Menasco v. Iancu CA1/4

Filed 12/23/21 Menasco v. Iancu CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

JAMES KENNETH MENASCO et al., Plaintiffs and Respondents, A159733 v. (Contra Costa County Super. Ct. JERI IANCU, as Executor, etc., et al., No. MSC16-01460) Defendants and Appellants.

This appeal is from an order enforcing a settlement agreement under Code of Civil Procedure section 664.6.1 The appellants, Jerry and Constance Kilarr (the Kilarrs),2 claim error on the grounds that there was a total failure of consideration supporting the settlement and, alternatively, that the respondents, James and Nikii Menasco (the Menascos), are guilty of unclean hands in procuring the settlement and therefore should be blocked from enforcing it on equitable grounds. We shall affirm.

All subsequent undesignated statutory references are to the Code of 1

Civil Procedure. Counsel for the Kilarrs wrote to the court on April 26, 2021, and 2

notified us that Jerry Kilarr has passed away. By this letter, Jeri Iancu purported to appear as executor of Jerry Kilarr’s estate. Though normally we would expect a formal substitution motion to be made seeking to replace Ms. Iancu for Mr. Kilarr, we will deem counsel’s letter to be such a motion and hereby grant it.

1

I. BACKGROUND In 2016, the Menascos filed a complaint against the Kilarrs alleging that in 2002 the two couples jointly purchased a 13-week timeshare unit in South Lake Tahoe; that the Menascos and the Kilarrs were thereafter partners in the ownership of the timeshare unit; that they agreed to share in the payment of timeshare expenses on a 50/50 basis; and that the Kilarrs failed to pay their share of the expenses. According to the Kilarrs, “[m]any years ago” they told the Menascos that “they could have” the Kilarrs’ interest in the timeshare; but to the Kilarrs’ surprise, “[a]fter not having heard from the Menasco[s] for about ten years,” the Menascos “suddenly brought [this] lawsuit claiming that [the Kilarrs] were liable to them for half of the timeshare expenses going back to the time we told them they could have our interest.” The parties entered into a written settlement agreement in 2018 settling the Menascos’ 2016 lawsuit pursuant to an arrangement in which the Kilarrs, who were still shown on the deed as joint owners of record, would sign a quitclaim deed, but then would immediately acquire the timeshare unit from the Menascos for $117,726 as part of a tax-free 1031 exchange (26 U.S.C. § 1031) that Jerry Kilarr had committed to undertake in connection with another real property transaction. The settlement agreement expressly recited that the court would retain continuing jurisdiction to enforce the settlement under section 664.6 for purposes of resolving any disputes under it. The terms of the settlement agreement were not consummated, apparently because the parties had various disagreements about the recording of documents in connection with the purchase transaction, the form of the purchase agreement, the agreed price, and whether the Kilarrs were due a credit against the purchase price because the Menascos had already