Judge: Andrew E. Cooper, Case: 23CHCV03513, Date: 2025-01-23 Tentative Ruling

Case Number: 23CHCV03513    Hearing Date: January 23, 2025    Dept: F51

MOTION TO ENFORCE SETTLEMENT

Motion Filed: 9/17/24

MOVING PARTY: Plaintiffs Omar Haro Avila; and Monica Yescas (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendant Nissan North America, Inc. (“Defendant”)

NOTICE: OK

RELIEF REQUESTED: An order and entry of judgment enforcing the terms of a settlement agreement between the parties dated 9/2/22, plus interest and attorney fees.

RULING: The motion is off-calendar as moot.

BACKGROUND

Plaintiffs bring this action under the Song-Beverly Consumer Warranty Act (Civil Code § 1790 et seq.) for a vehicle they purchased on or around 8/28/22, for which Defendant issued the manufacturer’s express warranty. (Compl. ¶¶ 4, 7–9.) Plaintiffs allege that “the subject vehicle has suffered from nonconformity(s) to warranty to, including, but not limited to, acceleration, brake switch assembly, ECM, fuel pump assembly, and other defects” during the applicable warranty period. (Id. at ¶ 10.) Plaintiffs allege that they presented the vehicle for repair at an authorized repair facility, but the defects remain. (Id. at ¶¶ 11–12.)

On 11/16/23, Plaintiffs filed their complaint, alleging against Defendant the sole cause of action for Violation of Song-Beverly Consumer Warranty Act. On 12/29/23, Defendant filed its answer.

 On 7/1/24, the parties entered into a conditional stipulated settlement agreement wherein Defendant was to pay, within 60 days, a total sum of $103,664.36 ($53,842.76 to Plaintiffs, and $49,821.60 for the remaining loan balance on the subject vehicle), in exchange for Plaintiffs’ surrender of the subject vehicle and the dismissal of the instant action without prejudice. (Ex. A to Decl. of Scott A. Sanchez.)

On 9/17/24, Plaintiffs filed the instant motion enforce the settlement agreement. On 1/9/25, Defendant filed its opposition. On 1/14/25, Plaintiffs filed their reply.

ANALYSIS

“If parties to pending litigation stipulate, in a writing signed by the parties 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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6, subd. (a).)

In determining a motion to enforce a settlement under Code of Civil Procedure section 664.6, the court seeks to determine whether the parties entered into a valid and binding settlement of all or part of the case. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.) A party moving for entry of judgment under Code of Civil Procedure section 664.6 need not establish a breach of the settlement agreement; the court is authorized to enter judgment pursuant to the settlement regardless of whether the settlement’s obligations were performed, breached or excused. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184–1185.)

Here, Plaintiff has attached to the instant motion a copy of the 7/1/24 settlement agreement entered into between the parties. (Ex. A to Sanchez Decl.) The parties do not dispute the validity and enforceability of the agreement, which explicitly provides that the Court may enforce its terms pursuant to Code of Civil Procedure section 664.6. (Id. at p. 4, ¶ 14.)

Plaintiffs assert that as of the date the instant motion was filed, Defendant “has not paid the settlement funds or attempted to coordinate the vehicle surrender, thereby materially breaching the Agreement.” (Pls.’ Mot. 2:16–17; Sanchez Decl. ¶ 13.)

Defendant argues in opposition that the instant motion is moot, because “Nissan and Plaintiffs have completed surrender of the vehicle, Nissan has satisfied Plaintiffs’ loan on the vehicle, and the attorneys’ fees and the bulk of the settlement funds have been received by Plaintiffs’ counsel.” (Def.’s Opp. 2:10–12.) Specifically, “to date, Nissan sent checks to Plaintiff’s counsel for $20,000 and $32,522.18 and satisfied the final loan balance of $46,410.96, the sum of which is $98,933.14. … Accordingly, Nissan will promptly pay the outstanding amount, $4,731.22, which mostly consists of an expected routine overpayment to the lender, as contemplated by the SAR.” (Id. at 4:2–5.) “The vehicle was surrendered on December 9, 2024. By the time of the hearing on this motion – currently scheduled for January 23, 2025 – all aspects of settlement required of Nissan will have been completed.” (Id. at 5:11–13.)

Based on the foregoing, and to the extent the parties have fully satisfied their obligations under the settlement agreement as of the date of the instant hearing, the Court finds that the instant motion is moot.

1.      Interest

Plaintiffs further argue that they “are entitled to interest for each day that Nissan breached the Agreement. Nissan is subject to interest for each day after August 30, 2024, that it failed to perform its obligations under the Agreement, including paying Plaintiffs the settlement funds ($103,664.36 in total).” (Pls.’ Mot. 3:23–25.)

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day.” (Civ. Code § 3287, subd. (a).) “Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. … If a contract … does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach.” (Civ. Code § 3287, subd (a).)

Here, “Plaintiffs request interest of $28.40 per day to be levied against Defendant for each day after August 30, 2024, that Nissan failed to perform its obligations under the Agreement.” (Pls.’ Mot. 3:28–4:1.) Defendant argues in opposition that “Plaintiffs are not entitled to accrued interest. The settlement agreement does not contain any provision regarding the parties’ obligation to pay interest.” (Def.’s Opp. 6:3–4.) Defendant further observes that “the Motion ignores the key provision of paragraph 2 requiring payment after surrender. Interest can’t run from August 30 – as claimed by Plaintiffs’ Motion – because payment was not yet due as surrender had not yet occurred.” (Id. at 6:6–8.) The Court agrees, finding no basis to award Plaintiffs interest where the settlement agreement does not provide for the recovery of interest.

2.      Attorney Fees

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) “A trial court may order a party, the party’s attorney, or both, to pay the 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.” (Code Civ. Proc. ¶ 128.5, subd. (a).)

Here, Plaintiffs argue that they are entitled to recover $2,250.00 in attorneys’ fees and costs based on Defendant’s purported bad faith tactics and unnecessary delay of performing its obligations under the settlement agreement. (Pls.’ Mot. 4:10–17.) Plaintiffs further argue that they are entitled to recover attorney fees because Defendant materially breached the settlement agreement. (Id. at 4:18–22, citing Ex. A to Sanchez Decl., p. 4, ¶ 10 [“Should either party materially breach any part of this Agreement, the prevailing party shall be entitled to recover attorney’s fees and costs at their customary billing rate.”].)

Defendant argues in opposition that “Plaintiffs fail to meet their burden of proof to show facts that would establish any willful or bad faith action or tactic by Nissan.” (Def.’s Opp. 6:21–23.) “Here, there was no time is of the essence provision in the SAR. Defendant’s payments have been made within seven days of the vehicle surrender and the overage payment will be made within a reasonable time Plaintiffs have not shown that Nissan materially breached the contract and should not be entitled to attorney fees and costs pursuant to ¶ 10 of the SAR.” (Id. at 7:6–10.)

The Court notes that “a finding that a party failed to abide by certain settlement terms does not necessarily support a finding the party materially breached the parties’ agreement.” (Machado v. Myers (2019) 39 Cal.App.5th 779, 796.) Accordingly, at this juncture, the Court declines to make a determination that Defendant materially breached the settlement agreement, and that Plaintiff is therefore entitled to recover attorney fees. Furthermore, as Defendant has now substantially or wholly complied with the terms of the settlement agreement, the Court declines to make a determination that Defendant engaged in bad faith tactics warranting the recovery of attorney fees under Code of Civil Procedure section 128.5.

CONCLUSION

The motion is off-calendar as moot.