Filed 10/18/21 Tricoast Builders v. Frederick 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

TRICOAST BUILDERS, INC. 

et al., 

 Plaintiffs and Appellants, 

v.

KELLY A. FREDERICK et al., 

 Defendants and Respondents.

 

2d Civ. No. B307825

(Super. Ct. No. 56-2017-

00496775-CU-BC-VTA)

(Ventura County)

The parties settled this construction defect case at a 

mandatory settlement conference (MSC) and placed the 

settlement terms on the record. The parties agreed on the record

that the settlement terms would be memorialized in a fully 

executed agreement prior to payment of the settlement amounts. 

Michael Connette, both individually and as a principal of Tricoast

Builders, Inc. (Tricoast), refused to sign the settlement 

agreement. Kelly A. Frederick and Timothy Athens (collectively 

“homeowners”) moved ex parte for an order to show cause why 
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the settlement agreement had not been signed and requested 

monetary sanctions against Tricoast and Connette. 

The trial court issued an order to show cause why the 

settlement had not been completed and why sanctions should not 

be imposed under Code of Civil Procedure section 128.5.1 

Connette claimed he “had not been well for several months after 

the MSC” and had advised Tricoast’s other counsel, Darren M. 

Ebner, that he disagreed with the terms of the written settlement 

agreement. No details were provided as to either claim. 

The trial court sanctioned Tricoast and Connette in the 

amount of $10,000 and ordered the court clerk to execute the 

settlement agreement on their behalf. They argue on appeal that 

both acts constituted an abuse of judicial discretion. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Homeowners hired Tricoast to rebuild their home after it 

sustained significant fire damage. Following disagreements 

regarding the construction quality, homeowners fired Tricoast, 

which, in turn, recorded a mechanic’s lien and filed this action 

against homeowners and others for money allegedly owed on the 

project. Homeowners cross-complained against Tricoast and 

Connette, for various damages related to the construction 

failures. Tricoast and Connette filed a cross-complaint for 

indemnity against several subcontractors. 

In addition to being an officer of Tricoast, Connette 

represented the company as its attorney in its affirmative claims 

against homeowners. Ebner, who was retained by Tricoast’s 

insurer, represented Tricoast and Connette in defending 

homeowners’ claims and in pursuing indemnity against the 

subcontractors. 

1 All statutory references are to the Code of Civil Procedure 

unless otherwise stated.
3

The entire case settled at the MSC on February 3, 2020. 

Ebner appeared as Tricoast’s attorney, and Connette appeared as 

both Tricoast’s attorney and its corporate representative. The 

settlement required Tricoast’s insurer to pay homeowners 

$420,000. Homeowners would then pay $41,000 of that 

insurance payment to Tricoast, with the subcontractors paying 

an additional $9,000, so that Tricoast would receive $50,000. 

Judge Kent M. Kellegrew served as the MSC settlement 

officer. After approximately eight hours of negotiations, Ebner 

placed the basic settlement terms on the record. He stated that 

“all releases will include a [Civil Code section] 1542 waiver and 

standard release language in a settlement agreement 

forthcoming.” (Italics added.) Attorney Michael Bubman, 

representing Pennymac Corporation, also confirmed that the 

issue of the Civil Code section 1542 waiver “will be addressed in 

the settlement agreement.” (Italics added.) Ebner further stated 

that “[i]t was discussed among at least some of the parties that 

the funding at least for [Tricoast’s insurer] will be made within 

30 days of a fully executed settlement agreement,” and the money 

to be paid back to Tricoast would be “45 days within the signing 

of the agreement.” (Italics added.) Bubman agreed the initial 

payment would be “30 days from the signing of the fully executed 

settlement agreement.” (Italics added.) 

Judge Kellegrew emphasized the need for a written 

settlement agreement: “So with this many moving parts and that 

much money, you are better served to have a written settlement 

agreement that will be concurrent but must be consistent with 

what we do here today. It takes time to get that done. And then 

it takes time to have so many parties sign off on it. And that 

event precedes the exchange of money which impacts when the 

money gets delivered.” Judge Kellegrew confirmed that Ebner 
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“will be carrying the laboring oar” in drafting the settlement 

agreement and set an April 3, 2020 hearing date for compliance 

and dismissal of the action. 

Ebner drafted the settlement agreement, which all parties 

but Tricoast, Connette and JAT Construction (JAT) signed by 

May 12, 2020. The April 3, 2020 hearing was taken off calendar 

due to COVID-19 restrictions. Between April 2020, when the 

settlement agreement was first circulated, and June 19, 2020, 

homeowners’ counsel, Vida Tarassoly, “made many attempts to 

contact [Tricoast] and its attorneys Michael Connette and Darren 

Ebner, through email and phone” and stated “[t]hey have failed 

to sign the settlement agreement to this day.” 

To break the apparent impasse, homeowners filed an ex 

parte application for an order to show cause why the settlement 

agreement had not been signed. The trial court set a hearing for 

July 20, 2020. Homeowners also filed a motion for monetary 

sanctions against Tricoast and Connette based on their failure to 

execute the agreement. They requested that Tricoast and 

Connette pay the $16,750 in expenses incurred in attempting to 

obtain their signatures on the settlement agreement. 

Connette claimed he “had not been well for several months 

after the MSC” and that he disagreed with the way Tricoast was 

defined in the settlement agreement, even though it was drafted 

by Tricoast’s other counsel. The trial court deferred its ruling at 

the order to show cause hearing, but expunged Tricoast’s 

mechanics lien on homeowners’ property and gave them 

additional time to file a reply brief in support of the sanctions 
5

motion.2 The reply sought an additional $8,877.51 in attorney 

fees incurred in attempts to finalize the settlement agreement. 

At the continued hearing on August 10, 2020, the trial 

court awarded sanctions in the amount of $10,000 against 

Tricoast and Connette, jointly and severally, pursuant to section 

128.5. It explained: “The record is clear that Judge Kellegrew 

gave the parties until April 3, 2020 to execute a written 

settlement agreement memorializing the MSC settlement arrived 

at on February 3, 2020. The record is clear that the parties to the 

settlement agreement – with the exception of Mr. Connette and 

Tricoast – executed the agreement. [Homeowners’] counsel . . . 

declares that she made multiple efforts to contact Mr. Connette 

and Tricoast to get them to sign the agreement but they were not 

responsive.” 

The trial court instructed the court clerk to execute the 

settlement agreement on behalf of Connette and Tricoast and 

ordered that the sanctions be paid from the $41,000 settlement 

payment due to Tricoast. Tricoast filed a notice of appeal.3 

2 Judge Vincent O’Neill heard both the order to show cause 

and the sanctions motion. 

3 As homeowners point out, Connette is listed on the notice 

of appeal as Tricoast’s counsel but not as an appellant. Given 

that Connette signed the notice and is jointly and severally liable 

for the sanctions award, we liberally construe the notice of appeal 

to include him as an appellant. (K.J. v. Los Angeles Unified 

School Dist. (2020) 8 Cal.5th 875, 885-887 [“[A] reviewing court 

must construe a notice of appeal from a sanctions order to include 

an omitted attorney when it is reasonably clear that the attorney 

intended to join in the appeal, and [the] respondent was not 

misled or prejudiced by the omission”].)
6

DISCUSSION

Standard of Review

We review an award of section 128.5 sanctions for abuse of 

discretion. (Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 

882, 893.) “‘Discretion is abused whenever, in its exercise, the 

[trial] court exceeds the bounds of reason, all of the circumstances 

before it being considered. . . .’” (Denham v. Superior Court

(1970) 2 Cal.3d 557, 566 (Denham).) We do not independently 

determine whether the challenged conduct was frivolous or in bad 

faith, and we may not substitute our judgment for that of the 

trial court. (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 

992, 1001.) Unless the complaining party shows a clear case of 

abuse and that there has been a miscarriage of justice, we will 

not disturb the trial court's exercise of discretion. (Denham, at 

p. 566.)

The Trial Court Did Not Abuse Its Discretion by 

Sanctioning Tricoast and Connette

Section 128.5, subdivision (a) gives the trial court discretion 

to award “reasonable expenses, including attorney’s fees, 

incurred by another party as a result of actions or tactics, made 

in bad faith, that are frivolous or solely intended to cause 

unnecessary delay.” Tricoast and Connette contend the trial 

court abused its discretion by sanctioning them for not signing 

the settlement agreement. They argue that the court lacked 

jurisdiction to enforce the settlement agreement because Judge 

Kellegrew did not retain jurisdiction under section 664.6, and 

that the oral settlement agreement made in open court was not 

contingent upon the preparation of a subsequent written 

agreement. We reject both arguments. 

Section 664.6, subdivision (a) provides: “If parties to 

pending litigation stipulate, in a writing signed by the parties 
7

outside of 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.” 

While it is true that Judge Kellegrew did not retain jurisdiction 

under section 664.6 because the principal of Rob’s Plumbing was 

not present at the MSC, an oral settlement agreement is 

enforceable against a party who was not present if that party 

subsequently agrees in writing. (Elyaoudayan v. Hoffman (2003) 

104 Cal.App.4th 1421, 1424, 1431-1432 [“‘[M]ix and match’ 

approach to the manner of agreement” is permissible “as long as 

all parties agree to the same material terms”].) The record 

reflects that Rob’s Plumbing signed the written settlement 

agreement on May 12, 2020. 

As to the motion’s merits, homeowners concede the trial 

court did not expressly “order” the parties to execute a written 

settlement agreement, but it is apparent from the record that the 

parties agreed that one would be prepared and that the deadlines 

for making the settlement payments would be governed by the

fully executed agreement. Ebner represented that “[i]t was 

discussed among at least some of the parties that the funding at 

least for [Tricoast’s insurer] will be made within 30 days of a fully 

executed settlement agreement,” and the money to be paid back to 

Tricoast would be “45 days within the signing of the agreement.” 

(Italics added.) Bubman also confirmed that the initial payment 

would be “30 days from the signing of the fully executed settlement 

agreement.” (Italics added.) Thus, as reflected in the record, no 

settlement payments would be due by any party until there was a 

fully executed settlement agreement. Judge Kellegrew 

acknowledged that “it takes time to get [a settlement agreement] 

done. And then it takes time to have so many parties sign off on 
8

it. And that event precedes the exchange of money which impacts 

when the money gets delivered.” (Italics added.) 

In addition, execution of a written settlement agreement 

had a practical purpose. The oral settlement agreement required 

Rob’s Plumbing to pay $1,500 to Tricoast but that party’s 

principal was not present at the MSC. Consequently, as Judge 

Kellegrew explained, the oral settlement agreement was 

unenforceable under section 664.6 because Rob’s Plumbing could

still repudiate it. It was only when its principal signed the 

written settlement agreement that Rob’s Plumbing became bound 

by the settlement terms. (See Elyaoudayan v. Hoffman, supra,

104 Cal.App.4th at p. 1431.) 

The record also confirms that the written settlement 

agreement is consistent with the oral agreement’s terms. The 

written agreement provided that “[w]ithin thirty (30) days of 

receipt of signatures to the Agreement,” Tricoast’s insurer shall 

forward $420,000 to homeowners’ counsel, Vida Tarassoly. 

Further settlement payments also were conditioned upon “receipt 

of signatures to the Agreement.”

Tricoast’s insurer made the $420,000 payment to Tarassoly 

before the payment was required. In a May 28, 2020 response to 

an email from Tarassoly regarding the status of the written 

settlement agreement, Connette inquired: “Was your client not 

paid pursuant to an agreement? [¶] And, has your client paid 

[Tricoast] pursuant to an agreement?” Tarassoly responded: 

“The money is sitting in my trust account. I have been prohibited 

from distributing it to my clients or Tricoast unless there is an 

executed agreement signed by all involved parties. Your client, 

Tricoast, is the only party not having signed the agreement, and 

you have continually failed to respond in a meaningful way to my 

inquiries as to the reasons why your client has refused to do so.” 
9

Tarassoly further stated she had filed a complaint with the state 

bar and was filing the motion for sanctions. 

The record reflects that the other parties signed the 

settlement agreement between April 6 and May 12, 2020.4 In his 

opposition to the sanctions motion, Connette declared that he 

informed Ebner’s firm, Springle and Fink, “that he was not well 

and . . . did not agree with the draft of the settlement agreement.” 

Connette did not specify when that occurred or whether he 

specifically informed Ebner of these facts. Connette further 

declared that he sent a copy of the agreement to Tricoast’s 

president but was unable to contact him “for several months.” 

Once again, no specifics were provided. 

The first date mentioned in Connette’s declaration is June 

4, 2020, when he “requested that Defendants provide an 

agreement that was agreed to on the court record.” He did not 

identify to whom this request was made and whether it was by 

phone, email or letter. Connette’s other claimed communications 

with Tarassoly, which he did document with emails, occurred 

after the sanctions motion was filed on June 23, 2020. 

The record reflects that Connette first advised Tarassoly in 

July 2020 of his concerns regarding how he and Tricoast were 

defined in the settlement agreement. Tarassoly responded that 

“rather than making a general statement that the agreement is 

4 The copy of the settlement agreement in the record does 

not include a signature for JAT. Homeowners requested 

sanctions against JAT for its failure to execute the settlement 

agreement, but the trial court denied the request, finding they 

had failed to “explain in their papers how JAT had engaged in 

delay.” Regardless, the issue of whether or not JAT signed the 

written agreement is not before us. 
10

completely inaccurate, it would be better that [he] be more 

specific about [his] alleged inaccuracies.” 

On July 14, 2020, Connette sent Tarassoly a copy of the 

settlement agreement with his proposed changes. At that point, 

all other parties had signed the agreement. Connette’s proposed 

changes not only revised the definition of Connette and Tricoast, 

as he had suggested, but it also deleted 20 paragraphs of mostly 

standard settlement language. Homeowners rejected the 

proposed changes as untimely and inappropriate. 

Connette does not dispute that he was present at the MSC 

and agreed to the settlement terms which, according to the 

record, included execution of a settlement agreement before any 

payments would be due. Judge Kellegrew gave the parties two 

months to finalize the settlement and dismiss the case. COVID19 disrupted that plan, but a draft settlement agreement was 

circulated by Ebner and signed by the other parties by mid-May 

2020. There is no evidence that Connette made any effort in 

April or May to explain to Tarassoly or the other parties’ counsel 

why he would not sign the agreement. He claims he was unwell 

but does not state he was unable to communicate during that 

period. It also is unclear whether, on June 4, 2020, he requested 

“that Defendants provide an agreement that was agreed to on the 

court record.” Connette provided no evidence of any 

communications with opposing counsel prior to the filing of the 

sanctions motion.

We conclude Tricoast and Connette have not demonstrated 

that the trial court’s $10,000 sanctions award exceeded the 

bounds of reason or constituted a miscarriage of justice. 

(Denham, supra, 2 Cal.3d at p. 566.) To the contrary, the MSC 

was held on February 3, 2020, and Judge Kellegrew 

contemplated dismissal of the action by April 3, 2020. Tricoast 
11

and Connette’s refusal to sign the settlement agreement or to 

explain their reasons for that refusal delayed finalization of the 

settlement until August 10, 2020, when the court ordered the 

clerk to execute the agreement on their behalf. As a direct result 

of Tricoast and Connette’s unreasonable delay, homeowners had 

to incur the expense of applying for an order to show cause and 

obtaining a court order authorizing release of the $420,000 in 

settlement funds. Under these circumstances, imposition of 

sanctions was well within the court’s discretion. 

Motion for Sanctions on Appeal

Homeowners seek $5,313 in sanctions against Tricoast and 

Connette for filing and pursuing a frivolous appeal. (§ 907; Cal. 

Rules of Ct., rule 8.276.) They claim that Tricoast and Connette 

“ignor[ed] the facts that led the trial court to reach its findings” 

and that “[a] fair analysis of the record shows that [they] did this 

[appeal] for the primary purpose of causing [homeowners] stress 

and costing them money.” 

Our Supreme Court has instructed that “an appeal should 

be held to be frivolous only when it is prosecuted for an improper 

motive – to harass the respondent or delay the effect of an 

adverse judgment – or when it indisputedly has no merit – when 

any reasonable attorney would agree that the appeal is totally 

and completely without merit. [Citation.] [¶] . . . [T]he 

punishment should be used most sparingly to deter only the most 

egregious conduct.” (In re Marriage of Flaherty (1982) 31 Cal.3d 

637, 650-651.) Although Tricoast and Connette’s arguments are 

not supported by our reading of the record, we conclude the 

appeal is not “so totally and completely without all arguable 

merit as to justify an award of sanctions under those demanding 

requirements.” (McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 

1208.) 
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DISPOSITION

The trial court’s order awarding sanctions against Tricoast 

and Connette is affirmed. The motion for sanctions on appeal is 

denied. Respondent homeowners shall recover their costs on 

appeal. 

 NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. 

YEGAN, J. 
13

Vincent O’Neill, Judge

Superior Court County of Ventura

______________________________

Connette Law Office, Michael Connette, on behalf of 

Plaintiffs and Appellants.

Law Office of Daniel M. O’Leary, Daniel M. O’Leary, for 

Defendants and Respondents.