Judge: Cynthia A Freeland, Case: 37-2019-00064523-CU-BC-NC, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 24, 2023

08/25/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00064523-CU-BC-NC EIGHTY FIVE SIXTY INC VS SKINCLINICAL LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/29/2023

Plaintiff Eighty Five Sixty, Inc. ('Plaintiff')'s motion for entry of judgment is granted.

On December 5, 2019, Plaintiff commenced this action by filing a Complaint against Defendants SkinClinical, LLC and SkinClinical Technologies, LLC (collectively, 'Defendants') for breach of contract and common counts and alleging an outstanding debt of $42,212.71 under the parties' November 1, 2016 Advertising Agency and Media Buying Agreement. See ROA No. 1. On August 27, 2021, the parties entered into a Settlement and Release Agreement (the 'Agreement') under which Defendants agreed to pay Plaintiff $35,000.00 in seven monthly installments between September 30, 2021 and March 31, 2023. See Morton Decl., Ex. A. Paragraph 6(a) of the Agreement provides that: In the event that SkinClinical shall fail to make a payment on the due date, SkinClinical shall have 15 days to make such payment on receipt of notice of default from Eighty Five Sixty. In the event that SkinClinical does not pay a late payment on or before 15 days after notice of default is received, then the entire remaining settlement shall be due, and Eighty Five Sixty may enforce this settlement.

See the Agreement, ¶ 6(a). The Agreement further provides that, to the extent any party is compelled to bring a motion to enforce any portion of the Agreement, 'the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to all other relief for which the party or those parties may be entitled.' Ibid., ¶ 16.

On September 14, 2021, the court approved the Agreement and dismissed this action without prejudice while retaining jurisdiction under California Code of Civil Procedure ('CCP') § 664.6. See ROA Nos. 46, 50; Morton Decl., Ex. A. Defendants made two $5,000.00 installment payments but no further payments have been received. See Morton Decl., ¶ 4. On April 13, 2023, Plaintiff sent Defendants a Notice of Default requesting that payment be received within 15 days as contemplated under the Agreement. Ibid., Ex. B. Plaintiff's counsel also discussed the matter with Defendants' counsel, Michael Vitek. Mr. Vitek, however, could not promise that Defendants would make further payments in the near future. Ibid., ¶ 4.

Plaintiff now moves for entry of judgment owing to Defendants' failure to make payments under the Agreement.

CCP §664.6 (a) provides that: 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 Calendar No.: Event ID:  TENTATIVE RULINGS

2987421 CASE NUMBER: CASE TITLE:  EIGHTY FIVE SIXTY INC VS SKINCLINICAL LLC [IMAGED]  37-2019-00064523-CU-BC-NC jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

Cal. Code Civ. P. § 664.6(a). Upon a motion for entry of judgment under CCP § 664.6, the trial court's role is to determine whether the parties entered into a valid and binding agreement for settlement of all or part of a case. In making that determination, the court may rely upon submitted declarations alone.

See Skulnick v. Roberts Express, Inc. (2002) 2 Cal. App. 4th 884, 889.

The court construes Defendants' lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that Defendants are currently in default under the Settlement Agreement. The foregoing constitutes good cause to grant the motion and award Plaintiff the attorneys' fees and costs incurred in prosecuting the motion.

In light of the foregoing, the court grants the motion and will enter judgment in Plaintiff's favor and against Defendants in the total amount of $26,185.00 ($25,000.00 principal amount owed plus $1,185.00 in attorneys' fees and costs incurred). Plaintiff shall submit a proposed Judgment consistent with this ruling.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 25, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 25, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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