Darquea v. Baev CA1/3

Filed 9/7/22 Darquea v. Baev CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

CHARLES A. DARQUEA et al., Plaintiffs, Cross-defendants and Respondents, A165824 v. (Santa Clara County Super. Ct. No. 17CV318460) IVAN BAEV et al., Defendants, Cross-complainants and Appellants.

The trial court granted Charles and Patricia Darquea’s (plaintiffs) motion to enforce a settlement agreement (Code Civ. Proc., § 664.6) but stayed further proceedings on plaintiffs’ complaint and on Ivan and Svetla Baev’s (defendants) cross-complaint until the parties completed their obligations under the agreement. Defendants appeal the order enforcing the agreement. We conclude the order is not appealable and dismiss the appeal.1

Undesignated statutory references are to the Code of Civil Procedure. 1

Because we dismiss the appeal without deciding its merits, defendants do not have a right to oral argument, and we consider it unnecessary to our procedural ruling. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1254; Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871.)

1

BACKGROUND Plaintiffs and defendants own adjoining property on a hillside in San Jose. Defendants’ property is downslope from plaintiffs’ property. A concrete retaining wall separates the properties. In 2017, plaintiffs filed a complaint against defendants alleging claims for nuisance, negligence, and declaratory and injunctive relief. According to the complaint, defendants planted trees abutting the wall; these trees blocked plaintiffs’ view and compromised the structural integrity of the wall. The complaint also alleged defendants damaged the wall by cutting into the concrete footing. Plaintiffs sought damages, a judicial declaration of the parties’ rights and responsibilities regarding the trees and the wall, and an order requiring defendants to remove the trees and repair the wall. In May 2018 — and before defendants answered the complaint — the parties mediated their dispute and entered into a settlement agreement. The agreement requires defendants to hire a structural engineer to inspect the retaining wall “and prepare a report on the fixes necessary to ensure the wall’s structural integrity.” The parties will share the cost of repairing “structural issues” but must bear their own costs to remedy “issues other than the wall itself (e.g., backfill on [plaintiffs’] property or roots from trees on [defendants’] property)” that are “threatening the wall.” The agreement also requires defendants to obtain bids from contractors for the “cost of remediation,” and it outlines a process the parties must follow to select the bid. If the remediation cost identified by the structural engineer exceeds $30,000, the parties may “opt out” of the agreement and pursue legal remedies regarding the “wall . . . and tree issues.” But if the remediation cost is $30,000 or less, “the remediation work shall go forward.”