1The topic of this issue of the newsletter is filing a motion to enforce settlement agreement in California.

The motion is made under Code of Civil Procedure 664.6 and is filed by a party seeking to enforce a settlement agreement entered into in any pending litigation in California. Code of Civil Procedure 664.6 states that, If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. This means that if a settlement is reached in a pending civil case in California, and the parties have signed a written settlement agreement, or have stipulated to a settlement in open court, and one party does not comply with the terms of the settlement agreement, the other party can file a motion to request that the court enter judgment pursuant to the terms of the settlement agreement under Code of Civil Procedure 664.6. The scope of section 664.6 is extremely broad. The procedure provided by Section 664.6 applies where settlement is reached in pending litigation. Kirby v. Southern California Edison Co., 78 Cal.App.4th 840, 845 (2000); Housing Group v. United Natl Ins. Co., 90 Cal.App.4th 1106, 1108 (2001). The statute states that any written agreement outside court must be signed by the parties. This is interpreted to mean that the settlement must be signed by both the party seeking to enforce the settlement and the party against whom it is to be enforced. Harris v. Rudin, Richman & Appel, 74 Cal.App.4th 299, 305 (1999); Sully-Miller Contracting Co. v. Gledson/Cashman Const., Inc., 103 Cal.App.4th 30, 37 (2002). So long as the terms of the settlement are sufficiently definite to enable the courts to give it an exact meaning, the court is authorized to enter judgment on the settlement. Weddington Productions, Inc. v. Flick, 60 Cal.App.4th 793, 810-812 (1998). A settlement agreement that incorporates other documents can be enforced pursuant to section 664.6 if there was a meeting of the minds regarding the terms of the incorporated documents. Id. at 813. And disputes regarding the terms of the settlement itself may be adjudicated on a section 664.6 motion on the basis of declarations or evidence. Malouf Bros. v. Dixon, 230 Cal.App.3d 280, 284 (1991). In a ruling on a motion under section 664.6, the trial judge may receive oral testimony, documentary testimony or declarations. Corkland v. Boscoe, 156 Cal.App.3d 989, 994 (1984). Section 664.6 also empowers the judge hearing the motion to determine disputed factual issues that have arisen regarding the settlement agreement. Fiore v. Alvord, 182 Cal.App.3d 561, 566 (1985). If the terms of the settlement agreement provide that any party seeking to enforce the terms of the settlement agreement who prevails is entitled to attorney fees and costs, the prevailing party on any

motion to enforce settlement agreement is entitled to recover their attorney fees and costs incurred in bringing or defending the motion. The calculable amount of time spent includes all hours incurred working compensable services, including, but not limited to, investigation, evaluation of claims, drafting and revising pleadings (including the motion for attorneys fees), research and briefing of factual and legal issues, and conferring with clients and/or other counsel. See e.g., People ex rel. Dept. of Trans. v. Yuki, 31 Cal.App.4th 1754, 1775 (1995); Stokus v. Marsh, 217 Cal.App.3d 647, 656 (1990); California Common Cause v. Duffy, 200 Cal.App.3d 730, 753 (1987). The submission of the information contained in the attorneys declaration is prima facie evidence that the costs, expenses, fees and services listed therein were necessarily incurred. See, Hadley v. Krepell, 167 Cal.App.3d 677, 682 (1985). Furthermore, the hourly rate at which Plaintiffs attorney is entitled to be compensated is the reasonable market value of their service in the community. See Serrano v. Unruh, 32 Cal.3d 621, 639 (1982); PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000). As a matter of law, actual billing rates are presumptively the reasonable market value of the attorneys rates. Mandel v. Lackner, 92 Cal.App.3d 747, 761 (1979) (the value of an attorneys time is reflected in his normal billing rate). In addition, a court evaluating the reasonableness of an attorneys rate may consider the skill, experience, reputation, education, and professional accomplishment of the attorney, as well as the nature of the work performed. Flannery v. California Highway Patrol, 61 Cal.App.4th 629, 632-633 (1998); City of Oakland v. Oakland Raiders, 203 Cal.App.4th 78, 82 (1998). The hourly rate requested should be comparable to rates approved by courts even dating back several years, for attorneys of similar skill and knowledge. Bihun v. AT&T Information Sys., Inc., 13 Cal.App.4th 976, 997-998 (1993) (approving hourly rate for $450 per hour for Los Angeles area attorney). If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro

Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.