Judge: Frank M. Tavelman, Case: 21BBCV00408, Date: 2022-08-12 Tentative Ruling

Case Number: 21BBCV00408    Hearing Date: August 12, 2022    Dept: A

ALLEGATIONS:

Yongquang Liang ("Plaintiff") filed suit against Defendant Cunwen Zhu ("Defendant").  The complaint alleges that Quingdao GuoRun Industry and Trade Co. failed to pay a debt owed to Plaintiff, and Defendant was a guarantor for that debt.

Plaintiff filed a Complaint on April 28, 2021, alleging three causes of action for: (1) Breach of Contract; (2) Common Counts; and (3) Fraud.

HISTORY:

The Court received the Motion to Enforce Settlement filed by Plaintiff on June 3, 2022. The Court has not received any opposition or reply.

In support of the enforcement request, the Declaration of Edisson Seropian was filed on June 3, 2022 along with a Motion for Order for Enforcement of Settlement.  Attached as Exhibit A was a settlement agreement between the parties dated May 7, 2021  (“Settlement Agreement”).

On July 1, 2022, the Court continued the instant matter to August 12, 2022 and directed Plaintiff’s counsel to serve Defendant with this motion. Plaintiff’s counsel was ordered to give notice.

RELIEF REQUESTED:

Plaintiff moves for an order entering judgment in accordance with the terms of the settlement entered into by Plaintiff and Defendant on May 07, 2021.

ANALYSIS:

Proof of Service – Plaintiff filed proof of service on August 8, 2022.

On May 7, 2021, the parties entered into a Settlement Agreement for $350,000, with a minimum of $50,000 to be wire transferred to Plaintiff monthly.  General Terms, Section l of the settlement agreement entitled “Enforcement” expressly sets forth that the settlement agreement could be enforced pursuant to CCP 664.6.  Code of Civil Procedure 664.6 permits the court to retain jurisdiction to enforce a settlement agreement provided the parties have agreed.   Specifically CCP 664.6(a) states:

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.   

 Given that the Settlement Agreement expressly permits the court to retain jurisdiction, this Court has jurisdiction to hear this matter.  However, additional conditions in the Settlement Agreement exist.

Paragraph 7 of the Settlement Agreement express states that if monthly payments of at least $50,000 are not made then Defendant will be in default.   However, the default may be cured if within seven days’ notice of the default the missing payment is made.  If not cured, the Defendant will be in breach.

In reviewing the motions, declarations and exhibits thereto filed with the request to enforce the judgement, the Court notes the absence of facts to support that the seven days’ notice was provided.  Under the Settlement Agreement, this notice is a condition precedent to a breach versus simply a default.   A “default” and a “breach” were distinguished by the parties in Paragraph 7.  Without the seven days’ notice, the Defendant may be in default, but Defendant is not yet in breach of the agreement to result in an enforcement.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Yongquang Liang’s Motion to Enforce Settlement came on regularly for hearing on August 12, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO ENFORCE SETTLEMENT IS DENIED.

IT IS SO ORDERED.

DATE:  August 12, 2022                              _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles