Judge Daniel M. Crowley, Case Number: BC665850, Date: 2024-07-17 Tentative Ruling

Plaintiff’s Carlos Felix’s unopposed motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.

Plaintiff is entitled to an order entering Judgment against Defendant Jose Somarriba in the amount of $90,00.000 with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018. This Court retains jurisdiction over this matter pursuant to C.C.P. §664.6.

Plaintiff Carlos Felix (“Felix”) (“Plaintiff”) moves unopposed for this Court to vacate the dismissal entered on May 21, 2018, and enter judgment pursuant to the terms of the Stipulated Judgment executed between Plaintiff and Defendant Jose Somarriba (“Somarriba”) (“Defendant”) in April 2018. (Notice of Motion, pg. 1.)

On June 21, 2017, Plaintiff filed the instant action against Defendant seeking damages for breach of contract and common counts. The parties settled pursuant to a Settlement Agreement and Stipulated Judgment executed on April 16, 2018, and a request for dismissal was filed on May 21, 2018, which provided for monthly payments of $500, with a balloon payment to conclude the matter. (Decl. of Ciaccio ¶¶3-4, Exhs. A, B.) The Settlement Agreement, Stipulated Judgment, and Request for Dismissal indicated this Court would retain jurisdiction pursuant to C.C.P. §664.6. (Decl. of Ciaccio ¶4, Exh. B.)

Defendant made payments pursuant to the settlement agreement until June 2023, when he began making payments which were returned for insufficient funds and in July 2023 he stopped making payments altogether. (Decl. of Felix ¶1.)

On February 23, 2024, a demand was made on Defendant to bring his account current or otherwise judgment would be entered in the amount of $90,000 pursuant to the Settlement Agreement and Stipulated Judgment without offset payments received. (Decl. of Ciaccio ¶7, Exh. D.) Pursuant to the Settlement Agreement, Defendant was given 10 days to cure the default, which he has failed to do. (See Decl. of Ciaccio ¶¶3, 7, Exhs. A, D.)

Plaintiff filed the instant motion on May 16, 2024. As of the date of this hearing no opposition has been filed.

C.C.P. §664.6 provides, as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside 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.”

Plaintiff submitted evidence Plaintiff and Defendant entered into the Settlement Agreement, which was signed by both parties on April 16, 2018, and provided for this Court to retain jurisdiction pursuant to C.C.P. §664.6. (Decl. of Ciaccio ¶3, Exh. A.) Pursuant to the terms of the Settlement Agreement,

In the event that either (a) the past due Deferred Payment is not paid within the ten (10) business day Cure Period, or (b) FELIX has to resort to the Notice Procedure on three (3) or more occasions by virtue of three (3) or more Defaults, then an “Uncured Default” shall exist and FELIX shall be entitled to file the stipulation to entry of judgment in the form attached hereto as Exhibit A (the “Stipulation to Entry of Judgment”), and to enter judgment in the form attached as Exhibit B (the “Judgment”), in accordance with the terms of the Stipulation for Judgment set forth below in paragraph 4 of this Agreement.

Defendant failed to cure his default during the ten-day cure period; no payment has been received as of March 11, 2024. (Decl. of Ciaccio ¶7.)

Accordingly, the request for dismissal entered by this Court on May 21, 2018, is vacated. Plaintiff is entitled to an order entering the Stipulated Judgment in the amount of $90,000.00 against Defendant, with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018.

Based on the foregoing, Plaintiff’s unopposed motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.

Plaintiff’s unopposed motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.

Plaintiff is entitled to an order entering Judgment against Defendant in the amount of $90,00.000 with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018. This Court retains jurisdiction over this matter pursuant to C.C.P. §664.6.

Hon. Daniel M. Crowley

Judge of the Superior Court