Judge Kerry Bensinger, Case Number: 19STCV21468, Date: 2024-11-13 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6

On June 19, 2019, plaintiffs Jessica Stevens and Frederick Stevens (Plaintiffs) initiated this “lemon law” action against defendants NBA Automotive, Inc. dba Nissani Bros. Chevrolet (NBA Automotive), TD Auto Finance, LLC, Merchants Bonding Company, and General Motors, LLC. The operative pleading is the Third Amended Complaint which alleges causes of action for (1) Violation of the Consumers Legal Remedies Act, (2) Violation of the Song-Beverly Consumer Warranty Act, (3) Violation of Business and Professions Code § 17200, et seq., (4) Fraud and Deceit, (5) Negligent Misrepresentation, and (6) Violation of Vehicle Code § 11711, et seq.

On January 29, 2024, Plaintiffs and NBA Automotive settled Plaintiffs’ claim. The Settlement was memorialized by a signed Settlement Agreement. On February 1, 2024, the court dismissed the action and retained jurisdiction pursuant to Code of Civil Procedure (CCP) section 664.6.

Under the terms of the Settlement Agreement, NBA Automotive was required to pay Plaintiffs $15,000 within 30 days of signing the Settlement Agreement. NBA Automotive failed to make the payment.

On August 21, 2024, Plaintiffs filed this Motion for Entry of Judgment Pursuant to Code of Civil Procedure Section 664.6. Plaintiffs also seek attorney’s fees.

“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.”¿ (Code Civ. Proc., § 664.6.)¿¿¿¿

In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.¿ (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)¿ The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).¿ The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]”¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a “writing signed by the parties” sufficient to satisfy the requirements of Section 664.6].)¿

Plaintiffs argue NBA Automotive breached its obligations under the Settlement Agreement. Specifically, NBA Automotive failed to pay Plaintiffs $15,000.00 within 30 days after signing the Settlement Agreement. (Compendium of Exhibits (COE), Ex. 1, ¶ B.2; Barry Decl., ¶ 6.) NBA Automotive, having not filed opposition, does not present any evidence or argument to the contrary. Plaintiffs are therefore entitled to an order entering judgment against NBA Automotive.

Plaintiffs also request an award of reasonable attorneys’ fees. Under the Settlement Agreement, in the event of litigation between the parties in respect to the Settlement Agreement or any provision thereof, the prevailing party shall be entitled to recover from the other party their reasonable attorneys’ fees and costs. (COE, Ex. 1, ¶ 17.) Given the court’s ruling that NBA Automotive breached the Settlement Agreement, the court further finds an award of reasonable attorneys’ fees and costs is proper. Plaintiffs request $1,668 in attorneys’ fees and $60 in costs associated with filing this motion for the total sum of $1,728. (Barry Decl., ¶¶ 8, 10.) The court finds the request is reasonable. The court will add the $1,728 in attorneys’ fees and costs to the overall judgment.

Accordingly, Plaintiffs’ unopposed Motion for Entry of Judgment is GRANTED. Judgment is entered for Plaintiffs and against Defendant NBA Automotive, Inc. in the total sum of $16,728.

Kerry Bensinger

Judge of the Superior Court