Ni v. McKee CA2/6

Filed 6/4/15 Ni v. McKee CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

WAYNE W. NI, 2d Civil No. B256188 (Super. Ct. No. 1415328) Plaintiff and Respondent, (Santa Barbara County)

v.

PETER J. MCKEE,

Defendant and Appellant.

This is an appeal from an order enforcing a settlement agreement on motion made pursuant to Code of Civil Procedure section 664.6 (section 664.6). We affirm. FACTS Peter J. McKee and Shaun McKee, father and son, are officers and shareholders in McKee Communications, Inc. Wayne W. Ni was an employee and shareholder in the corporation. Peter, his wife and stepdaughter are also neighbors of Ni and his family. In January 2013, Ni filed a complaint against Peter and Shaun McKee and the corporation. The complaint alleged, among other matters, that the McKees terminated Ni's employment because he refused to cooperate in financial irregularities involving the corporation. The complaint also alleged that Peter McKee was harassing Ni and his family.

The trial court sustained demurrers to Ni's complaint with leave to amend. Prior to the filing of Ni's second amended complaint, the parties entered into a settlement agreement. The agreement provided that the McKees would purchase Ni's stock in the corporation for $350,000. The agreement also required Peter McKee to list his primary residence on Lomita Lane in Carpinteria for sale. Essential to this appeal, the agreement provides in part: "Irrespective of whether the property has been sold, Peter McKee and family shall vacate the Lomita house on or before March 23, 2014. Upon vacating the Lomita house, Peter McKee shall relocate to a residence no closer than 2 miles from the Lomita house, if on the mountainside of the 101 freeway, and thereafter he shall never reside within 2 miles of the Lomita house on the mountainside of the 101 freeway." Finally, the agreement provided, "This agreement is intended to be fully enforceable under Code of Civil Procedure section 664.6." The agreement was signed by Ni, Peter McKee and Shaun McKee on September 23, 2013. On October 3, 2013, the parties filed a separate stipulation that the trial court would retain jurisdiction to enforce the agreement. The stipulation was based on the portion of the settlement agreement that provided the court shall maintain jurisdiction. The stipulation was signed only by the parties' attorneys. The trial court signed an order attached to the stipulation stating that the court retains jurisdiction. Thereafter Ni dismissed this case. Peter McKee purchased Ni's stock. Peter also listed his house for sale, but it did not sell during the listing period. He refused to move from his house on March 23, 2014, as required by the settlement agreement, and continues to refuse to move. Ni brought a motion pursuant to section 664.6 to enforce the agreement. The motion requested an order requiring "McKee to fulfill his settlement promise to vacate his Carpinteria residence . . . ."