and xxxxxxx xxxxx, as Trustees of the xxxxx' 1997 Family Trust (hereinafter "Defendants" or “xxxxx”). GRIGORIEFFS and xxxxx may be collectively referred to herein as the “Parties.” The parties have reached a settlement agreement in this matter of Paul Grigorieff and Maria Grigorieff vs. xxxx xxxxx and xxxxxxx xxxxx as Trustees of The xxxxx’ 1997 Family Trust, San Mateo Superior Court, CASE No. 17CIV02353 and this Memorandum of Understanding sets forth the major terms of said settlement agreement. This Agreement will be further solidified by the signing of a Mutual General Release and Settlement Agreement, which will be finalized and signed by the parties after execution of this documents. WHEREFORE the Parties agree as follows: 1. CONCRETE PATIO/DECK AREA: Defendants will remediate their yard that abuts the Plaintiffs’ property as follows: a. Cut back the concrete patio/deck (including concrete, concrete blocks, and other fill) back for a distance of 5 feet northerly of the Parties mutual property line. The remaining earth in the 5-foot setback area will have a natural surface (such a dirt, plants, etc.) so that it can absorb surface water, and will gradually slope from the remaining portion of the concrete patio/deck to the property line between the Parties properties. b. Restore their property grade as it was, including the removal of fill such that the land descends in a gentle slope and meets the Grigorieffs’ original retaining wall at a height at 2” (or more) below the top of the wall. This wall is parallel to the xxxxx’ / Grigorieff's property line. and its height can be easily determined in the field. The height of the retaining wall and land is to be measured without the 2” x 12” board that was added to the top of the retaining wall, and this board and associated backfill will be removed.; ie 5 ae conte ween c. The shrubbery, pots, and planters that currently sit on top of the xxxxx' patio/deck and are within 5 feet of the xxxxx’ / Grigorieff property line, shall be removed and not replaced. The five-feet of vinyl fencing in the setback (that does not abut the Pichts’ property) shall be reduced in height to six feet (as measured from the Grigorieff's property). Subject to Grigorieff obtaining approval from the Pichts, the xxxxx agree for the portion of the white vinyl fence that abuts the Pichts’ property and within the five-foot setback to be either (1) reduced in height to six feet (as measured from the Grigorieff's property) or (2) for the five feet of white vinyl fencing to be removed. . RETAINING WALL: Plaintiffs will rebuild their retaining wall in accord with its original (1986) height and design along the Grigorieff/xxxxx property line. The approximate height of the retaining wall will be as follows: (1) there will be no wall in the area between Winged Foot Road and a point about 7’ 4” distant; (2) the wall will be 2 feet tall from the point where it begins (7' 4” from Winged Foot Road) for a length of 41 feet; (3) next, the wall will transition in height from two to three feet over a distance of about 2’ 6”; and (4) the remaining 30’ 9’ of wall, to the point where It abuts the Pichts’ property, will be 3 feet tall. Plaintiffs will not rebuild their retaining wall until the cutback of the patio is completed. . NO FENCE TO BE INSTALLED: Defendants agree not to erect a fence along their property line that abuts the Plaintiffs’ property, but they may plant a hedge instead, This hedge will be planted in the earth (not in planters or pots), may not exceed 6 feet in height (as measured from Defendants’ land), and must be contained on Defendants’ property. i.e., it will not extend over Defendants’ property line. Furthermore, the hedge will be set back so that it can be trimmed and maintained from Defendants’ side of the property line. The hedge can be planted within the five-foot setback between the property of the Plaintiffs and Defendants. . NO STRUCTURES IN SETBACK: Defendants agree not to build any structures in their yard that abuts the Plaintiffs’ property within the setback area previously occupied by their patio/deck, including ground-based solar installations, pergolas, and the like.5. When this document is signed by all parties, Plaintiffs will discharge the /is pendens they have placed on the Defendants’ property. 6. The Defendants and the Plaintiffs agree not to engage in any harassment directed toward each other. 7. Neither party will pay attorney fees, court costs, or any other damages to the other. Neither party will be considered the prevailing party, and each side will bear their own costs and attorneys’ fees. 8. This Agreement shall constitute a stipulation, in accord with Code of Civil Procedure section 664.6, that the Court will retain jurisdiction of the parties’ compliance with its terms. 9. The Defendants agree to complete their tasks as described in this agreement within 90 days following signing. Plaintiffs will complete their tasks withing 60 days after the Defendants complete their work. 40. The parties will further solidify the terms of this agreement by preparation and execution of a Mutual General Release and Settlement Agreement, which will contain a full release of all claims that have been brought or could have been brought in this action. The parties agree that an electronic signature shall serve for all purposes as an original. In addition, the parties agree that this agreement may be signed in counterparts, and the signature pages together with this agreement constitute one document. Date: /2/4/22 Client: CF A apne eg pea Trust orts 1997 Family Trust Date: / of YAX Client: hie on xxxxxxx R. xxxxx ag Trustee pf the xxxxx 1997 Family Trust Date: lo fufea Client: 4uguer j; . , Paul Grighteft, FI Plaintiffs and Cross-Defendants Date: sl t/2 a Client Zar It‘ peper Xa Maria Grigorieff, Plaintiffs and cro$-Défendants 3[PageApproved as to form: Date:, Client: Brian W. Newcomb, for Paul and Maria Grigorieff Approved as to form: ~ [ fo we el /) Date: lot | Cient: S~ NL t _“ Sarah Oriielas, for Jdhn and xxxxxxx R xxxxx, as Trustees of the xxxxx 199% Family Trust z Sige” eeApproved as to form: Date_ Le 7202 client: Bure A A eseed - Brian W. Newcomb, for Paul and Maria Grigorieff Approved as to form: Date: Client: Sarah Ornelas, for xxxx and xxxxxxx R xxxxx, as Trustees of the xxxxx 1997 Family Trust 4|PageEXHIBIT BMichael Worsham From: Sarah Ornelas Sent: Tuesday, October 4, 2022 5:14 PM To: Dept2; Paul Grigorieff Ce: Michael Worsham; Brian Newcomb Subject: RE: Grigorieff v. xxxxx 17CIV02353 Attachments: 20221004171042829.pdf Attached is MOU with my signature. Paul will be sending the remaining signatures (including my clients). Sarah Ornelas Partner 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contacts aren} NY (rita Cr UT Sok COT LS mmessterc ttt) (6S3) UU 0 ed E ( i LDC) WLU Ti Cas) eb SU COC) setae ed Beene Renpeea ntti) Run bon Ls oye Re (Cot) eer er > é CUS PEP RU TUM CTE) KOLEIEAL) CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini,com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Dept2 Sent: Tuesday, October 4, 2022 5:12 PM To: Dept2 ; Sarah Ornelas ; Paul Grigorieff Cc: Michael Worsham ; Brian Newcomb Subject: RE: Grigorieff v. xxxxx 17CIV02353 Hello? From: Dept2 Sent: Tuesday, October 4, 2022 5:06 PM To: Sarah Ornelas ; Dept2 ; Paul Grigorieff Cc: Michael Worsham ; Brian Newcomb Subject: RE: Grigorieff v. xxxxx 17CIV02353Please hurry. My clerk has to catch a train home. From: Sarah Ornelas Sent: Tuesday, October 4, 2022 5:02 PM To: Dept2 ; Paul Grigorieff Cc: Michael Worsham ; Brian Newcomb Subject: RE: Grigorieff v. xxxxx 17CIV02353 Good afternoon, Judge Weiner, Circulating signatures. Fully signed copy will be provided in a couple minutes. Thank you so much for your assistance. Sarah Sarah Ornelas Partner 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contacts www.bortonpet m CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at ini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Dept2 Sent: Tuesday, October 4, 2022 5:01 PM To: Dept2 ; Paul Grigorieff Cc: Sarah Ornelas Subject: RE: Grigorieff v. xxxxx 17CIV02353 CAUTION: This email came from outside Borton Petrini. Please exercise caution when opening attachments or links. It is five o'clock. Where are we at? Judge WeinerFrom: Dept2 Sent: Tuesday, October 4, 2022 4:02 PM To: Dept2 ; Paul Grigorieff Cc: sornelas@bortonpetrini.com Subject: RE: Grigorieff v. xxxxx 17CIV02353 lam on Zoom now. Judge Weiner From: Dept2 Sent: Tuesday, October 4, 2022 4:00 PM To: Paul Grigorieff ; Dept2 Cc: sornelas@bortonpetrini.com Subject: RE: Grigorieff v. xxxxx 17CIV02353 Please all Zoom in to Department 2 From: Paul Grigorieff Sent: Tuesday, October 4, 2022 3:38 PM To: Dept2 Cc: sornelas@bortonpetrini.com Subject: Grigorieff v. xxxxx 17CIV02353 Our attorney, Brian Newcomb, indicates to us that we will need the assistance of Judge Weiner via Zoom to achieve agreement with the Lortses regarding the settlement we agree to in principle earlier today. We understand Judge Weiner will not be available after 4:30 PM today. -Paul Grigorieff, Plaintiff Paul Grigorieff 650-727-7759Michael Worsham From: Sent: To: Cec: Subject: Attachments: Paul Grigorieff Tuesday, October 4, 2022 5:18 PM dept2@sanmateocourt.org Sarah Ornelas; Brian Newcomb Signature pages for 17CIV02353 img107.pdf; img108.pdf CAUTION: This email came from outside Borton Petrini. Please exercise caution when opening attachments or links. Attached please find signature pages for our settlement agreement. Thank you, Paul Grigorieff 650-727-7759EXHIBIT CEXHIBIT DMichael Worsham a SSS From: Brian Newcomb Sent: Monday, December 5, 2022 8:17 PM To: Sarah Ornelas Subject: Re: The Grigorieffs' Redline Version | inadvertently failed to attach Dear Sara, | apologize for the delay in getting back to you , the delay is more my calendar than this case. | should be back to you in one to 2 days. Thank you for your patience and cooperation, Kind Regards, Brian On Wed, Nov 30, 2022 at 10:08 AM Sarah Ornelas wrote: Good morning, Brian, 1am following up again on the below. Haven’t heard back from you in a while, an that is causing some concern on my end. Please let me know where things stand. Thanks, | Sarah | Sarah Ornelas q- = =| || Managing Partner - Sacramento Office = 201 Needham Street Tel: (209) 576-1701 | Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com | Add to Contacts yo | www.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure | shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any 1attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at so bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Sarah Ornelas Sent: Monday, November 28, 2022 8:39 AM To: Brian Newcomb Cc: Michael Worsham Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Importance: High Hi, Brian, | hope you had an enjoyable Thanksgiving break. 1am following up on my below email from 11/21. I’ve also provided any additional attachment of the document hereto. Please review and let me know where things stand on your end. Thank you, Sarah Sarah Ornelas qo Managing Partner - Sacramento Office 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contactswww.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you, From: Sarah Ornelas Sent: Monday, November 21, 2022 9:02 AM To: Brian Newcomb Cc: Michael Worsham Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Brian, The version that | sent to you on Friday 11/18 (an additional copy is attached), should work on my end provided that your clients do not have any changes. Can you please confirm if your clients are agreeable to the attached version. If you need to reach me by phone today, my cell is the best number to reach me iii Thank you, Sarah Sarah Ornelas Managing Partner - Sacramento Office 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contactswww.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thankyou. From: Sarah Ornelas Sent: Friday, November 18, 2022 3:37 PM To: Brian Newcomb Cc: Michael Worsham Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Brian, Attached is the additional change that we were just discussing on the phone. Please review the attached version with your clients and let me know if they agree to same. As discussed, my clients are not near a computer right now, so while | discussed the changes proposed by your clients, they have not had the chance to review same. Sarah Sarah Ornelas Managing Partner - Sacramento Office 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas' ri Add to Contactswww.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Sarah Ornelas Sent: Friday, November 18, 2022 3:02 PM To: Brian Newcomb Cc: Michael Worsham Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Brian, lam attaching this version we were just discussing on the phone, which includes this change: CONCRETE PATIO/DECK AREA: Defendants will remediate their yard in the area of the concrete patio/deck area (which includes the area behind 2” x 12” that is more fully described in subsection 2(A)(ii))that abuts the Plaintiffs’ property as follows: Please confirm with your clients that this addresses their concern regarding the grading area. As discussed, | have not yet had the chance to discuss with my clients the other changes that you made. However, I will call them now to try to review same. Thank you, SarahSarah Ornelas Managing Partner - Sacramento Office | \ | | 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 | sornelas' tr | Add to Contacts com www.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited, Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Brian Newcomb Sent: Friday, November 18, 2022 8:38 AM To: Sarah Ornelas Cc: Michael Worsham Subject: Re: The Grigorieffs' Redline Version | inadvertently failed to attach Dear Sarah: Attached are the Grigorieffs’ changes. First, there are no changes on page 1 and the changes on page 2 start in section 2.A. The changes conforms the language to the executed Memorandum of Understanding (MOU) by deleting much of the language in 2A to that in the MOU at page | section 1(h) last sentence. The next major change is that my clients wish to delete section G(i), (ii), and (iii), because neither party will be doing any work on the other parties’ property. Ifa need arises for some unforeseen reason that either party needs 6to enter the other’s property, he or she need only contact counsel to arrange the entry. It was not an issue before the work implementing the settlement and my clients do not anticipate any issuc in the future. I trust this is acceptable to Mr. and Mrs. xxxxx so we can resolve this matter. Thank you for your cooperation. Kind Regards, Brian W. Newcomb On Thu, Nov 17, 2022 at 4:31 PM Sarah Ornelas wrote: Hi, Brian, Just following up on the settlement agreement. We need to get this wrapped up, and it would be easiest if we get it done before my clients leave the country. Thanks, Sarah Ornelas a= Managing Partner - Sacramento Office 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contactswww.bortonpetrini.com CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrini.com or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Sarah Ornelas Sent: Tuesday, November 15, 2022 11:29 AM To: Brian Newcomb Cc: Michael Worsham Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Brian, Attached is the version that contains the change that we discussed during our call today. Sarah Sarah Ornelas Managing Partner - Sacramento Office 201 Needham Street Tel: (209) 576-1701 Modesto, CA 95354 Fax: (209) 527-9753 sornelas@bortonpetrini.com Add to Contacts ajortonpetr! CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney-client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Sarah Ornelas at sornelas@bortonpetrinicom or by telephone at (209) 576-1701. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. From: Sarah Ornelas Sent: Tuesday, November 15, 2022 11:03 AM To: Brian Newcomb brianwnewcomb@gmail.com Ce: Michael Worsham mworsham@bortonpetrini.com Subject: RE: The Grigorieffs' Redline Version | inadvertently failed to attach Good morning, Brian, Please see the attached redlined version. There were some deletions and insertions that I rejected, but for some reason the track changes did not show. Therefore, I want to note them here. Also, I wanted to explain the reasoning why some of the insertions are not agreeable. 2(A)(ii) — I deleted “before the construction of the patio/deck.” This insertion doesn’t make sense to me. The intent is for the grade to be slopped from the bottom of the remaining concrete pad to the retaining wall. This is adequately described in the agreement. Further, as you know, this language was already agreed and signed by both parties in the MOU. 2(A) — I added the language “area of the concrete patio/deck area.” Your clients deleted this, and I added it back in. I was trying to specifically describe the area that we were referring to. I’m open to if your client has another way to describe that area for consideration. As you know, the MOU already makes it clear that 2(A) is only referring to the “Concrete Patio / Deck Area.” Perhaps, your clients’ are concerned with the fact that what was once the “Concrete Patio / Deck Area” is a smaller area. We can probably figure out language that would address this concern. 2(A)(iii) — As we have discussed, my clients intend to take the plants that are currently in the planters and plant them in the dirt. The removal of the word shrubbery causes concern that there is ambiguity in the parties’ intent and agreement. This is why I deleted the word shrubbery from this paragraph.2(D) — The deal was only for the work in the setback area to be not to have any solar installation, pergolas and the like. Obviously, any improvements in the non-set back area would need to be compliant with the City and Ocean Colony. However, that is not part of this agreement. Again, this is MOU language we already agreed to. I’m not sure why your clients deleted paragraph G(iii) and (iv). Therefore, I added that language back in. This was something we already discussed and agreed to. Please let me know if we can put this into final and arrange for signatures. My clients will be traveling very soon, and we need to get this finalized. My clients will be traveling out of