Preview
10/30/2020
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MATTHEW S. CONSTANTINO, ESQ. BAR#: 211916
2 MICHAEL R. ARELLANEZ, ESQ. BAR#: 317104
CLAPP, MORONEY, VUCINICH,
3 BEEMAN and SCHELEY
A PROFESSIONAL CORPORATION
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5860 Owens Drive, Suite 410
5 Pleasanton, CA 94588
Phone: (925) 734-0990 Fax: (925) 734-0888
6 Email: mconstantino@clappmoroney.com
Email: marellanez@clappmoroney.com
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8 Attorneys for Cross-Defendant, Tony Walker Painting, Inc.
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SUPERIOR COURT OF CALIFORNIA
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11 COUNTY OF PLACER
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W.J. KAVANAGH CONSTRUCTION CASE NO.: S-CV-0041701
13 MANAGEMENT, INC.,
NOTICE OF OPPOSITION AND
14 Plaintiffs, OPPOSITION TO MOTION TO ENFORCE
SETTLEMENT PURSUANT TO CCP 664.6;
15 v. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT;
16 JEREMY MAUEL, an individual; HEATHER DECLARATION OF MICHAEL R.
MAUEL, an individual; HANK MAUEL, an ARELLANEZ AND DECLARATION OF
17 individual; CINDY MAUEL, an individual; TONY WALKER
and DOES 1-10, inclusive, _________________________________________
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Defendants. Complaint Filed: August 27, 2018
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Trial Date: N/A
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AND RELATED CROSS-ACTIONS. Date: November 13, 2020
21 Time: 8:30 a.m.
Dept.: 3
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23 [Unlimited Civil Case]
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25 PLEASE TAKE NOTICE that on November 13, 2020 at 8:30 a.m., or as soon thereafter as
26 the matter may be heard in Department 3 of the above-entitled court, Cross-Defendant, TONY WALKER
27 PAINTING, INC. (“CROSS-DEFENDANT”) will appear and hereby oppose Cross-Complainants’,
28 JEREMY MAUEL, HEATHER MAUEL, HANK MAUEL, and CINDY MAUEL (collectively referred
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 to as, “CROSS-COMPLAINANTS”) motion filed pursuant to the provisions set forth in California Code
2 of Civil Procedure (“Code of Civ. Proc.”) Section 664.6. CROSS-COMPLAINANTS’S motion seeks to
3 enforce, by summary procedure, the terms of the settlement agreement against CROSS-DEFENDANT,
4 W.J. Kavanagh Construction Management, Inc. (“KAVANAGH”), and CROSS-COMPLAINANTS (all
5 collectively referred to as, “PARTIES”).
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PLEASE TAKE FURTHER NOTICE that on November 13, 2020, counsel for CROSS-
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DEFENDANT will appear telephonically.
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Dated: October 30, 2020 CLAPP, MORONEY, VUCINICH
9 BEEMAN and SCHELEY
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By:_________________________________
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13 MATTHEW S. CONSTANTINO, ESQ.
MICHAEL R. ARELLANEZ, ESQ.
14 Attorneys for Cross-Defendant, Tony Walker
Painting, Inc.
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 MEMORANDUM OF POINTS AND AUTHORITY IN OPPOSITION
2 I. INTRODUCTION
3 CROSS-COMPLAINANTS entered into a written settlement agreement (“SETTLEMENT
4 AGREEMENT”) with CROSS-DEFENDANT and KAVANAGH which was fully executed in May of
5 2020. The PARTIES then filed a stipulation and order on May 27, 2020 pursuant to Code of Civ. Proc.
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Section 664.6 for purposes of retaining jurisdiction to enforce the SETTLEMENT AGREMENT. In
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addition, dismissals were filed on or about June 12, 2020. CROSS-COMPLAINANTS have now filed a
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motion to seek enforcement of the SETTLEMENT AGREEMENT pursuant to Code of Civ. Proc. Section
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664.6.
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Pursuant to paragraphs 5.A.1 through 5.A.4 of the SETTLEMENT AGREEMENT, CROSS-
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DEFENDANT was to perform the following repair work (“REPAIR WORK”) at the Auburn, California
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home (“SUBJECT PROPERTY”) of CROSS-COMPLAINANTS:
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• Clean, sand, prime, and conversion varnish all cabinetry and doors originally
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painted by Walker, including, but not limited to, kitchen cabinets, doors, drawers,
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molding, beam and built-ins;
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• Paint corner to corner at walls where needed to effect a consistent, even wall color
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and texture;
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19 • Fix, patch, sand and repaint putty plugs for seemless transition on beams and
20 molding; and
21 • Fix over sprayed paint at cabinets and other surfaces, including, but not limited to,
22 flooring and door handles and hinges, along with any other visible surfaces. (See,
23 Declaration of Michael Arellanez - “Arellanez Decl.”, ¶ 3 & Exhibit A – The Fully
24 Executed Settlement Agreement.)
25 It was not until months after the SETTLEMENT AGREEMENT was reached that CROSS-
26 DEFENDANT’S counsel received requests for the REPAIR WORK to begin. However, CROSS-
27 DEFENDANT was unavailable at the time of the requests. (See, Declaration of Tony Walker, ¶ 4-7.)
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 On July 30, 2020, counsel for CROSS-DEFENDANT explained via email the unavailability was
2 due to other job commitments, but that CROSS-DEFENDANT would be available to perform the REPAIR
3 WORK. (See, Arellanez Decl., ¶ 4 & Exhibit B – July 30, 2020 Email Exchange.) CROSS-
4 DEFENDANT’S counsel then received an email on August 3, 2020 requesting CROSS-DEFENDANT to
5 begin the REPAIR WORK or they would “…proceed to a 664.6.” (See, Arellanez Decl., ¶ 5 & Exhibit C
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– August 3, 2020 Email Exchange.) However, no further communications were received until August 26,
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2020 regarding the REPAIR WORK.
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On August 26, 2020, counsel for CROSS-COMPLAINANTS alleged via email that CROSS-
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DEFENDANT had “…started the work without engaging and expert and it is horrible!” (See, Arellanez
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Decl., ¶ 6 & Exhibit D – August 26, 2020 Email Exchange.) However, CROSS-COMPLAINANTS allege
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that neither they nor CROSS-DEFENDANT abided by all the terms of the SETTLEMENT AGREEMENT.
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Pursuant to the paragraphs 5.B.3 and 5.B.9 of the SETTLEMENT AGREEMENT, CROSS-
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COMPLAINANTS were to select painting products and provide and maintain a staging area for the
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REPAIR WORK including a porta potty and sink with all necessary water hook-up equipment along with
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receptacles for wastewater and garbage. (See, Arellanez Decl., ¶ 3 & Exhibit A.) In addition, paragraphs
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5.B.8 and 5.B.11 required the REPAIR WORK to be guided by a report disclosed by CROSS-
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COMPLAINANTS’S expert, Jay Kuhre (“MR. KUHRE”) of ForensisGroup, and for the work to be
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19 approved by a neutral expert after inspecting the SUBJECT PROPERTY. (Id.) In addition, CROSS-
20 COMPLAINANTS and CROSS-DEFENDANT were to conduct a walk-through of the interior and exterior
21 of the SUBJECT PROPERTY to develop a room-by-room and exterior timeline for the REPAIR WORK
22 as outlined in paragraph 5.B.3. (Id.) However, many of these terms were somehow ignored.
23 CROSS-COMPLAINANTS allege that CROSS-DEFENDANT began the REPAIR WORK in
24 August of 2020 but that the work was not in compliance with the SETTLEMENT AGREEMENT. (See,
25 Arellanez Decl., ¶ 7 & Exhibit E at 5:21-26; 6:1-11 – Cross-Complainants’ Motion to Enforce Settlement.)
26 In addition, CROSS-COMPLAINANTS describe observing CROSS-DEFENDANT’S lack of presence
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 during a substantial part of the REPAIR WORK which allegedly resulted in damages to cabinet doors,
2 cabinet frames, and over spraying.
3 As such, CROSS-COMPLAINANTS and their counsel, requested that CROSS-DEFENDANT re-
4 perform the REPAIR WORK pursuant to the requirements of the SETTLEMENT AGREEMENT. (Id. at
5 5:8-26; and 6:1-11.) Following discussions, CROSS-COMPLAINANTS allege that CROSS-
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DEFENDANT agreed to the following:
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• To hire MR. KUHRE as the neutral expert approving the REPAIR WORK; and
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• To deliver $2,000.00 of the $2,927.40 owed for expert fees and costs (Id. at 6:5-25.)
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However, CROSS-COMPLAINANTS allege that CROSS-DEFENDANT failed to make any such
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payments for purposes of retaining MR. KUHRE. (Id.) As such, CROSS-COMPLAINANTS filed a
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Motion to Enforce Settlement.
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II. ARGUMENT
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1. Enforcement of the Settlement Agreement Is Not Support by Substantial Evidence
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The PARTIES to this action executed and filed a stipulation and order pursuant to Code of Civ.
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Proc. Section 664.6. The stipulation was filed to retain jurisdiction in this matter for purposes of enforcing
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the SETTTLEMENT AGREEMENT. Code of Civ. Proc. Section 664.6 provides that “[i]f parties to
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pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally
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19 before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment
20 pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over
21 the parties to enforce the settlement until performance in full of the terms of the settlement.”
22 CROSS-COMPLAINANTS cite to City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 760, to
23 argue the terms of the SETTLEMENT AGREEMENT meet the requirements set forth in Code of Civ.
24 Proc. Section 664.6. However, the CROSS-COMPLAINANTS’ citation is to the procedural facts of the
25 case and holding of the lower Court that was overturned in City of Fresno. The Court in the City of Fresno
26 determined that an unsigned stipulation entered at the time of a depositions and reduced to writing by a
27 certified shorthand reporter did not satisfy the provisions of Code of Civ. Proc. Section 664.6. (Id. at 760
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 and 762.) In addition, the holding in City of Fresno is limited to facts regarding an unsigned stipulation
2 since the Court did not “…consider the other points urged by appellant.” (Id. at 762.) As such, this case
3 would not be applicable to this matter as argued by CROSS-COMPLAINANTS.
4 In addition, CROSS-COMPLAINANTS’ Motion to Enforce Settlement fails to include all salient
5 facts and is not supported by substantial evidence. Enforcement of a settlement agreement pursuant to
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Code of Civ. Proc. Section 664.6 must be supported by substantial evidence. (Murphy v. Padilla (1996) 42
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Cal.App.4th 707, 711; see also, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.)
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Here, CROSS-COMPLAINANTS failed to offer photographic evidence of the REPAIR WORK or
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damages. In addition, CROSS-COMPLAINANTS failed to provide any context regarding when the work
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began and why the REPAIR WORK observed by CROSS-COMPLAINANTS was not stopped. These are
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important considerations that CROSS-COMPLAINANTS chose to ignore or not explain.
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When evaluating the substantial evidence, the Court “…should consider whether (1) the material
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terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties
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regarding their understanding of those terms, and (3) the parties expressly acknowledged their
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understanding of and agreement to be bound by those terms.” (In re Marriage of Assemi (1994) 7 Cal.4th
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896, 911, cited by Weddington Productions, Inc., 60 Cal.App.4th at 815, regarding substantial evidence.)
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The facts alleged by CROSS-COMPLAINANTS indicate an issue with the interpretation of the
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19 SETTLEMENT AGREEMENT.
20 CROSS-COMPLAINANTS requested CROSS-DEFENDANT begin the REPAIR WORK and
21 granted CROSS-DEFENDANT access to the SUBJET PROPERTY. This was done despite CROSS-
22 COMPLAINANTS claiming the terms of the SETTLEMENT AGREEMENT were well known and
23 repeated in communications. Thus, CROSS-COMPLAINANTS allegations are confusing and not
24 supported by substantial evidence.
25 CROSS-COMPLAINANTS claim the terms of the SETTLEMENT AGREEMENT are clear but
26 did not select a neutral expert and inspect the SUBJECT PROJECT prior to the REPAIR WORK. CROSS-
27 COMPLAINANTS should not be allowed to request REPAIR WORK and then seek enforcement of terms
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 they choose to ignore. CROSS-COMPLAINANTS ignored paragraphs 5.B.3, 5.B.8, 5.B.9, S.B.11 of the
2 SETTLEMENT AGREEMENT requiring inspections, coordination of the REPAIR WORK and approval
3 by a neutral expert. It was not until the cabinetry was refinished that CROSS-COMPLAINANTS quickly
4 objected to the REPAIR WORK.
5 2. Cross-Complainants Modified The Settlement Agreement
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While Code of Civ. Proc. Section 664.6 provides only for enforcement of settlement contracts, the
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Courts treat settlement agreements and contracts as the same in both the settlement and the non-settlement
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contexts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.) Under California Civil
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Code Section 1698(b), “A contract in writing may be modified by an oral agreement to the extent that the
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oral agreement is executed by the parties.” Here, CROSS-COMPLAINANTS’ own actions and requests
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for performance may have modified the settlement agreement. A contract may be altered by executing an
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oral agreement with sufficient consideration for the oral modification and where full performance by the
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promisee would suffice to render the agreement executed. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974)
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10 Cal.3d 665, 673.) As explained above, CROSS-COMPLAINANTS waived enforcement of the
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settlement terms for the promise that CROSS-DEFENDANT would begin the REPAIR WORK which he
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performed. In addition, there was a second modification to the agreement which did not include all of the
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original terms of the SETTLEMENT AGREEMENT. CROSS-COMPLAINANTS specifically negotiated
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19 with CROSS-DEFENDANT to hire MR. KUHRE as the neutral expert, who had previously inspected the
20 SUBJECT PROPERTY, but the agreement did not include the use of his report.
21 As such, CROSS-COMPLAINANTS’ actions have frustrated the entire settlement. They should
22 not be allowed to sit idly by as REPAIR WORK is performed and then object to the work and seek
23 enforcement of the original SETTLEMENT AGREEMENT. In addition, they are requesting the Court to
24 add new terms to the SETTLEMENT AGREEMENT regarding the replacing and repairing of the
25 cabinetry.
26 //
27 //
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 3. Enforcement of the Settlement Agreement Would Not Be Equitable
2 In addition, CROSS-COMPLAINANTS are seeking relief despite coming before the Court with
3 unclean hands. The doctrine of unclean hands applies where it would be inequitable to grant the CROSS-
4 COMPLAINANTS relief because of their inequitable conduct. (Dickson, Carlson & Campillo v. Pole
5 (2000) 83 Cal.App.4th 436, 446–447.) Here, CROSS-COMPLAINANTS sat idly by and said nothing
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regarding the REPAIR WORK until August 26, 2020. If CROSS-COMPLAINANTS are seeking full
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enforcement of the SETTLEMENT AGREEMENT, any relief should be tailored in favor of CROSS-
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DEFENDANT.
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III. CONCLUSION
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Enforcement of the SETTLEMENT AGREEMENT would be premature and unfair. CROSS-
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DEFENDANT believes the PARTIES are capable of working out this issue without Court intervention.
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An order granting CROSS-COMPLAINANTS’ demands would reward their behavior and encourage
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others to ignore settlement terms and then seek full enforcement at a most convenient time. As such,
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CROSS-DEFENDANT is able and willing to perform without the need for a Court Order.
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Dated: October 30, 2020 CLAPP, MORONEY, VUCINICH
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BEEMAN and SCHELEY
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19 By:_________________________________
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MATTHEW S. CONSTANTINO, ESQ.
21 MICHAEL R. ARELLANEZ, ESQ.
Attorneys for Cross-Defendant, Tony Walker
22 Painting, Inc.
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 DECLARATION OF MICHAEL ARELLANEZ
2 I, Michael Arellanez, declare as follows:
3 1. I am licensed to practice law in the State of California and Attorney at the law office of
4 CLAPP MORONEY VUCINICH BEEMAN SCHELEY which is representing the Cross-Defendant,
5 TONY WALKER PAINTING, INC. (“CROSS-DEFENDANT”) in the above-captioned action.
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2. Except as to matters stated on information and belief, which I am informed and believe to
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be true, I have personal knowledge of the matters set forth herein and if called as a witness could and would
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competently testify thereto.
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3. In May of 2020, CROSS-DEFENDANT, Cross-Complainants’, JEREMY MAUEL,
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HEATHER MAUEL, HANK MAUEL, CINDY MAUEL (collectively referred to as, “CROSS-
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COMPLAINANTS”), and W.J. Kavanagh Construction Management, Inc. (“KAVANAGH”) entered into
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a written settlement agreement. The settlement agreement included terms governing the repair work in this
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matter. Attached hereto and incorporated herein by reference as Exhibit A is a true and correct copy of
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The Fully Executed Settlement Agreement.
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4. On July 30, 2020, my office explained via email that CROSS-DEFENDANT’S
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unavailability was due to other job commitments, but that he would be available to perform the agreed to
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repair work. Attached hereto and incorporated herein by reference as Exhibit B is a true and correct copy
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19 of the July 30, 2020 Email Exchange.
20 5. My office received an email on August 3, 2020 requesting CROSS-DEFENDANT to begin
21 the repair work or CROSS-COMPLAINANT would “…proceed to a 664.6.” Attached hereto and
22 incorporated herein by reference as Exhibit C is a true and correct copy of the August 3, 2020 Email
23 Exchange.
24 6. On August 26, 2020, counsel for CROSS-COMPLAINANTS alleged via email that
25 CROSS-DEFENANT had “…started the work without engaging and expert and it is horrible!” Attached
26 hereto and incorporated herein by reference as Exhibit D is a true and correct copy of the August 26, 2020
27 Email Exchange.
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
1 7. CROSS-COMPLAINANTS allege in their motion that CROSS-DEFENDANT began the
2 repair work in August of 2020 but that the work was not in compliance with the SETTLEMENT
3 AGREEMENT. Attached hereto and incorporated herein by reference as Exhibit E is a true and correct
4 copy of Cross-Complainants’ Motion to Enforce Settlement.
5 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
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and correct, and that this declaration was executed on this 30th day of October, 2020 in Pleasant Hill,
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California.
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_____________________________
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Michael R. Arellanez
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NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND
DECLARATION OF TONY WALKER
DocuSign Envelope ID: A214C412-156C-4A7A-8FCB-7C858A97C907
1 Declaration of Tony Walker
2 I, Tony Walker, declare as follows:
3 1. I am the owner of Tony Walker Painting, Inc. which was named as a Cross-Defendant in a
4 Cross-Complaint filed in the Superior Court of Placer County by W.J. Kavanagh Construction
5 Management, Inc. in Case Number S-CV-0041701.
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2. Tony Walker Painting, Inc. is being represented by attorneys Matthew S. Constantino, Esq.
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and Michael R. Arellanez, Esq. of Clapp Moroney Vucinich Beeman and Scheley.
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3. Except as to matters stated on information and belief, which I am informed and believe to
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be true, I have personal knowledge of the matters set forth herein and if called as a witness could and would
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competently testify thereto.
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4. I am no longer residing at my residence and currently living at an Extended Stay America
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hotel at the cost of $2,000 per month. Due to COVID-19 orders the location that I am currently residing
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at is housing homeless individuals who are at times disruptive and violent. I am currently in need of
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relocating but have not been able to locate more suitable and affordable housing at this time.
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5. In addition, I am currently experiencing personal difficulties and going through an
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extremely costly and contentious divorce with my spouse.
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6. I am currently trying to manage my business affairs while going through a divorce and
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19 attempting to find new housing. I have been unavailable due to current demands in both my work and
20 personal lives.
21 7. In August of 2020, I began repair work at the Auburn, California home of Jeremy Mauel,
22 Heather Mauel, Hank Mauel, and Cindy Mauel (collectively referred to as the, “Mauels”). I attempted to
23 perform the work at the request of the Mauels, who during such time, made the work difficult and
24 unbearable. While performing the repair work I was observed by the Mauels who have now taken issue
25 with the work and services provided.
26 //
27 //
28 //
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DECLARATION OF TONY WALKER
DocuSign Envelope ID: A214C412-156C-4A7A-8FCB-7C858A97C907
1 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
10/30/2020
2 and correct and that this declaration was executed on this _____ day of October, 2020.
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4 ____________________________
5 Tony Walker
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DECLARATION OF TONY WALKER
Exhibit A
Exhibit A
DATEI}: 4 -';zg , zozo JERE.h,II'MAUEL
IVTY MAUEI,
HE.A'I'H[iR fuTA,.[JE[,
A]'HER MAUH[,
!}A'I.HI}: _,702{t I,IANK I\4AUEL
I.IANK iI,I
CTN'DY fuIAIJEL
CINDY
Approved as to Frrrn: A RONOW ITZ SKII}MORIJ LY ON
I}A'I'ED: ,2020
Attorney for l) ${ftd antsi Crcss-
Conrplainants JERtrM EY MA [.i EL,
IIEATHIiR MAUEL, I-IANK L4AU[L. and
CTNDY MAUtrL
Pagc 1 B of'20
* t]+?7{i}
Kavaritgh r'. il,faucls -'Global SAI{ tniti*ts:
DATED, 5/.3/ ,2020
Approved as to Fonn: CLAPP. MORONEY. VUClNICH.
BEEMA.i"\f & SCHELEY
DATED:------- 5/5 . 2020
MATTHEW S. CONSTANTINO. ESQ.
Attorneys for Cross-Defendant TONY
WALKER PAINTING, INC.
Page 20 of20
Ka1anagh \". \laucls - Global SAR-04-2i-20 lni1ials:�-ztj.
Exhibit B
From: Matt Constantino
To: klyon@asilaw.org
Cc: kjohnson@asilaw.org
Subject: RE: Mauel"s repair work
Date: Thursday, July 30, 2020 11:03:01 AM
Attachments: image001.png
I just spoke with Tony. He has been out of town on a job but is now back and ready to start the
repair work. He said he has not received any email/communication from the Mauls. Please either
provide me with the Mauls’ contact info, which I will forward to Tony, or have the Mauls call Tony.
His cell is (916) 284-5516.
Matthew S. Constantino | Bio
Partner
tel: 925-734-0990 | fax: 925-734-0888 mconstantino@clappmoroney.com
5860 Owens Drive, Suite 410, Pleasanton, CA 94588
San Francisco | Peninsula | East Bay/Central Valley | San Jose/Monterey | Sacramento | Los
Angeles
Visit our website at www.clappmoroney.com for additional information on Clapp Moroney
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From: Kathleen Lyon
Sent: Monday, July 27, 2020 5:16 PM
To: Matt Constantino
Cc: Katrina Johnson
Subject: RE: Mauel's repair work
Matt
I know you are trying but it does not appear to be working. Have you heard anything at all from him?
Best Regards,
Kathleen C. Lyon
Aronowitz Skidmore Lyon
(530) 823-9736
klyon@asilaw.org
Exhibit B
From: Matt Constantino
Sent: Monday, July 27, 2020 5:03 PM
To: Kathleen Lyon
Cc: Katrina Johnson
Subject: RE: Mauel's repair work
I have followed up with Mr. Walker.
From: Kathleen Lyon
Sent: Monday, July 27, 2020 4:09 PM
To: Matt Constantino
Cc: Katrina Johnson
Subject: Mauel's repair work
Matt
We are instructed to file a motion to enforce settlement agreement unless Mr. Walker contacts the
Mauels by tomorrow and sets an appointment within a week.
Best Regards,
Kathleen C. Lyon
Aronowitz Skidmore Lyon
A Professional Law Corporation
200 Auburn Folsom Road, Ste. 305
Auburn, CA 95603-5046
Telephone: (530) 823-9736
Facsimile: (530) 823-5241
klyon@asilaw.org
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CONFIDENTIAL, MAY BE PRIVILEGED (ATTORNEY-CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO
PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF ANY READER OF THIS COMMUNICATION
IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS RESPONSIBLE FOR
DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE,
DISCLOSURE OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE
RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823-9736,
AND DELETE THE ORIGINAL MESSAGE FROM YOUR ELECTRONIC MAIL BOX.
Exhibit C
Michael R. Arellanez
From: Kathleen Lyon
Sent: Monday, August 3, 2020 2:15 PM
To: Matt Constantino
Subject: Mauel v. Walker
Matt
I guess we need to proceed to a 664.6. Tony has not contacted Mauels at all. He is in complete breach and the Mauels
have the right to cure by having someone else do the work.
Best Regards,
Kathleen C. Lyon
Aronowitz Skidmore Lyon
A Professional Law Corporation
200 Auburn Folsom Road, Ste. 305
Auburn, CA 95603‐5046
Telephone: (530) 823‐9736
Facsimile: (530) 823‐5241
klyon@asilaw.org
CAUTION: THE INFORMATION CONTAINED IN THIS ELECTRONIC COMMUNICATION AND ANY ACCOMPANYING
DOCUMENTS IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY BE CONFIDENTIAL, MAY BE PRIVILEGED
(ATTORNEY‐CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF
ANY READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS
RESPONSIBLE FOR DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE, DISCLOSURE
OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823‐9736, AND DELETE THE ORIGINAL MESSAGE FROM YOUR
ELECTRONIC MAIL BOX.
Exhibit C
1
Exhibit D
Michael R. Arellanez
From: Kathleen Lyon
Sent: Wednesday, August 26, 2020 2:35 PM
To: Matt Constantino
Subject: Mauel residence
Matt
Tony started the work without engaging and expert and it is horrible! He did not take the cabinets to his shop either. We
plan to go in on 664.6 to have a judgment against him to have the work done by real paintes.
Best Regards,
Kathleen C. Lyon
Aronowitz Skidmore Lyon
A Professional Law Corporation
200 Auburn Folsom Road, Ste. 305
Auburn, CA 95603-5046
Telephone: (530) 823-9736
Facsimile: (530) 823-5241
klyon@asilaw.org
CAUTION: THE INFORMATION CONTAINED IN THIS ELECTRONIC COMMUNICATION AND ANY ACCOMPANYING
DOCUMENTS IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY BE CONFIDENTIAL, MAY BE PRIVILEGED
(ATTORNEY-CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF
ANY READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS
RESPONSIBLE FOR DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE, DISCLOSURE
OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823-9736, AND DELETE THE ORIGINAL MESSAGE FROM YOUR
ELECTRONIC MAIL BOX.
1
Exhibit D
Exhibit E
KATHLEEN C. LYON, CSB #236224
klyon@asilaw.org
KATRINA L. JO HNSO N, CSB #213479
2 kjohnson@asilaw.org
ARONOWITZ SKIDMORE LYON
3 A Professional Law Corporation
200 Auburn Folsom Road, Suite 305
4 Auburn, Californ ia 95603
Telephone: (530) 823-9736
5 Fax: (530) 823-5241
6 Attorneys for Defendants
and Cross-complainant
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF PLACER
M
0
10 W.J. KAVANAGH CONSTRUCTION Case No .: S-CV-0041701
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MANAGEMENT, INC.,
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10/30/2020 1 MATTHEW S. CONSTANTINO, ESQ. BAR#: 211916 2 MICHAEL R. ARELLANEZ, ESQ. BAR#: 317104 CLAPP, MORONEY, VUCINICH, 3 BEEMAN and SCHELEY A PROFESSIONAL CORPORATION 4 5860 Owens Drive, Suite 410 5 Pleasanton, CA 94588 Phone: (925) 734-0990 Fax: (925) 734-0888 6 Email: mconstantino@clappmoroney.com Email: marellanez@clappmoroney.com 7 8 Attorneys for Cross-Defendant, Tony Walker Painting, Inc. 9 SUPERIOR COURT OF CALIFORNIA 10 11 COUNTY OF PLACER 12 W.J. KAVANAGH CONSTRUCTION CASE NO.: S-CV-0041701 13 MANAGEMENT, INC., NOTICE OF OPPOSITION AND 14 Plaintiffs, OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; 15 v. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; 16 JEREMY MAUEL, an individual; HEATHER DECLARATION OF MICHAEL R. MAUEL, an individual; HANK MAUEL, an ARELLANEZ AND DECLARATION OF 17 individual; CINDY MAUEL, an individual; TONY WALKER and DOES 1-10, inclusive, _________________________________________ 18 Defendants. Complaint Filed: August 27, 2018 19 Trial Date: N/A 20 AND RELATED CROSS-ACTIONS. Date: November 13, 2020 21 Time: 8:30 a.m. Dept.: 3 22 23 [Unlimited Civil Case] 24 25 PLEASE TAKE NOTICE that on November 13, 2020 at 8:30 a.m., or as soon thereafter as 26 the matter may be heard in Department 3 of the above-entitled court, Cross-Defendant, TONY WALKER 27 PAINTING, INC. (“CROSS-DEFENDANT”) will appear and hereby oppose Cross-Complainants’, 28 JEREMY MAUEL, HEATHER MAUEL, HANK MAUEL, and CINDY MAUEL (collectively referred 1 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 to as, “CROSS-COMPLAINANTS”) motion filed pursuant to the provisions set forth in California Code 2 of Civil Procedure (“Code of Civ. Proc.”) Section 664.6. CROSS-COMPLAINANTS’S motion seeks to 3 enforce, by summary procedure, the terms of the settlement agreement against CROSS-DEFENDANT, 4 W.J. Kavanagh Construction Management, Inc. (“KAVANAGH”), and CROSS-COMPLAINANTS (all 5 collectively referred to as, “PARTIES”). 6 PLEASE TAKE FURTHER NOTICE that on November 13, 2020, counsel for CROSS- 7 DEFENDANT will appear telephonically. 8 Dated: October 30, 2020 CLAPP, MORONEY, VUCINICH 9 BEEMAN and SCHELEY 10 11 By:_________________________________ 12 13 MATTHEW S. CONSTANTINO, ESQ. MICHAEL R. ARELLANEZ, ESQ. 14 Attorneys for Cross-Defendant, Tony Walker Painting, Inc. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 MEMORANDUM OF POINTS AND AUTHORITY IN OPPOSITION 2 I. INTRODUCTION 3 CROSS-COMPLAINANTS entered into a written settlement agreement (“SETTLEMENT 4 AGREEMENT”) with CROSS-DEFENDANT and KAVANAGH which was fully executed in May of 5 2020. The PARTIES then filed a stipulation and order on May 27, 2020 pursuant to Code of Civ. Proc. 6 Section 664.6 for purposes of retaining jurisdiction to enforce the SETTLEMENT AGREMENT. In 7 addition, dismissals were filed on or about June 12, 2020. CROSS-COMPLAINANTS have now filed a 8 motion to seek enforcement of the SETTLEMENT AGREEMENT pursuant to Code of Civ. Proc. Section 9 664.6. 10 Pursuant to paragraphs 5.A.1 through 5.A.4 of the SETTLEMENT AGREEMENT, CROSS- 11 DEFENDANT was to perform the following repair work (“REPAIR WORK”) at the Auburn, California 12 home (“SUBJECT PROPERTY”) of CROSS-COMPLAINANTS: 13 • Clean, sand, prime, and conversion varnish all cabinetry and doors originally 14 painted by Walker, including, but not limited to, kitchen cabinets, doors, drawers, 15 molding, beam and built-ins; 16 • Paint corner to corner at walls where needed to effect a consistent, even wall color 17 and texture; 18 19 • Fix, patch, sand and repaint putty plugs for seemless transition on beams and 20 molding; and 21 • Fix over sprayed paint at cabinets and other surfaces, including, but not limited to, 22 flooring and door handles and hinges, along with any other visible surfaces. (See, 23 Declaration of Michael Arellanez - “Arellanez Decl.”, ¶ 3 & Exhibit A – The Fully 24 Executed Settlement Agreement.) 25 It was not until months after the SETTLEMENT AGREEMENT was reached that CROSS- 26 DEFENDANT’S counsel received requests for the REPAIR WORK to begin. However, CROSS- 27 DEFENDANT was unavailable at the time of the requests. (See, Declaration of Tony Walker, ¶ 4-7.) 28 3 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 On July 30, 2020, counsel for CROSS-DEFENDANT explained via email the unavailability was 2 due to other job commitments, but that CROSS-DEFENDANT would be available to perform the REPAIR 3 WORK. (See, Arellanez Decl., ¶ 4 & Exhibit B – July 30, 2020 Email Exchange.) CROSS- 4 DEFENDANT’S counsel then received an email on August 3, 2020 requesting CROSS-DEFENDANT to 5 begin the REPAIR WORK or they would “…proceed to a 664.6.” (See, Arellanez Decl., ¶ 5 & Exhibit C 6 – August 3, 2020 Email Exchange.) However, no further communications were received until August 26, 7 2020 regarding the REPAIR WORK. 8 On August 26, 2020, counsel for CROSS-COMPLAINANTS alleged via email that CROSS- 9 DEFENDANT had “…started the work without engaging and expert and it is horrible!” (See, Arellanez 10 Decl., ¶ 6 & Exhibit D – August 26, 2020 Email Exchange.) However, CROSS-COMPLAINANTS allege 11 that neither they nor CROSS-DEFENDANT abided by all the terms of the SETTLEMENT AGREEMENT. 12 Pursuant to the paragraphs 5.B.3 and 5.B.9 of the SETTLEMENT AGREEMENT, CROSS- 13 COMPLAINANTS were to select painting products and provide and maintain a staging area for the 14 REPAIR WORK including a porta potty and sink with all necessary water hook-up equipment along with 15 receptacles for wastewater and garbage. (See, Arellanez Decl., ¶ 3 & Exhibit A.) In addition, paragraphs 16 5.B.8 and 5.B.11 required the REPAIR WORK to be guided by a report disclosed by CROSS- 17 COMPLAINANTS’S expert, Jay Kuhre (“MR. KUHRE”) of ForensisGroup, and for the work to be 18 19 approved by a neutral expert after inspecting the SUBJECT PROPERTY. (Id.) In addition, CROSS- 20 COMPLAINANTS and CROSS-DEFENDANT were to conduct a walk-through of the interior and exterior 21 of the SUBJECT PROPERTY to develop a room-by-room and exterior timeline for the REPAIR WORK 22 as outlined in paragraph 5.B.3. (Id.) However, many of these terms were somehow ignored. 23 CROSS-COMPLAINANTS allege that CROSS-DEFENDANT began the REPAIR WORK in 24 August of 2020 but that the work was not in compliance with the SETTLEMENT AGREEMENT. (See, 25 Arellanez Decl., ¶ 7 & Exhibit E at 5:21-26; 6:1-11 – Cross-Complainants’ Motion to Enforce Settlement.) 26 In addition, CROSS-COMPLAINANTS describe observing CROSS-DEFENDANT’S lack of presence 27 28 4 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 during a substantial part of the REPAIR WORK which allegedly resulted in damages to cabinet doors, 2 cabinet frames, and over spraying. 3 As such, CROSS-COMPLAINANTS and their counsel, requested that CROSS-DEFENDANT re- 4 perform the REPAIR WORK pursuant to the requirements of the SETTLEMENT AGREEMENT. (Id. at 5 5:8-26; and 6:1-11.) Following discussions, CROSS-COMPLAINANTS allege that CROSS- 6 DEFENDANT agreed to the following: 7 • To hire MR. KUHRE as the neutral expert approving the REPAIR WORK; and 8 • To deliver $2,000.00 of the $2,927.40 owed for expert fees and costs (Id. at 6:5-25.) 9 However, CROSS-COMPLAINANTS allege that CROSS-DEFENDANT failed to make any such 10 payments for purposes of retaining MR. KUHRE. (Id.) As such, CROSS-COMPLAINANTS filed a 11 Motion to Enforce Settlement. 12 II. ARGUMENT 13 1. Enforcement of the Settlement Agreement Is Not Support by Substantial Evidence 14 The PARTIES to this action executed and filed a stipulation and order pursuant to Code of Civ. 15 Proc. Section 664.6. The stipulation was filed to retain jurisdiction in this matter for purposes of enforcing 16 the SETTTLEMENT AGREEMENT. Code of Civ. Proc. Section 664.6 provides that “[i]f parties to 17 pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally 18 19 before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment 20 pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over 21 the parties to enforce the settlement until performance in full of the terms of the settlement.” 22 CROSS-COMPLAINANTS cite to City of Fresno v. Maroot (1987) 189 Cal.App.3d 755, 760, to 23 argue the terms of the SETTLEMENT AGREEMENT meet the requirements set forth in Code of Civ. 24 Proc. Section 664.6. However, the CROSS-COMPLAINANTS’ citation is to the procedural facts of the 25 case and holding of the lower Court that was overturned in City of Fresno. The Court in the City of Fresno 26 determined that an unsigned stipulation entered at the time of a depositions and reduced to writing by a 27 certified shorthand reporter did not satisfy the provisions of Code of Civ. Proc. Section 664.6. (Id. at 760 28 5 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 and 762.) In addition, the holding in City of Fresno is limited to facts regarding an unsigned stipulation 2 since the Court did not “…consider the other points urged by appellant.” (Id. at 762.) As such, this case 3 would not be applicable to this matter as argued by CROSS-COMPLAINANTS. 4 In addition, CROSS-COMPLAINANTS’ Motion to Enforce Settlement fails to include all salient 5 facts and is not supported by substantial evidence. Enforcement of a settlement agreement pursuant to 6 Code of Civ. Proc. Section 664.6 must be supported by substantial evidence. (Murphy v. Padilla (1996) 42 7 Cal.App.4th 707, 711; see also, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.) 8 Here, CROSS-COMPLAINANTS failed to offer photographic evidence of the REPAIR WORK or 9 damages. In addition, CROSS-COMPLAINANTS failed to provide any context regarding when the work 10 began and why the REPAIR WORK observed by CROSS-COMPLAINANTS was not stopped. These are 11 important considerations that CROSS-COMPLAINANTS chose to ignore or not explain. 12 When evaluating the substantial evidence, the Court “…should consider whether (1) the material 13 terms of the settlement were explicitly defined, (2) the supervising judicial officer questioned the parties 14 regarding their understanding of those terms, and (3) the parties expressly acknowledged their 15 understanding of and agreement to be bound by those terms.” (In re Marriage of Assemi (1994) 7 Cal.4th 16 896, 911, cited by Weddington Productions, Inc., 60 Cal.App.4th at 815, regarding substantial evidence.) 17 The facts alleged by CROSS-COMPLAINANTS indicate an issue with the interpretation of the 18 19 SETTLEMENT AGREEMENT. 20 CROSS-COMPLAINANTS requested CROSS-DEFENDANT begin the REPAIR WORK and 21 granted CROSS-DEFENDANT access to the SUBJET PROPERTY. This was done despite CROSS- 22 COMPLAINANTS claiming the terms of the SETTLEMENT AGREEMENT were well known and 23 repeated in communications. Thus, CROSS-COMPLAINANTS allegations are confusing and not 24 supported by substantial evidence. 25 CROSS-COMPLAINANTS claim the terms of the SETTLEMENT AGREEMENT are clear but 26 did not select a neutral expert and inspect the SUBJECT PROJECT prior to the REPAIR WORK. CROSS- 27 COMPLAINANTS should not be allowed to request REPAIR WORK and then seek enforcement of terms 28 6 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 they choose to ignore. CROSS-COMPLAINANTS ignored paragraphs 5.B.3, 5.B.8, 5.B.9, S.B.11 of the 2 SETTLEMENT AGREEMENT requiring inspections, coordination of the REPAIR WORK and approval 3 by a neutral expert. It was not until the cabinetry was refinished that CROSS-COMPLAINANTS quickly 4 objected to the REPAIR WORK. 5 2. Cross-Complainants Modified The Settlement Agreement 6 While Code of Civ. Proc. Section 664.6 provides only for enforcement of settlement contracts, the 7 Courts treat settlement agreements and contracts as the same in both the settlement and the non-settlement 8 contexts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.) Under California Civil 9 Code Section 1698(b), “A contract in writing may be modified by an oral agreement to the extent that the 10 oral agreement is executed by the parties.” Here, CROSS-COMPLAINANTS’ own actions and requests 11 for performance may have modified the settlement agreement. A contract may be altered by executing an 12 oral agreement with sufficient consideration for the oral modification and where full performance by the 13 promisee would suffice to render the agreement executed. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 14 10 Cal.3d 665, 673.) As explained above, CROSS-COMPLAINANTS waived enforcement of the 15 settlement terms for the promise that CROSS-DEFENDANT would begin the REPAIR WORK which he 16 performed. In addition, there was a second modification to the agreement which did not include all of the 17 original terms of the SETTLEMENT AGREEMENT. CROSS-COMPLAINANTS specifically negotiated 18 19 with CROSS-DEFENDANT to hire MR. KUHRE as the neutral expert, who had previously inspected the 20 SUBJECT PROPERTY, but the agreement did not include the use of his report. 21 As such, CROSS-COMPLAINANTS’ actions have frustrated the entire settlement. They should 22 not be allowed to sit idly by as REPAIR WORK is performed and then object to the work and seek 23 enforcement of the original SETTLEMENT AGREEMENT. In addition, they are requesting the Court to 24 add new terms to the SETTLEMENT AGREEMENT regarding the replacing and repairing of the 25 cabinetry. 26 // 27 // 28 7 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 3. Enforcement of the Settlement Agreement Would Not Be Equitable 2 In addition, CROSS-COMPLAINANTS are seeking relief despite coming before the Court with 3 unclean hands. The doctrine of unclean hands applies where it would be inequitable to grant the CROSS- 4 COMPLAINANTS relief because of their inequitable conduct. (Dickson, Carlson & Campillo v. Pole 5 (2000) 83 Cal.App.4th 436, 446–447.) Here, CROSS-COMPLAINANTS sat idly by and said nothing 6 regarding the REPAIR WORK until August 26, 2020. If CROSS-COMPLAINANTS are seeking full 7 enforcement of the SETTLEMENT AGREEMENT, any relief should be tailored in favor of CROSS- 8 DEFENDANT. 9 III. CONCLUSION 10 Enforcement of the SETTLEMENT AGREEMENT would be premature and unfair. CROSS- 11 DEFENDANT believes the PARTIES are capable of working out this issue without Court intervention. 12 An order granting CROSS-COMPLAINANTS’ demands would reward their behavior and encourage 13 others to ignore settlement terms and then seek full enforcement at a most convenient time. As such, 14 CROSS-DEFENDANT is able and willing to perform without the need for a Court Order. 15 16 Dated: October 30, 2020 CLAPP, MORONEY, VUCINICH 17 BEEMAN and SCHELEY 18 19 By:_________________________________ 20 MATTHEW S. CONSTANTINO, ESQ. 21 MICHAEL R. ARELLANEZ, ESQ. Attorneys for Cross-Defendant, Tony Walker 22 Painting, Inc. 23 24 25 26 27 28 8 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 DECLARATION OF MICHAEL ARELLANEZ 2 I, Michael Arellanez, declare as follows: 3 1. I am licensed to practice law in the State of California and Attorney at the law office of 4 CLAPP MORONEY VUCINICH BEEMAN SCHELEY which is representing the Cross-Defendant, 5 TONY WALKER PAINTING, INC. (“CROSS-DEFENDANT”) in the above-captioned action. 6 2. Except as to matters stated on information and belief, which I am informed and believe to 7 be true, I have personal knowledge of the matters set forth herein and if called as a witness could and would 8 competently testify thereto. 9 3. In May of 2020, CROSS-DEFENDANT, Cross-Complainants’, JEREMY MAUEL, 10 HEATHER MAUEL, HANK MAUEL, CINDY MAUEL (collectively referred to as, “CROSS- 11 COMPLAINANTS”), and W.J. Kavanagh Construction Management, Inc. (“KAVANAGH”) entered into 12 a written settlement agreement. The settlement agreement included terms governing the repair work in this 13 matter. Attached hereto and incorporated herein by reference as Exhibit A is a true and correct copy of 14 The Fully Executed Settlement Agreement. 15 4. On July 30, 2020, my office explained via email that CROSS-DEFENDANT’S 16 unavailability was due to other job commitments, but that he would be available to perform the agreed to 17 repair work. Attached hereto and incorporated herein by reference as Exhibit B is a true and correct copy 18 19 of the July 30, 2020 Email Exchange. 20 5. My office received an email on August 3, 2020 requesting CROSS-DEFENDANT to begin 21 the repair work or CROSS-COMPLAINANT would “…proceed to a 664.6.” Attached hereto and 22 incorporated herein by reference as Exhibit C is a true and correct copy of the August 3, 2020 Email 23 Exchange. 24 6. On August 26, 2020, counsel for CROSS-COMPLAINANTS alleged via email that 25 CROSS-DEFENANT had “…started the work without engaging and expert and it is horrible!” Attached 26 hereto and incorporated herein by reference as Exhibit D is a true and correct copy of the August 26, 2020 27 Email Exchange. 28 9 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER 1 7. CROSS-COMPLAINANTS allege in their motion that CROSS-DEFENDANT began the 2 repair work in August of 2020 but that the work was not in compliance with the SETTLEMENT 3 AGREEMENT. Attached hereto and incorporated herein by reference as Exhibit E is a true and correct 4 copy of Cross-Complainants’ Motion to Enforce Settlement. 5 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 6 and correct, and that this declaration was executed on this 30th day of October, 2020 in Pleasant Hill, 7 California. 8 9 _____________________________ 10 Michael R. Arellanez 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF MICHAEL R. ARELLANEZ AND DECLARATION OF TONY WALKER DocuSign Envelope ID: A214C412-156C-4A7A-8FCB-7C858A97C907 1 Declaration of Tony Walker 2 I, Tony Walker, declare as follows: 3 1. I am the owner of Tony Walker Painting, Inc. which was named as a Cross-Defendant in a 4 Cross-Complaint filed in the Superior Court of Placer County by W.J. Kavanagh Construction 5 Management, Inc. in Case Number S-CV-0041701. 6 2. Tony Walker Painting, Inc. is being represented by attorneys Matthew S. Constantino, Esq. 7 and Michael R. Arellanez, Esq. of Clapp Moroney Vucinich Beeman and Scheley. 8 3. Except as to matters stated on information and belief, which I am informed and believe to 9 be true, I have personal knowledge of the matters set forth herein and if called as a witness could and would 10 competently testify thereto. 11 4. I am no longer residing at my residence and currently living at an Extended Stay America 12 hotel at the cost of $2,000 per month. Due to COVID-19 orders the location that I am currently residing 13 at is housing homeless individuals who are at times disruptive and violent. I am currently in need of 14 relocating but have not been able to locate more suitable and affordable housing at this time. 15 5. In addition, I am currently experiencing personal difficulties and going through an 16 extremely costly and contentious divorce with my spouse. 17 6. I am currently trying to manage my business affairs while going through a divorce and 18 19 attempting to find new housing. I have been unavailable due to current demands in both my work and 20 personal lives. 21 7. In August of 2020, I began repair work at the Auburn, California home of Jeremy Mauel, 22 Heather Mauel, Hank Mauel, and Cindy Mauel (collectively referred to as the, “Mauels”). I attempted to 23 perform the work at the request of the Mauels, who during such time, made the work difficult and 24 unbearable. While performing the repair work I was observed by the Mauels who have now taken issue 25 with the work and services provided. 26 // 27 // 28 // 1 DECLARATION OF TONY WALKER DocuSign Envelope ID: A214C412-156C-4A7A-8FCB-7C858A97C907 1 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 10/30/2020 2 and correct and that this declaration was executed on this _____ day of October, 2020. 3 4 ____________________________ 5 Tony Walker 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF TONY WALKER Exhibit A Exhibit A DATEI}: 4 -';zg , zozo JERE.h,II'MAUEL IVTY MAUEI, HE.A'I'H[iR fuTA,.[JE[, A]'HER MAUH[, !}A'I.HI}: _,702{t I,IANK I\4AUEL I.IANK iI,I CTN'DY fuIAIJEL CINDY Approved as to Frrrn: A RONOW ITZ SKII}MORIJ LY ON I}A'I'ED: ,2020 Attorney for l) ${ftd antsi Crcss- Conrplainants JERtrM EY MA [.i EL, IIEATHIiR MAUEL, I-IANK L4AU[L. and CTNDY MAUtrL Pagc 1 B of'20 * t]+?7{i} Kavaritgh r'. il,faucls -'Global SAI{ tniti*ts: DATED, 5/.3/ ,2020 Approved as to Fonn: CLAPP. MORONEY. VUClNICH. BEEMA.i"\f & SCHELEY DATED:------- 5/5 . 2020 MATTHEW S. CONSTANTINO. ESQ. Attorneys for Cross-Defendant TONY WALKER PAINTING, INC. Page 20 of20 Ka1anagh \". \laucls - Global SAR-04-2i-20 lni1ials:�-ztj. Exhibit B From: Matt Constantino To: klyon@asilaw.org Cc: kjohnson@asilaw.org Subject: RE: Mauel"s repair work Date: Thursday, July 30, 2020 11:03:01 AM Attachments: image001.png I just spoke with Tony. He has been out of town on a job but is now back and ready to start the repair work. He said he has not received any email/communication from the Mauls. Please either provide me with the Mauls’ contact info, which I will forward to Tony, or have the Mauls call Tony. His cell is (916) 284-5516. Matthew S. Constantino | Bio Partner tel: 925-734-0990 | fax: 925-734-0888 mconstantino@clappmoroney.com 5860 Owens Drive, Suite 410, Pleasanton, CA 94588 San Francisco | Peninsula | East Bay/Central Valley | San Jose/Monterey | Sacramento | Los Angeles Visit our website at www.clappmoroney.com for additional information on Clapp Moroney ***************************************************************** This e-mail, including any attachments, is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments, destroy any printouts that you may have made and notify us immediately by return e-mail. Thank you. From: Kathleen Lyon Sent: Monday, July 27, 2020 5:16 PM To: Matt Constantino Cc: Katrina Johnson Subject: RE: Mauel's repair work Matt I know you are trying but it does not appear to be working. Have you heard anything at all from him? Best Regards, Kathleen C. Lyon Aronowitz Skidmore Lyon (530) 823-9736 klyon@asilaw.org Exhibit B From: Matt Constantino Sent: Monday, July 27, 2020 5:03 PM To: Kathleen Lyon Cc: Katrina Johnson Subject: RE: Mauel's repair work I have followed up with Mr. Walker. From: Kathleen Lyon Sent: Monday, July 27, 2020 4:09 PM To: Matt Constantino Cc: Katrina Johnson Subject: Mauel's repair work Matt We are instructed to file a motion to enforce settlement agreement unless Mr. Walker contacts the Mauels by tomorrow and sets an appointment within a week. Best Regards, Kathleen C. Lyon Aronowitz Skidmore Lyon A Professional Law Corporation 200 Auburn Folsom Road, Ste. 305 Auburn, CA 95603-5046 Telephone: (530) 823-9736 Facsimile: (530) 823-5241 klyon@asilaw.org CAUTION: THE INFORMATION CONTAINED IN THIS ELECTRONIC COMMUNICATION AND ANY ACCOMPANYING DOCUMENTS IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY BE CONFIDENTIAL, MAY BE PRIVILEGED (ATTORNEY-CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF ANY READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS RESPONSIBLE FOR DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823-9736, AND DELETE THE ORIGINAL MESSAGE FROM YOUR ELECTRONIC MAIL BOX. Exhibit C Michael R. Arellanez From: Kathleen Lyon Sent: Monday, August 3, 2020 2:15 PM To: Matt Constantino Subject: Mauel v. Walker Matt I guess we need to proceed to a 664.6. Tony has not contacted Mauels at all. He is in complete breach and the Mauels have the right to cure by having someone else do the work. Best Regards, Kathleen C. Lyon Aronowitz Skidmore Lyon A Professional Law Corporation 200 Auburn Folsom Road, Ste. 305 Auburn, CA 95603‐5046 Telephone: (530) 823‐9736 Facsimile: (530) 823‐5241 klyon@asilaw.org CAUTION: THE INFORMATION CONTAINED IN THIS ELECTRONIC COMMUNICATION AND ANY ACCOMPANYING DOCUMENTS IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY BE CONFIDENTIAL, MAY BE PRIVILEGED (ATTORNEY‐CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF ANY READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS RESPONSIBLE FOR DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823‐9736, AND DELETE THE ORIGINAL MESSAGE FROM YOUR ELECTRONIC MAIL BOX. Exhibit C 1 Exhibit D Michael R. Arellanez From: Kathleen Lyon Sent: Wednesday, August 26, 2020 2:35 PM To: Matt Constantino Subject: Mauel residence Matt Tony started the work without engaging and expert and it is horrible! He did not take the cabinets to his shop either. We plan to go in on 664.6 to have a judgment against him to have the work done by real paintes. Best Regards, Kathleen C. Lyon Aronowitz Skidmore Lyon A Professional Law Corporation 200 Auburn Folsom Road, Ste. 305 Auburn, CA 95603-5046 Telephone: (530) 823-9736 Facsimile: (530) 823-5241 klyon@asilaw.org CAUTION: THE INFORMATION CONTAINED IN THIS ELECTRONIC COMMUNICATION AND ANY ACCOMPANYING DOCUMENTS IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY BE CONFIDENTIAL, MAY BE PRIVILEGED (ATTORNEY-CLIENT, ATTORNEY WORK PRODUCT, RIGHT TO PRIVACY) AND MAY CONSTITUTE INSIDE INFORMATION. IF ANY READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT THAT IS RESPONSIBLE FOR DELIVERING THE COMMUNICATION TO THE INTENDED RECIPIENT, UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED, AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US AT (530) 823-9736, AND DELETE THE ORIGINAL MESSAGE FROM YOUR ELECTRONIC MAIL BOX. 1 Exhibit D Exhibit E KATHLEEN C. LYON, CSB #236224 klyon@asilaw.org KATRINA L. JO HNSO N, CSB #213479 2 kjohnson@asilaw.org ARONOWITZ SKIDMORE LYON 3 A Professional Law Corporation 200 Auburn Folsom Road, Suite 305 4 Auburn, Californ ia 95603 Telephone: (530) 823-9736 5 Fax: (530) 823-5241 6 Attorneys for Defendants and Cross-complainant 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER M 0 10 W.J. KAVANAGH CONSTRUCTION Case No .: S-CV-0041701 v:, z V"> °' MANAGEMENT, INC.,