Judge: John J. Kralik, Case: 23BBCV00983, Date: 2024-03-15 Tentative Ruling

Case Number: 23BBCV00983    Hearing Date: April 12, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Forwardline Financial, LLC (“Plaintiff”) alleges that it entered into a written contract on March 16, 2022 with Defendants Torqqe Performance, LLC (“Torqqe”) and Earl Smith (“Smith”).  Plaintiff alleges that Torqqe breached the agreement on November 2, 2022 by failing to remit further payment to Plaintiff under the loan and that Smith breached the agreement by failing to cure the breach of his personal guaranty.  Plaintiff alleges that it has suffered $39,947.26 in damages.  

The complaint, filed May 3, 2023, alleges causes of action for: (1) common counts; (2) common counts; (3) common counts; (4) breach of contract; and (5) breach of contract.

B.     Relevant Background and Motion on Calendar

On June 27, 2023, Plaintiff filed proofs of service showing that Defendants were each personally served with the summons and complaint on May 16, 2023. 

On June 16, 2023, Torqqe filed an answer to the complaint. 

On June 29, 2023, the default of Earl Smith was entered. 

On September 21, 2023, Plaintiff filed a Notice of Settlement of Entire Case.

On September 27, 2023, the Court noted at the Case Management Conference that a notice of settlement had been filed.  The Court set an OSC re: Dismissal (Settlement) for September 25, 2024.  The case is still active and has not yet been dismissed.

On December 15, 2023, Plaintiff filed a motion to vacate the dismissal under CCP § 664.6 and enter judgment pursuant to stipulation.  The Court is not in receipt of an opposition brief.

The matter initially came for hearing on March 15, 2024.  The Court continued the hearing on the motion to April 5, 2024, ordering Plaintiff to serve the motion papers on Earl Smith.  The Court also expressed that it could not enter a stipulated judgment against Earl Smith until his first appearance have been paid. 

On March 22, 2024, Plaintiff filed a proof of service showing that the motion papers had been served on Earl Smith by mail. 

The matter came for hearing on April 5, 2024.  The Court informed Plaintiff’s counsel that first appearance fees for Earl Smith had not yet been paid and Plaintiff’s counsel requested another continuance.  The Court continued the hearing to April 12, 2024 and stated that if first appearance fees were not paid by April 11, 2024, the motion would be denied. 

Based on the Court’s records, it appears that Earl Smith’s first appearance fees have now been paid. 

DISCUSSION

            Plaintiff moves for an order vacating the dismissal and entering judgment pursuant to the stipulation, relying on CCP § 664.6. 

            The Court notes that the action has not been dismissed.  The action is still active.  The OSC re: Dismissal (Settlement) is set for September 25, 2024.  Thus, Plaintiff’s request to vacate the dismissal is moot as the case as no dismissal has been entered in this action.

            The Stipulation of Entry of Judgment and Installment Payments and Dismissal of Action with Consent to Court Retaining Jurisdiction Pursuant to CCP § 664.6 (“Stipulation”) is attached as Exhibit 1 to the motion.  The Stipulation provides that $2,000 shall be paid on or before the 1^st of each and every consecutive month commencing on or before August 1, 2023 through and including March 1, 2025 until the total sum of $40,000 is paid in full.  (Stipulation, ¶2(A).)  Upon payment of the $40,000 amount, Plaintiff will dismiss the action with prejudice.  (Id., ¶3.)  If Defendants default and fail to cure the default, they will be in breach of the Stipulation and Plaintiff may seek judgment of the $40,000 settlement amount, less any payments paid, plus interest, costs, and attorney’s fees.  (Id., ¶¶3, 7-9.)  The Stipulation is signed by Plaintiff’s authorized agent, Smith (as an individual), and Smith (as authorized agent for Torqqe).  (Id. at p.7.) 

            Plaintiff’s counsel, Jon O. Blanda, states that Defendants have made payments totaling $4,000 in August and September of 2023, but failed to make payments thereafter.  (Blanda Decl., ¶4.)  Mr. Blanda states that Plaintiff has emailed defense counsel but Defendants have failed to cure the default.  (Id., ¶5.)  Plaintiff seeks $36,000 (balance), plus interest at 10% from the date of the default beginning October 1, 2023.  (Id., ¶¶6-7.) 

Based on the terms of the Stipulation and Defendants’ default by failure to make further payments pursuant to the payment schedule, the Court finds there is substantive merit to granting the motion to enforce the Stipulation.  Thus, the motion to enter judgment pursuant to the Stipulation is granted.

CONCLUSION AND ORDER

Plaintiff Forwardline Financial, LLC’s motion to vacate the dismissal under CCP § 664.6 and enter judgment pursuant to stipulation is granted in part and denied in part.  The motion is denied in part as to the request to vacate the dismissal as the action has not yet been dismissed.  The motion is granted in part as to the request to enter judgment pursuant to stipulation against Defendants Torqqe Performance, LLC and Earl Smith. 

Plaintiff shall give notice of this order. 

DATED: April 12, 2024                                                         ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court