Judge: Latrice A. G. Byrdsong, Case: 22STLC08459, Date: 2024-03-18 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 22STLC08459    Hearing Date: March 18, 2024    Dept: 25

Hearing Date:                         Monday, March 18, 2024

Case Name:                             CREDITORS AJUSTMENT BUREAU, INC. v. CEDAR RESTURANT GROUP, LLC AKA CEDAR RESTURANT GROUP LLC dba YAMASHIRO; YAMASHIRO, LLC dba YAMASHIRO; and DOES 1 through 10, Inclusive.

Case No.:                                22STLC08459

Motion:                                   Motion to Enforce Settlement Pursuant to CCP 664.4; Request for Fees and Cost of $1,877.60

Moving Party:                         Plaintiff Creditors Adjustment Bureau

Responding Party:                   None

Notice:                                    OK

 

 

Tentative Ruling:                    Plaintiff Creditors Adjustment Bureau Inc.’s Motion to Enforce Settlement Entered into Between Plaintiff and Defendants Pursuant to CCP § 664.6 is GRANTED.

 

Judgment is entered for Plaintiff and against Defendants Cedar Restaurant Group, LLC aka Cedar Restaurant Group LLC dba Yamashiro and Yamashiro, LLC dba Yamashiro sin the Total Amount of $10,485.01.

 

Counsel for Plaintiff is ordered to serve and  electronically submit a proposed form of Judgment, consistent with the Court’s Ruling, within 10-days.

 

SERVICE: 

 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

 

OPPOSITION:          None filed as of March 05, 2024                    [   ] Late          [X] None 

REPLY:                     None filed as of March 11, 2024                    [   ] Late          [X] None 

 

BACKGROUND

 

On December 20, 2022, Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff”) filed four causes of action against Defendants Cedar Restaurant Group, LLC aka Cedar Restaurant Group dba Yamashiro, and Yamashiro, LLC dba Yamashiro (collectively “Defendants”) for 1) breach of contract, 2) open book account, 3) account stated, and 4) reasonable value.

 

Defendants filed their answer to Plaintiff’s Complaint on January 09, 2023.

 

            On January 16, 2024, Plaintiff filed the instant Motion to Enforce Settlement Pursuant to CCP 664.4; Request for Fees and Cost of $1,877.60.

                       

No opposition has been filed.

 

MOVING PARTY POSITION

 

Plaintiff prays for the Court to enforce the settlement agreement entered between the parties under CCP § 664.6 and enter judgment against Defendant in the sum of $10,485.01 for the following: the remaining balance of $8,607.41, plus $1,877.60 in attorney’s fees and costs for two (2) hours in time spent drafting the motion at a rate of $600.00 per hour, one hour in appearance fees, $60.00 for the filing fee, $17.60 for the e-filing cost. Plaintiff argues that the agreement between the parties is valid under CCP § 664.6 and that since Defendants have defaulted on payments under the agreement the Court should enforce the agreement and enter judgment against the Defendant.

 

OPPOSITION

 

            No opposition has been filed.

 

REPLY

 

            No reply has been filed.

 

ANALYSIS

 

I.          Legal Standard

 Code of Civil Procedure section 664.6 (“CCP § 664.6”) 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.” (Code Civ. Proc., § 664.6, subd. (a) [emphasis added].) For purposes of the statute, “a writing is signed by a party if it is signed by any of the following [among other individuals]: (1) ¶ The party. (2) ¶ An attorney who represents the party.” (Code Civ. Proc., § 664.6, subd. (b) [emphasis added].)

 

“On a motion to enforce, the court must determine whether the settlement agreement is valid and binding. [Citation.] The court assesses whether the material terms of the settlement were reasonably well-defined and certain, and whether the parties expressly acknowledged that they understood and agreed to be bound by those terms. [In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.]” (Estate of Jones (2022) 82 Cal.App.5th 948, 952.)

 

The court may interpret the terms and conditions of a 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).

 

II.        Discussion

 

A. Retention of Jurisdiction

           

“‘[V]oluntary dismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.’ (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 867.) ‘If requested by the parties,’ however, ‘the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement.’ (§ 664.6, italics added.)” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.) “‘Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.’” (Id. (quoting Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37).)

 

“A request for the trial court to retain jurisdiction under section 664.6 ‘must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’” (Id. (quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440).) “The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’” (Id. (quoting Wackeen, supra, 97 Cal.App.4th at 440).)

 

Here, the parties signed a stipulation containing the parties’ agreement for the Court to retain jurisdiction under Code of Civil Procedure §664.6 to enforce the terms of the Stipulation and enter judgment in the event of default. (Kenneth J. Freed Decl.; Exh. 1.) Plaintiff provides evidence that both Plaintiff and Defendants signed the Stipulation provided to the Court through the instant motion. (Exh. 1 p. 3.) The Court notes that no dismissal was entered in this matter therefore the Court still retains jurisdiction to enter judgment pursuant to the parties’ Stipulation in this action.

 

B. Entry of Judgment

 

The Settlement Agreement provides that the parties agreed to settle the matter for a principal sum of $16,807.41, with an initial payment of $8,200.00 paid by April 19, 2023. (Freed Decl. ¶ 2, Exh. 1.) Defendants subsequently would make three monthly payments of $2,150.00 beginning on May 15, 2023, till July 15, 2023, and then a final payment of $2,157.41 on August 15, 2023. (Id.) Plaintiff’s counsel avers that Defendants only made the first down payment totaling $8,200.00, and that Defendants have since defaulted on payments. (Id.) Counsel states that on December 13, 2023, counsel emailed Defense counsel notifying him of Defendants’ default on the remaining balances and further advised that if Defendants did not cure the default by the close of business the following day, then Plaintiff would proceed with the instant motion. (Id. ¶ 3; Exh. 2.) Counsel swears that to date Defense counsel has not responded to counsel’s email nor has any additional payments been received. (Id.) Accordingly, due to Defendants’ failure to comply with the Settlement Agreement, Plaintiff requested that a judgment be entered against Defendant. (Id. ¶ 5.)  Plaintiff’s counsel states that he has spent in excess of two hours researching and drafting this motion and anticipates one hour to travel and appear for the hearing, at a rate of $600 per hour.  (Id. ¶¶ 4,5.)  Counsel notes that a total of $77.60 has been expended on motion and filing fees. (Id.)   

The Court finds the Settlement Agreement valid and enforceable under CCP § 664.6. Here, Plaintiff provides evidence that Defendants have defaulted and that they have not cured the default after Plaintiff sent notice. (Id. ¶ 3.) Therefore, since a dispute has arisen from a valid and signed settlement agreement between the parties and the Court retains jurisdiction to enter judgment, the motion satisfies the requirements under CCP § 664.6.  Further, the Court finds the attorney’s fees and costs requested to be reasonable.

Accordingly, Plaintiff’s Motion to Enforce Settlement Pursuant to CCP § 664.6 is GRANTED. Judgment is entered for Plaintiff and against the Defendants in the amount of $10,485.01 for the following: the remaining balance of $8,607.41, plus $1,877.60 in attorney fees and cost for two (2) hours in time spent drafting the motion at a rate of $600.00 per hour, one hour in appearance fees, $60.00 for the filing fee, $17.60 for the e-filing cost.

 

III.       Conclusion

           

Plaintiff Creditors Adjustment Bureau Inc.’s Motion to Enforce Settlement Entered into Between Plaintiff and Defendants Pursuant to CCP § 664.6 is GRANTED.

 

Judgment is entered for Plaintiff and against Defendants Cedar Restaurant Group, LLC aka Cedar Restaurant Group LLC dba Yamashiro and Yamashiro, LLC dba Yamashiro in the TOTAL amount of $10,485.01.

 

Counsel for Plaintiff is ordered to serve and electronically submit a proposed form of Judgment, consistent with today’s Court’s ruling, within 10-days.

Moving party is ordered to give notice.