Storper v. Dillick CA1/1

Filed 5/31/13 Storper v. Dillick CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

JONATHAN S. STORPER, Plaintiff and Respondent, A135435 v. STEVEN DILLICK et al., (San Francisco City & County Super. Ct. No. CGC-07-468743) Defendants and Appellants.

Jonathan Storper sued his neighbors Steven and Stephanie Dillick because a tree on the Dillicks’ property encroaches on Storper’s property. A settlement was reached, and Storper voluntarily dismissed his lawsuit, with prejudice. Three years later, issues concerning the tree were still not wholly resolved. Storper wanted to enforce the settlement, but was told by a court clerk he first needed to set aside the dismissal. So Storper filed a motion to vacate, attaching his proposed motion to enforce. The trial court allowed Storper to proceed, but modified the proposed order granting the motion. The court interlineated the proposed language vacating the judgment and restoring the case to the civil active list and, instead, ordered simply that Storper could file his proffered motion to enforce. The Dillicks have appealed, contending the court could not set aside the dismissal. We treat the appeal as a writ and deny it, thereby leaving the trial court’s order intact.

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FACTUAL AND PROCEDURAL BACKGROUND We recite only the facts and procedural history pertinent to the issues before us. In October 2007, Storper filed a complaint in superior court against the Dillicks over a large Monterey cypress tree on the Dillicks’ property. Storper sued under the San Francisco Tree Dispute Resolution Ordinance, claiming the cypress’s branches obstructed his city views, blocked a path, encroached on shrubbery on his own property, and created a fire hazard. Seven months later, on May 14, 2008, Storper and Steven Dillick, and their attorneys, appeared before the trial court to put a settlement agreement on the record. Counsel and the parties took turns stating and clarifying terms of the settlement. The Dillicks would pay to have the cypress trimmed, according to agreed-upon parameters, within 30 days. Upon trimming, and within 180 days, the Dillicks could purchase up to three replacement trees and ask Storper for up to $6,000 in reimbursement. Then, within three years, Storper could elect removal of the cypress, in which case the Dillicks would have 60 days to remove the tree and Storper and the Dillicks would split the cost. Defendants would also agree to a covenant, running with their property, regarding plant heights. Amongst several other terms, the parties agreed ―[t]he court will retain jurisdiction pursuant to Civil Code of Procedure [sic] Section 664.‖ After recitation of the terms, the court swore the parties who were present, Storper and Steven Dillick, and each agreed to the settlement. Counsel for Storper then noted, ―[t]here’s another Defendant in the case who’s not present in the court and we’d just like to clarify for the record that she will be similarly bound by the terms of the settlement agreement.‖ Steven Dillick responded, ―I can represent that I represent my wife and she’s the other Defendant and that we agree that she is so bound.‖ The court then stated it accepted the settlement agreement. On May 22, 2008, Storper’s attorney filed, and the trial court entered, a request for dismissal of the complaint with prejudice.