SMITH V. SABEH-AZAR

hears” are qualified to testify to the standard of care.” (Id. § 10:124.3 citing Health & Safety Code § 1799.110(c); see Petrou v. South Coast Emerg. Group (2003) 119 Cal.App.4th 1090, 1094 [five-year period measured from the date of alleged malpractice].) Here, Plaintiffs oppose the motion with experts who do not have a similar expertise of Dr. Nafiu. Therefore, Plaintiffs have not sufficiently demonstrated or established that their experts are qualified to render the opinions they have offered.

Finally, Dr. Nafiu objects to the declaration of Dr. Van Scoy-Mosher, M.D., on similar grounds for relying on evidence not before the court. (Obj. No. 5.) He also objects to Dr. Van Scoy- Mosher’s opinion that if the sarcoma had been diagnosed in the summer of 2022, and surgery were performed then, it “would have very likely been completely successful” and “required significantly less removal of her spinal structures.” (Obj. No. 6.) Dr. Van Scoy-Mosher also opined on the possible future recurrence of the sarcoma and prognosis. (Obj. No. 7.) The objections are well-taken especially as to speculation and improper expert opinion. Moreover, Dr. Van Scoy-Mosher is a general oncologist. He has not demonstrated experience in or knowledge about performing oncologic surgery or spine surgery to remove cancerous tumors or trauma surgery. Dr. Nafiu’s objections are sustained.

Plaintiffs also assert their own undisputed facts, which include facts about the accident and subsequent medical care, including facts about Dr. Nafiu’s care and treatment of Karla. (Plaintiff’s Additional Material Facts [PAMF] Nos. 1-22.) Some of these facts rely on the declarations of Plaintiffs’ experts, which are objectionable as discussed above. Plaintiffs have not presented expert opinion establishing that Dr. Nafiu breached the standard of care or caused or contributed to Karla’s injuries.

To the extent that Plaintiffs claim that expert opinion is not required, this position is untenable in light of the requirement for an opposing party to submit contradictory expert opinion in a medical malpractice action. (Jambazian v. Borden (1994) 25 Cal.App.4th 836.) In addition, plaintiff must establish causation within a “reasonable medical probability” based upon competent expert testimony. (Jamison v. Desta (2013) 215 Cal.App.4th 1144, 1166-1167; Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)

Plaintiffs have failed to meet their burden. Therefore, summary judgment is granted in favor of Dr. Nafiu.

4. CASE # CASE NAME HEARING NAME MOTION TO ENFORCE SETTLEMENT CVSW2305042 SMITH V. SABEH-AZAR 664.6 Tentative Ruling: Grant the application for enforcement of settlement, pursuant to Code of Civil Procedure section 664.6. Plaintiffs have put forth evidence demonstrating that Defendant has failed to comply with her obligations of the settlement. Accordingly, the Court will enforce the remedies agreed upon by the parties by allowing the parties’ Stipulated Judgment to be filed and entering judgment awarding $285,302.00 for Plaintiffs’ general damages, plus the fees awarded to Plaintiff, for a total judgment of $ 417, 328.25. The moving party shall submit the Proposed Stipulated Judgment, consistent with this ruling, within 5 days.

Plaintiffs, Thomas V. Smith and Julia L. Smith (“Plaintiffs”), move to enforce the settlement agreement reached by the parties on August 08, 2025, and to enter judgment thereon. Plaintiffs are residential property owners in Temecula, California, who sued the owner of the adjacent property for trespassing onto Plaintiffs’ property and cutting down trees sitting on their land.

Prior to going to trial, the parties settled, and their settlement terms were committed to a written Compromise, Settlement, and Mutual Release (“Settlement Agreement”). Plaintiffs contend that Defendant has breached her obligations under the Settlement Agreement and therefore judgment must be entered into in accordance with the agreement.

The matter has been pending for several months, giving Defendant time to cure her breach of the settlement agreement. On January 08, 2026, Plaintiffs initially appeared ex parte seeking enforcement of the Settlement Agreement under Code of Civil Procedure section 664.6 as authorized by the term of the Settlement Agreement. In particular, Plaintiffs contend that, among other things, Defendant has failed to satisfy her obligations under the Settlement agreement by failing to: (1) Obtain a loan to pay the cost of removing the remaining tree stumps and debris from the area of Plaintiffs’ property where the tress were previously located; (2) complete the removal within 75 days from the date of the execution of the agreement; and (3) pay the fees and costs awarded by the Court within 5 days from the date Defendant obtains the loan.

For these reasons, Plaintiffs’ request for judgment to be entered for the total award of $417,328.25, which represents the agreed-upon replacement cost of the trees and the fees $124,451.25 that Judge Rhodes awarded to Plaintiffs on October 27, 2025. The following language of the Settlement Agreement serves as the basis for Plaintiffs’ request:

iii. If Defendant fails to timely pay the Fees and Costs as provided herein, Plaintiff may file and enforce a Stipulated Judgment against Defendant. The Stipulated Judgment Amount is comprised of 2 amounts: $285,302.00 for Plaintiffs’ general damages, plus the amount if any, ordered by the Court for Plaintiffs’ attorneys’ fees and costs. (Declaration of Thomas Dreblow ["Dreblow Decl.”], Ex. 1 [Settlement Agreement, § 2].)

In accordance with the Settlement Agreement, on August 21, 2026, parties signed a Stipulated Judgment which was to be held by Plaintiffs’ counsel without being filed “unless Defendant fails to timely pay for the removal/installation of the trees and the Fees and Costs.” (Dreblow Decl., Ex. 1 [Settlement Agreement, §2.d.iv].) A copy of the signed Stipulated Judgment is attached as Exhibit 2 to the declaration of Plaintiffs’ counsel submitted in support of the ex parte application. (Dreblow Decl., Ex. 2.) The Stipulated Judgment on paragraph 17 includes a blank space for the total judgment amount to be filled out by the Court.

On January 09, 2026, the Court continued the hearing on Plaintiff’s ex parte application to February 10, 2026, to allow Defendant an opportunity to file an opposition. In lieu of an opposition, however, Defendant, who is now self-represented, filed a declaration explaining that, as Court has instructed, she has been making good-faith attempts to comply with the Settlement Agreement. Defendant does not address the default on the obligations raised in Plaintiffs’ ex parte application. Rather, Defendant sheds light on the ongoing disagreements between the parties in regard to Defendant’s obligation to find replacement trees of “like kind and size” to those trees cut from Plaintiffs’ property.

Defendant contests the measurement provided by Plaintiffs’ tree appraiser that the height and diameter of the trees which were cut down were materially smaller than the exemplar trees used in the measurement and that she has proposed reasonable replacement options of trees approximately 14-16 feet in height. (Declaration of Roanna Sabeh-Azar [“Sabeh-Azar”], ¶¶ 3-6.) Defendant points out that the Settlement Agreement does not define the term “size” nor incorporate or reference any appraisal, expert report, or third-party estimate as a specification for performance. (Id. at ¶ 8.)

Defendant asserts that her estimated range of height of the original trees is based on both her direct observation and the photographs taken of the original trees before and after they were cut down, which include the images of the remaining trunk sections and stumps left behind. She asserts that the photographs are the only “direct physical evidence” left of the trees. (Id. at ¶¶ 3, 10-13.) The court repeatedly stressed the importance of curing the breach on the loan, cleanup of stumps, contacting nurseries, and payment of fees.

On February 03, 2026, Plaintiffs filed their reply to Defendant’s opposing declaration. They argue that the Settlement Agreement is sufficiently clear as to size, type, price, and number of trees that Defendant agreed to replace. Plaintiff’s reply is accompanied by their counsel’s declaration stating that the specific measurements Plaintiffs provided Defendant were personally taken by their appraiser (Applegate) when he visited Plaintiffs’ property and assessed the specific damaged trees at issue. (Declaration of Thomas Dreblow iso Reply [“Dreblow Reply Decl.”], ¶ 5, Ex. 2.)

Plaintiffs’ counsel also states that Defendant has not provided the names of the nurseries that could provide replacement options, has not paid the attorney fee award which came due on November 11, 2025, and has not removed the stumps and debris that was required to be completed within 75 days of executing the Settlement Agreement. Plaintiffs point out that the Court’s jurisdiction at this stage is limited to enforcing the terms of the Settlement Agreement and that Defendant is undeniably in breach justifying the entry of judgment in accordance with the settlement terms.

On February 10, 2026, the matter came on for a hearing. The Court continued the hearing once again to March 20, 2026, for reason Defendant failed to file her opposition; although it was served on Plaintiffs. On March 20, 2026, the matter came on for a hearing. After hearing arguments from both sides, the Court set a “4-hour 664.6 hearing” scheduled for July 29, 2026, for the Court to consider testimony re: whether judgment should be entered in this matter. On July 22, 2026, the assigned judge, Honorable Randy Rhodes, continued the July 29th hearing to August 28, 2026. A petition for a writ of mandate was filed in the District Court of Appeal, which was denied on August 10, 2026.

Plaintiffs’ evidentiary objection to Defendant’s declaration: On February 03, 2026, Plaintiffs served and filed evidentiary objections to Defendant’s declaration. The court rules as follows:

Objection #1: overrule

Objection #2: sustain only as to the first sentence and overrule as to the remaining.

Objection #3: overrule only as to “I believe the trees at issue were approximately 14-16 in trunk height....” sustain as to the remaining. “A nonexpert may give testimony in the form of an opinion where it is ‘rationally based on the perception of the witness’ and is ‘helpful to a clear understanding of his testimony,’ (Evid. Code, § 800[)],” and this may include description of speed, distance, size, and weight. (Wheeler v. St. Joseph Hosp. (1977) 63 Cal.App.3d 345, 362; Dean v. Feld (1946) 77 Cal.App.2d 327, 330-331.)

Objection #4: overrule.

Objection #5: sustain.

Objection #6: sustain only as to the first and second sentences. Overrule as to the remaining.

Objection #7: sustain.

Objection #8: sustain.

Objection #9: sustain.

Objection #10: sustain.

Code of Civil Procedure section 664.6: Code of Civil Procedure section 664.6 provides: “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.” (Code Civ.

Proc., §664.6.) The court’s decision to adopt a settlement as a judgment under section 664.6 is not mandatory as the statute states that a court “may enter judgment pursuant to the terms of the settlement....” (In re Jason E. (1997) 53 Cal.App.4th 1540, 1546.) Although a motion for enforcement of a settlement filed under section 664.6 is not an exclusive means to enforce an agreement, section 664.6 provides for an expeditious procedure intended to “benefit not only parties but also the justice system, relieving it of the burden of more time consuming and expensive processes. [Citation.]” (In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 898.) “A trial court, when ruling on a section 664.6 motion, acts as a trier of fact.” (Skulnick v.

Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.) The court “acting upon a motion under section 664.6 may determine the motion upon declarations alone” or, in the trial judge’s sound discretion, may receive oral testimony in making a determination on the motion. (Ibid.; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565.)

A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts. (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.) “ ‘Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.’ [Citation.] A trial court ‘hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.’ [Citation.]

The trial court may not ‘create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.’ [Citation.] Thus, a trial court cannot enforce a settlement under section 664.6 unless the trial court finds the parties expressly consented, in this case in writing, to the material terms of the settlement. [Citation.]” (Id. at 732.) In ruling on a motion under section 664.6, the trial court cannot rewrite the settlement agreement or add what was omitted. (Weddington Productions, Inc. v.

Flick (1998) 60 Cal.App.4th 793, 810 [“nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon”].

Here, although the Court is not bound by section 664.6 to enter judgment, the entry of the parties’ Stipulated Judgment is a remedy which the parties have agreed to in the event of Defendant’s breach of the terms. Hence, the Court’s order enforcing the settlement would result in the entry of judgment awarding $417,328.25 to Plaintiffs, which represents the amount of the agreed-upon replacement cost of the trees ($285,302) as specified in the agreement and the October 27, 2025, fee award. The facts are straightforward –after the execution of the Settlement Agreement, Defendant has not obtained a loan, has not timely removed the stumps and debris from Plaintiffs’ property, and has not timely paid the fees awarded to Plaintiffs.

Defendant does not deny these facts. Rather, Defendant raises another ongoing issue regarding the size of the replacement trees and the selection of the appropriate supplier. Irrespective of the outstanding disputes over the interpretation as to the meaning of “replacement trees” of “like kind and size,” Defendant is undisputably in breach of several terms of the settlement and though given substantial time to cure, has failed to do so. Therefore, the court will not conduct a further evidentiary hearing on “replacement trees” and will, instead, enforce the remedies the parties agreed to, which is to allow the Stipulated Judgment to be filed and for the Court to enter judgment in accordance its terms.