Motion to Enforce Settlement in MATTHEW SQUIRES, et al vs. R.C. WEHMEYER CONSTRUCTION, INC., et al| Trellis.Law

On February 20, 2018 a Motion-Secondary was filed involving a dispute between Bordin, Jeffrey, Martinez, Gregorio, R.C. Wehmeyer Construction, Inc., Wehmeyer, Robert C., Squires, Matthew, Squires, Nicole, and Amercian Contractors Indemnity Company, Does 1 Through 20, Inclusive, R.C. Wehmeyer Construction, Inc., Robert C. Wehmeyer Design, Inc., Wehmeyer, Robert C., for (06) Unlimited Breach of Contract/Warranty in the District Court of San Mateo County.

Preview
6/17/2020
1 ALBERT M. T. FINCH, III, ESQ. State Bar# 196478
IAN P. WILSON, ESQ. State Bar# 271075
2
ERICKSEN ARBUTHNOT
3 210 North Fourth Street, Suite 350
San Jose, CA 95112
4 tfinch@eri cksenarbutlmot. com
iwilson@ericksenarbuthnot.com
5
Telephone:(408) 286-0880
6 Facsimile: (408) 286-0337
Attorney for Defendant R.C. WEHMEYER CONSTRUCTION, INC.,
7 dba WEHMEYER CUSTOM HOMES

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN MATEO

12 MATTHEW SQUIRES; NICOLE SQUIRES,
CASE NO. 18CIV00846
13 Plaintiffs,
MEMORANDUM OF POINTS AND
14 vs. AUTHORITIES IN OPPOSITION TO
PLAINTIFFS' MOTION TO ENFORCE
15 R.C. WEHMEYER CONSTRUCTION, INC.,
SETTLEMENT AGREEMENT
dba WEHMEYER CUSTOM HOMES;
16 ROBERT C. WEHMEYER, an individual;
AMERICAN CONTRACTORS INDEMNITY Date: March 24, 2020
. 17 CO:MPANY; and DOES 1 through 20, Time: 1 :30 p.m.
inclusive, Dept:L/M
18
Defendants. Action Filed: 2/20/18
19
Cross-Complaint filed: 3/14/18
20 AND RELATED CROSS-ACTIONS. RC Wehmeyer Construction, Inc.' s Cross-
Complaint filed: 2/15/19
21
Trial Date: 11/12/2019
22
COMES NOW DEFENDANT R.C. WEHMEYER CONSTRUCTION, INC. dba
23
WEHMEYER CUSTOM HOMES ("RCWC") and herein submits its memorandum in support of
24
this objection and Opposition to Plaintiffs' Motion to Enforce Settlement ("Opposition").
25

26
I. INTRODUCTION

RCWC opposes Plaintiffs' Motion to Enforce Settlement ("Motion") on the following
27

28
_. grounds:

-1-
MEMORANDUM OF POINTS AND AUTHORlTIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
1. The settlement agreement that Plaintiffs have inexplicably moved to enforce was
2 fully executed and not effective until March 11, 2020, the date this motion was filed or
3 approximately seven (7) days prior to the filing of this Opposition;

4 2. The alleged delay in execution of the settlement agreement that is the subject of
s this motion was caused exclusively by Plaintiffs Matthew Squires and Nicole Squires
6 ("Plaintiffs") and/or their counsel or a third party and is largely the product of Plaintiffs'
7 uncompromising and vengeful approach to the drafting of the settlement agreement and to their
s handling of the settlement process;

9 3. Defendant RCWC has already Plaintiffs' counsel:

10 mistakenly sent to counsel's old address in February and a

11 sent to counsel's new address once the parties met and conferred regarding the delay.

12 As of the date of this filing, it isthis filing party's understanding that opposing

13 counsel delivered within the time limits provided by
14 the terms of the settlement agreement;
1s I. STATEMENT OF FACTS

16 This matter relates to alleged construction defect(s) resulting from construction/remodel work
17 performed at plaintiffs Matthew and Nicole Squires' ("Plaintiffs") home located in San Mateo,
18 California ("Subject Property"). Plaintiffs' Complaint alleges inter alia that work performed by
19 defendants or their subcontractors was negligent and a breach of contract, and resulted in property
20 damage. Either issues during the remodel/construction or the failure of construction elements
21 after completion allegedly led to construction defects, which led to Plaintiffs' filing of their
22 Complaint. (See 'i[2 to the Declaration oflan P. Wilson.)
23 Robert C. Wehmeyer and RCWC also asserted an affirmative claim against the Squires in the
24 form of cross complaint for unpaid fees, and filed a mechanic's lien, from change order relating
25 to the project. (Declaration oflan P. Wilson, 'if 2.)
26 Alleged Settlement "Dispute:"

27 The parties elected to resolve matter during an October 10, 2019 Mandatory Settlement
2s Conference. (Declaration of Ian P. Wilson, 'if
3 .) The parties to the lawsuit together drafted a
-2-
MEMORANDUM OF POINTS AND AUTHORlTIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
written release and circulated it amongst the parties. (Declaration of Ian P. Wilson, if4-5.) The

2 parties together took several months to agree upon the final form of the settlement draft, primarily

3 with respect to terms related to

4 and the individuals included in those provisions, a mutual

5 release amongst all parties to the lawsuit, the nature and effect those provisions would have on the

6 agreement and the elements of certain causes of action as a means for executing the final draft.

7 (Declaration of Ian P. Wilson, if6.) Accordingly, a final draft of the release and settlement

8 agreement was not circulated by counsel until around January 14, 2020 (Declaration of Ian P.

9 Wilson, if6; and See Declaration of Mengarelli at page (3) ,r 23.) On January 31, 2020, a mere

10 two weeks after the draft was initially circulated, co-counsel in the matter, Brian W. Newcomb

11 ("Newcomb") was informed by counsel of American Contractors Indemnity Company ("ACIC")

12 that some terms contained in the Release were not acceptable to ACIC, because the terms violated

13 a certain indemnity provision between ACIC and RCWC in a different preexisting agreement.

14 (Declarati'&n of Ian P. Wilson, ,r,r7-8.)As a cohsequence of this objection to the language in the

15 agreement, ACIC refused to execute the agreement. Id. Newcomb's office proposed the
16 following to Mengarelli, in response to the apparent conflict: delete ACIC from the Release,

17 which would eliminate any future barrier, because ACIC need not be a party to the agreement

1s itself, and the case could be dismissed with prejudice as to ACIC upon the full execution of the

19 Release. (Declaration of Ian P. Wilson, if9.) Despite Mengarelli agreeing to the stated proposal

20 in the foregoing matter, he informed both I, Mr. Newcomb and Mr. Finch that the Squires would

21 not agree to the same, instead affirmatively electing to delaying the execution of a revised

22 agreement. (Declaration of Ian P. Wilson, ifl0.) To expedite execution of the agreement by

23 ACIC, Newcomb then informed counsel that he would attempt to work around the barrier to

24 settlement by drafting a separate agreement between ACIC and RCWC which addressed the

25 conflicting language. (Declaration of Ian P. Wilson, ifl 1.) After Brian Newcomb pleaded with

26 internal staff of ACIC to finalize the settlement, a representative from ACIC finally signed the

27 agreement on March 11, 2020. (Declaration of Ian P. Wilson, ifl2.) Nonetheless, despite the

28 existence of the signed Release, the Squires and their counsel instead elected to go forward with a
-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
1 hearing on their motion to enforce settlement and sought an order shortening time on the that

2 hearing on March 11, 2020, which means the Squires had no way of knowing that the agreement

3 was actually executed prior to bringing a motion to enforce it.(Declaration of Ian P. Wilson,

4 if13.) In addition to the above, the release and settlement agreement by its terms necessarily

5 required the execution by ACIC to be effective and none of the terms were enforceable within the

6 agreement until all parties, including ACIC had executed the final draft of the agreement. See

7 terms of fully executed agreement.

8 Moreover, Mr. Newcomb sent a correspondence to opposing counsel on the same day ACIC

9 executed the agreement, indicating that ACIC had executed the release, rendering the matter

10 moot, however in a return correspondence, Mengarelli insisted that the hearing would go forward

11 and refused to resolve the matter in a seeming bid by both he and his colleague Ms. Glatt to

-
12 recover attorneys' fees. (Declaration oflan P. Wilson, ,r,iB-14.)

13 IRelease of Mechanic's Lien and Withdrawal of Lis Pendens:
14 Prior to March 11th, 2020 on or around February 27, 2020, RCWC

15 old address, despite no agreement being in place.
16 Admittedly, to Plaintift's counsel prior address inadvertently. Moreover, on

17 March 10 and 11, 2020, our office phoned Mr. Mengarelli and ensured him that if h e -

19 11 t IT l1
20 by Federal Express directly to counsel for

21 Plaintiffs.

22 Moreover, in an abundance of caution and despite the current "Shelter in Place" Order which

23 took effect on March 17, 2020 in response to the COVID-19 epidemic, Newcomb forwarded both

24 the executed release of the mechanic's lien and the executed withdrawal of lis pendens to counsel

25 for the Squires and instructed an agent for RCWC to hand deliver a copy of both to counsel for

26 the Squires.

21 II. STATUTORY AUTHORITY
28 The California Code of Civil Procedure §664.6 provides a summary procedure for specifically
-4-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
enforcing a settlement contract without the need for a new lawsuit. (Weddington Productions,
2 Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 (hereafter Weddington).) Motions brought pursuant
3 to C.C.P. § 664.6 have been likened to a request for summary specific performance. (Id.) A
4 settlement agreement is simply a contract. (Id.; see also Nicholson v. Barab (1991) 233
s Cal.App.3d 1671, 1681.) As such, settlement agreements are governed by the legal
6 principles generally applicable to contracts. (Nicholson v. Barab, 233 Cal.App.3d at 1681.)
7 As a general rule, the burden of pr(?of is on the party who seeks to enforce the other party's
8 duty of performance under a contract. (Kadner v. Shields (1971) 20 Cal.App.3d 251, 268-69;
9 Cal. Evid. Code § 5 00.)
1o Settlement agreements should not be enforced if issues of material fact exist
11 concerning either the existence of the agreement or its terms. (Greyhound Lines, Inc. v. Sup.
12 Ct. (1979) 98 Cal. App. 3d 604, 609.) ''[W]here there is substantial evidence to support the
13 trial court's determination that the parties did not orally agree to all of the material provisions
14 of the settlement, [a] trial court did not abuse its discretion in denying petitioners' motion [to
15 enforce settlement agreement]." (Id.)
16 III. ARGUMENT
17 As a preliminary matter, and as stated above, it should be noted that the Squires are currently
18 seeking to enforce an agreement that came in to existence the date this motion was filed and less
19 than one week prior to the drafting of this Opposition. Given this, the Release only became
20 effective by its terms one week prior to this Opposition and the date Plaintiffs' filed their Motion.
21 As such, a motion to enforce was premature at the time Plaintiffs' Motion was filed giving the
22 parties no time to reasonably execute the terms of the agreement.
23 A. The Release Needed to Be Fully Executed to Be Effective by Its Terms.
24 Under California contract law, an agreement to settle is unenforceable if the parties fail to
25 agree on a material term or if a material term is not reasonably certain. Lindsay v. Lewandowski,

26 139 Cal. App. 4th 1618 (2006); Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th 793, 811
27 (1998). "Consent is not mutual, unless the parties all agree upon the same thing in the same
28 sense." Weddington Productions, Inc., 60 Cal. App. 4th at 811; see also Cal. Civ. Code§ 3390
-5-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
1 ( contract is not specifically enforceable where terms are "not sufficiently certain" to make act to
2 be done "clearly ascertainable.") Accordingly, purported settlement agreements should not be

3 enforced if issues of material fact exist concerning either the existence of the agreement or its
4. terms. (Greyhound Lines, Inc. v.Sup. Ct. (1979) 98 Cal. App. 3d 604, 609.)
5 Here, the language of the Release indicates that it is effective/binding upon the date it is

6 fully executed and specifically requires that all parties, including ACIC, execute the agreement
7 before it is effective Specific to the agreement itself, pursuant to its language, its terms are
8 conditional only upon all parties signing or executing the Release. The terms in question within

9 include but are not limited to the following:
10 "The Agreement is effective as of the last date signed below" at pg. 1 Paragraph

11 1.

12 • the Squires. Provided that the conditions set forth in this

13 Agreement have been satisfied, and upon full execution of this Agreement ... " (at pg. 2, 11 of

14 Release);

15 • Settlement - due " .. .no later than (30) days of execution of this
16 Agreement." (Id.); and see
17 • "Release of Mechanic's Liens and Withdrawal of Lis Pendens. Immediately

18 upon execution of the Agreement ... " (at pg. 3, 16,); and see also

19 • The release also specifically included a: "Release(s) by All Defendants" (at

20 pg. 2, 16,) Declaration of Ian P. Wilson, ,r16.
21 Moreover, and also stated above, the settlement process lasted upwards of three months

22 until a draft satisfactory to both parties was prepared, during which time the parties resolved

23 numerous issues related not only to the terms of settlement, but also with respect to the inclusion

24 of certain parties to that settlement. Finally, after it appeared certain that the parties would realize

25 the fruits of their efforts and mutually assent to the terms of the Release, ACIC, a bonding

26 company and a party to the settlement agreement, indicated that it was prohibited from signing
27 the agreement, chiefly because the settlement terms conflicted with a separate indemnity
28 agreement, exclusive between RCWC and ACIC. Mengarelli refused to assent to a draft
-6-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
1 agreement without ACIC as a party rather than go through the time and inconvenience of
2 recirculating a new draft for signature without ACIC's signature. Therefore, any delay was
3 caused by Plaintiffs themselves or ACIC since they would not assent to the terms of the draft.
4 Defendants reasonably proposed a solution that the parties simply remove ACIC from the Release
5 entirely and address the ACIC's release during the dismissal phase. Given the choice between
6 clearing a path towards settlement and disputing a matter which was largely inapplicable to the
7 Release, Plaintiffs and their counsel instead, as Defendant is now readily accustomed to, refused,
8 forcing Defendants to attempt to draft a separate, standalone agreement between the ACIC and
9 Defendants, which took weeks to finalize. This was no fault ofRCWC, or its counsel. It was and

10 is entirely the fault of Plaintiffs, Mengarelli and Glatt, and it is precisely the type of decision,
11 among other bad-faith decisions made by the Plaintiffs and their counsel over the course of this
12 litigation, which has ultimately delayed the litigation process to such an extent that nearly six

13 months have elapsed since the parties originally agreed to settle this matter on October 10, 2019.
14 Now, the Plaintiffs seek to continue their pattern of harassment and bad faith by bringing this
15 current Motion, in addition to their customarily attempt to seeking unreasonable attorneys' fees.
16 Accordingly, it remains Defendant's position here that all of the above conditions went in to
17 effect on March 11, 2020, Defendants diligently and reasonably complied with the terms of the

18 release and not before, and that Plaintiffs' Motion should fail as a result.

19
B. Defendants' Obligations of Settlement Have Already Been Fulfilled Making the
20 Hearing on This Motion Moot.

21
To date, there are no further conditions of settlement for the Plaintiffs to enforce, yet they

22
persist in bringing this Motion.

23 1.
24

26
to Plaintiffs' counsel
not once, but twice: once on February 27, 2020, over two weeks prior to the agreement being
27

28
fully executed and a second time after March 11, 2020, when it was determined that the original

-7-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT
7 enough, within two weeks of sending Plaintiffs, the Defendants
8 sent Defendants have complied in good faith with the
9 terms of the agreement to comply with its terms in a diligent fashion.

10
2. Similarly, Defendant RCWC Has Already Executed The Release of the
11 Contested Mechanic's Lien and Counsel Has Executed the Withdrawal of
Lis Pendens
12
It remains counsel for RCWC's understanding that as of March 17, 2020, co-counsel has
13
1) provided opposing counsel with an executed copy of the Mechanic's Lien Release and 2)
14
provided either electronically, or in person, an executed copy of the Withdrawal of Lis Pendens.
15
At this stage, then, counsel has satisfied the conditions set forth in the Release over a week prior
16
to the hearing, should it go forward on March 24, 2020.
17 .
IV. CONCLUSION
18 Based upon the foregoing reasons and authorities, and the declarations and exhibits attached
19
hereto, RCWC hereby requests that this Court issue an order granting RCWC's Opposition to
20
· Plaintiffs' Motion to Enforce Settlement
21

22 Dated: March 18, 2019 ERICKSEN ARBUTHNOT

25 TM. . H, III, ESQ.
IAN . WILSON, ESQ.
26 Attorneys for Defendant and Cross-
Complainant R.C. WEHMEYER
27 CONSTRUCTION, INC., dba
WEHMEYER CUSTOM HOMES
28

-8-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO
ENFORCE SETTLEMENT AGREEMENT

Case Info

Judge

Chou, Danny Y. Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

June 17, 2020

Case Filing Date

February 20, 2018

County

Parties

AMERCIAN CONTRACTORS INDEMNITY COMPANY Defendant
BORDIN, JEFFREY Cross Complainant
DOES 1 THROUGH 20, INCLUSIVE Defendant
LINN, PETER J. Attorneys for Plaintiffs
MARTINEZ, GREGORIO Cross Complainant
MENGARELLI, MICHAEL Attorney
MENGARELLI, MICHAEL Attorney for the Plaintiff
MONARCA ROOFERS, INC Cross Defendant
NEWCOMB, BRIAN W. Attorney
NEWCOMB, BRIAN W. Attorney for the Defendant
R.C. WEHMEYER CONSTRUCTION, INC. Cross Complainant
R.C. WEHMEYER CONSTRUCTION, INC. Defendant
ROBERT C. WEHMEYER DESIGN, INC. Defendant
ROES 1 THROUGH 10 Cross Defendant
SQUIRES, MATTHEW Cross Defendant
SQUIRES, MATTHEW Plaintiff
SQUIRES, NICOLE Cross Defendant
SQUIRES, NICOLE Plaintiff
WEHMEYER, ROBERT C. Cross Complainant
WEHMEYER, ROBERT C. Defendant
ZOES 1 THROUGH 10, INCLUSIVE Cross Defendant
April Glatt Attorneys for Plaintiffs
Richard Kelly Attorney
John Hedger Attorney
Albert Finch Attorney
Ian Wilson Attorneys for Defendants
Thomas Walsh Attorneys for Plaintiffs
Cecil Hedger Attorneys for Defendants
Michael Mengoli Attorneys for Plaintiffs
April Gilbert Attorney
Thomas Jones Attorneys for Plaintiffs
Richard Wehmeyer Attorney
Michael Megan Attorney
Robert Kelly Attorneys for Plaintiffs
James Walsh Attorneys for Plaintiffs
Tracy Walsh Attorney
Lance Wilson Attorney
Albert Moorman Attorney
Eric Hove Attorney
Reginaldo Villarreal Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: MATTHEW SQUIRES, et al vs. R.C. WEHMEYER CONSTRUCTION, INC., et al

Preview

Related Topics

Case Info

Parties