Judge: H. Jay Ford, III, Case: 19SMCV01587, Date: 2024-05-30 Tentative Ruling

Case Number: 19SMCV01587    Hearing Date: May 30, 2024    Dept: O

  Case Name:  Har-Bro West, Inc. v. Hakim, et al.

SUBJECT:                 MOTION TO ENFORCE SETTLEMENT

MOVING PARTY:   Plaintiff/Cross-Defendant Har-Bro West, Inc.

RESP. PARTY:         Defendant Michael Hakim

TENTATIVE RULING

            Plaintiff/Cross-Defendant Har-Bro West, Inc.’s Motion to Enforce Settlement and for an award of Interest and Attorney’s Fees is GRANTED. Defendant Michael Hakim is ordered to pay the remaining Settlement Agreement principal amount of $9,237.02, plus attorney’s fees of $6,900.75 ($3,362.00 initial work to enforce settlement + $3,120 to bring this motion [6 hrs. @ $280 + 4 hrs. @ $360]), plus $1,923.34 in prejudgment interest, totaling $18,061.11 pursuant to the 8-7-23 Settlement Agreement and CCP § 664.6.

            “Code of Civil Procedure section 664.6 allows the court to enter a stipulated judgment in settlement of a case, and to retain jurisdiction to enforce the settlement.” (Ironridge Glob. IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 267.)  Furthermore, “[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.)  “[T]he court has no discretion, but must award prejudgment interest upon request, from the day there exists both a breach and a liquidated claim.” (Glassman v. Safeco Ins. Co. of America (2023) 90 Cal.App.5th 1281, 1314–1315, as modified (May 17, 2023).) The Court can “invoke its power to levy such prejudgment interest as it deems just and equitable.” (Segura v. McBride (1992) 5 Cal.App.4th 1028, 1041.)

            “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717, subd. (a); see also CCP § 1033.5, subd. (a)(10(A) [stating prevailing parties are entitled to recover their attorney's fees as an element of costs where such fees are authorized by contract].)

            Plaintiff/Cross-Defendant Har-Bro West, Inc. (“Har-Bro”) and Defendant Michael Hakim (“Hakim”) executed a settlement agreement on 8-7-23 whereby Hakim was to pay Har-Bro a total settlement amount of $55,000 in installment payments beginning with a $5,000 payment by 9-8-23, “then monthly payments of $4,166.67 . . . due on the first of each month until the $55,000 payment has been paid in full.” (Feldman Decl., ¶ 2, Ex. A, “Settlement Agreement” § 1.) The monthly payments had a five-day grace period to cure any late payment, and if Hakim failed to cure, “the balance of remaining payment will be immediately due and payable.” (Ibid.)

Upon filing this motion, Har-Bro declared and provided evidence that Hakim failed to pay the mandated four percent credit card service fee of $129.24 for the October 2023 payment. (Feldman Decl., ¶¶ 4–6; Ex. B, C.) Additionally, Hakim had not paid the February and March 2023 payments. (Feldman Decl., ¶¶ 8–12; Ex. F–I.)

            In Har-Bro’s Reply filed on 5-21-24, Har-Bro declares that on 4-9-24 Hakim paid Har-Bro $12,112.77, after $387.24 in credit card fees were deducted from the payment, as payment February, March, and April 2023. (Feldman Suppl. Decl. ¶¶ 3–5, Ex. L, M.) On 5-7-24 Hakim paid an additional $12,112.77, with $387.24 in credit card fees deducted from the payment, , after Hakim’s counsel informed Har-Bro to use the same “authorization from the prior month of April.” (Feldman Suppl. Decl., ¶¶ 6–10: Ex. Q–U.)

            As of 5-21-23, Hakim had paid a total of $45,762.98 of the principle ($21,537.44 as of initial motion filing + $12,112.77 February – April 2024 payments + $12,112.77 May 2024 payment), and thus Hakim owes $9,237.02 in principle plus interest and attorney’s fees as per the settlement agreement. (Feldman Suppl. Decl., ¶ 11(a)–(c).) Hakim has failed to timely cure multiple payments including the October 2023, February 2024 and March 2024 payments and thus per Settlement Agreement Section 1.G “the balance of the remaining payments [became] immediately due and payable.” (Gute Decl, ¶ 2; Ex A, § 1, subd. (G).)

            Section 5 of the settlement agreement between Har-Bro and Hakim states that any "party obtaining enforcement of this settlement agreement pursuant to [California] Code of Civil Procedure §664.6 shall be entitled to reasonable attorney's fees." (Gute Decl., ¶ 2, Ex. A; Feldman Decl., ¶ 2, Ex A.) Har-Bro has moved to obtain enforcement of the settlement and thus are entitled to reasonable attorney’s fees of $6,900.75 ($3,362.00 initial work to enforce settlement  + $3,120 to bring this motion [6 hrs. @ $280 + 4 hrs. @ $360].) (Feldman Decl., ¶¶ 15–17: Ex. J, K.)

            Har-Bro has requested an adjusted prejudgment interest of $1,923.34 ($1,742.30 [10-9-23 to 4-16-24] + $122.85 [4-16-24 to 5-7-24] + $58.19 [5-7-24 to 5-30-24].) (Feldman Suppl. Decl., ¶¶ 11(a)–(c), 12.) Hakim provides no authority as to why he should not be mandated to pay the credit card fees, and further Hakim first breached the Settlement Agreement on 10-9-23, thus prejudgment interest is proper in this instance and mandatory upon request. (See Civ. Code, § 3287.)