City of Fresno v. Maroot

• Court: California Court of Appeals
• Writing for the Court: GEO. A. BROWN
• Citation: 189 Cal.App.3d 755,234 Cal.Rptr. 353
• Parties: CITY OF FRESNO, Plaintiff and Appellant, v. Charles J. MAROOT, Jr. et al., Defendants and Respondents. F006238.
• Decision Date: 09 February 1987

Page 353

234 Cal.Rptr. 353 189 Cal.App.3d 755 CITY OF FRESNO, Plaintiff and Appellant,
v.
Charles J. MAROOT, Jr. et al., Defendants and Respondents. F006238. Court of Appeal, Fifth District, California. Feb. 9, 1987.

[189 Cal.App.3d 756] James A. McKelvey, City Atty., Edwin A. Oeser, Asst. City Atty., and Jesse J. Avila, Deputy City Atty., Fresno, for plaintiff and appellant.

Herman H. Fitzgerald, Burlingame, for defendants and respondents.

GEO. A. BROWN, Presiding Justice.

This is the second appeal in this eminent domain case. In the first appeal we reversed a summary judgment in favor of Charles J. Maroot, Jr. and Judith Ann Maroot (Maroot) enforcing a purported settlement agreement between the City of Fresno (City) and the landowners, Maroot. The nonpublished opinion is numbered F002200.

The purported settlement agreement provided for the payment by the City to the landowners, Maroot, of $315,000 for the damages suffered by Maroot by reason of the condemnation of their property, which included a restaurant known as Jon Jon's. A dispute developed concerning whether the sum provided to be paid included fixtures.

In the former appeal the ground for reversal of the summary judgment was that the trial court erred in refusing to consider certain declarations filed [189 Cal.App.3d 757] by the parties concerning the disputed points. We also observed, "once the declarations are taken into consideration, as a matter of law they create issues of fact as to the meaning and intent of the parties which can only be resolved by a trier of fact." Since factual issues cannot be resolved in a motion for summary judgment, we reversed.

When the case went back to the superior court, Maroot moved for a judgment to enforce the settlement agreement pursuant to CODE OF CIVIL PROCEDURE SECTION 664.6¹. ²

Page 354

The motion was grounded upon the identical transcription of the agreement taken down by the certified shorthand reporter at the depositions of Charles J. Maroot, Jr. and Judith Ann Maroot and upon the same declarations that had been submitted as part of the previous summary judgment motion.

The section 664.6 motion was granted, and judgment was entered in favor of Maroot and against the City. The City's second appeal followed.

FACTS

As a step in preparation of the case the City set the depositions of Charles J. Maroot, Jr. and Judith Ann Maroot. Before commencement of the depositions, settlement negotiations were entered into between the City and Maroot through their respective attorneys, Mr. Bacigalupi and Mr. Fitzgerald. Following the negotiations, counsel attempted to memorialize the agreement by reciting the terms to a court reporter who was present for the scheduled depositions. The relevant portion of the proceedings reads as follows:

"MR. FITZGERALD: The settlement on the Maroot Jr., parcel 13, would be the amount of three hundred and fifteen thousand dollars.

"MR. BACIGALUPI: That is three one five.

"MR. FITZGERALD: Three one five. Thank you. Together with all legal interest to which we would be entitled, to be calculated between the attorneys and agreed upon by the parties. But that is statutory and there should be no problem.

"We would also reserve all relocation claims on the move from the property[189 Cal.App.3d 758] which is being acquired. Would that be the agreed upon stipulation, Counsel?

"MR. BACIGALUPI: I would just say with respect to the relocation claims, the settlement doesn't affect any other relocation compensation to which Mr. Maroot might be entitled to under the law.

"MR. FITZGERALD: That is fine.

"MR. BACIGALUPI: We are not attempting to affect one way or the other any relocation claims.

"MR. FITZGERALD: Okay.

"MR. BACIGALUPI: And the stipulated three hundred and fifteen thousand dollars includes all compensation for land, improvements, fixtures, and any other mitigation claims and other damages other than relocation.

"MR. FITZGERALD: That is not fixtures, because that is part of our relocation argument.

"MR. BACIGALUPI: Well, whatever claims for relocation have existed before this agreement still exist. They are not affected.

"MR. FITZGERALD: So we are not involving fixtures, whatever that I [sic ] term may mean. I think we are going to have a controversy on that, or at least a difference of opinion, because obviously there are certain items that John John [sic ] wants to move, and that it was agreed to move before, and items that he hasn't agreed to--but that is a relocation claim. We are not dealing with the fixtures.

"MR. BACIGALUPI: All right.

"...

"MR. FITZGERALD: Mr. and Mrs. Maroot, are you agreeable to the stipulation that has been said?

"MRS. JUDITH MAROOT: Yes, but I just had a question on if it is necessary to define relocation.

"MR. FITZGERALD: Well, we really can't, because we are talking about--I think that relocation would involve a number of items, Judith. We are going [189 Cal.App.3d 759] to--we very easily may disagree on the definitions, and I don't think we can reach an idea as to what relocation involves.

"It is our position that we are entitled to all relocation benefits that we are entitled to under the law. And I think Mr. Bacigalupi agrees with that, but he may

Page 355

disagree with how that is in [sic ] interpreted.

"John John, do you have anything?

"MR. BACIGALUPI: Are the terms of the stipulation that you have heard agreeable?

"MR. CHARLES J. MAROOT, JR.: They are, except the costs of relocating, whatever they might be, are going to be holding me up from progressing any further, which I have been held up now I would say since the month of November of '81. I just hope we don't have to wait a whole year again to go around, because the money coming for relocation or whatever, it is going to take that to put the business back on its feet to get everything installed and get started again. And I can't go another year.

"MR. BACIGALUPI: Well, as far as relocation goes, of course you will be dealing with Daryl Balch, and those claims need to be...