Judge: Kenneth J. Medel, Case: 37-2022-00018864-CU-BC-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00018864-CU-BC-CTL GUTSCHOW VS HEINOWITZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Enforce Settlement, 03/28/2023

Plaintiff's Motion to Enforce Settlement Agreement is GRANTED, in part, and DENIED in part. Both the moving and opposing parties here the Settlement Agreement is binding on all Parties and that this Court has jurisdiction to enter the requested relief.

The parties also agree that Defendants missed the first settlement payment due on October 15, and thus the balance owing under the Settlement Agreement was accelerated. Defendants only made the three payments set forth in Gutschow Declaration on the dates and in the amounts set forth in the Gutschow Declaration (Gutschow Declaration, ROA #15, filed on 3/28/2023).

Defendant Iron Summit owed as of the date the Gutschow Declaration was signed (March 22, 2023) $35,545.84.

The parties are also not dispute the amounts. The per diem rate owing under the Settlement Agreement is $9.66 should be added for each day after March 22, 2023 until the Court enters judgment. The individual parties also do not dispute the attorney fees. The attorneys' fees Plaintiff incurred of $2,938.50, together with the estimated fees of $1,500 to read and respond to Defendants' Opposition.

The only issue is whether the judgment should be entered against the individuals. The moving party fails to meet their burden in this regard. The agreement attached to the moving papers is heavily redacted.

What can be read states the following: '[t]he Parties mutually agree that, as consideration for entering into this Agreement, Iron Summit shall pay to Gutschow the sum of $40,000 (Forty Thousand Dollars and No Cents) ... ' (emphasis added.) Section 2.1 expressly states '[a]s security for the Payments set forth above in Section 1, Iron Summit shall provide a Stipulated Judgment in the form attached hereto as Exhibit C ... ' (emphasis added.) No individuals are included here.

According to defendant, the proposed Stipulated Judgment attached to Plaintiffs Motion includes a third page which was never included in the settlement documents exchanged between counsel and signed by Defendants. Based upon the documents presented to the Court and what appears to be the agreement between the parties, Judgment can only be entered against Iron Summit.

Plaintiff is to provide a judgment only as to Iron Summit for the Court's signature.

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