Motion to enforce settlement agreement
INTRODUCTION
In 2017, Dean Freitas (“Petitioner”) and Lisa Freitas (“Respondent”), each beneficiaries of the Freitas Family Trust, entered into a settlement agreement regarding disposition of trust real property located at 199 Bellerose Drive, San Jose (“Property”). The settlement agreement provided that Petitioner was entitled to 60% of the property while Respondent was entitled to 30% and they would hold title as joint tenants. The settlement agreement gave Petitioner the right to partition and sell the property.
Currently before the court is Petitioner’s motion to enforce the settlement agreement so that he can sell the property. The motion is unopposed. Nonetheless, the court finds that it must be DENIED WITHOUT PREJUDICE for the reasons discussed below.
DISCUSSION I. No Proof of Service Has Been Filed As mentioned above, Respondent has not opposed the motion. But, Petitioner has not provided the court with a proof of service establishing that he served Respondent and/or her counsel with the motion. (Cal. Rules of Court, rule 3.1300 (c) [“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”].) While the court could continue the hearing to allow for proper service, the motion is deficient in other respects.
II. No Memorandum of Points and Authorities Has Been Filed Rules of Court, rule 3.1113(a) provides, “A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.”1 “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).)
Here, no memorandum of points and authorities was filed with the notice of motion.
III. Should Petitioner Seek to Refile, the Court Needs Further Information Regarding the Requested Reimbursement for Utilities Petitioner has requested reimbursement of expenses for utilities under the terms of the settlement agreement. He has provided a “Reimbursement Claim Accounting” listing, inter
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1 A motion to enforce settlement agreement is not one of the motions for which no memorandum is required under rule 3.1114.
alia, expenses for “AT&T.” Petitioner has not established that these expenses are considered “utilities” such that they are reimbursable under the terms of the settlement agreement. Notably, the accounting lists charges from AT&T in wildly varying amounts and charges do not appear to recur on the same date every month. AT&T provides various services, including, home internet, home phone, personal cell phone plans, and television streaming services. The costs for some of these items, such as personal cell phone plans or television streaming services would seem to be more appropriately borne by only one party because they may including charges for roaming, financing of a cell phone, or purchase of a movie which may have been incurred unilaterally. Accordingly, the court requires further information regarding these expenses for them to be reimbursable.
CONCLUSION
The motion is DENIED WITHOUT PREJUDICE.