Judge: Martha K. Gooding, Case: 2-01218929, Date: 2023-08-14 Tentative Ruling
1) Motion to Enforce Settlement
2) Motion to be Relieved as Counsel
Before the Court are two motions: The first is a motion by Plaintiff to enforce a settlement with Defendant Old American Incorporated (“Defendant”) pursuant to Code of Civil Procedure (“CCP”) section 664.6. The second is a motion by Elliot H. Stone and Robert S. Throckmorton of Stone LLP, attorneys of record for Defendant Old American, Inc. (“Defense Counsel”) to be relieved as counsel.
Both motions are GRANTED.
Plaintiff’s Motion to Enforce Settlement
The Court GRANTS the Motion by Plaintiff to enter judgment pursuant to CCP §664.6 against Defendant Old American Inc. pursuant to the parties’ Settlement Agreement. The Plaintiff in the action originally was Ascentium Capital LLC; however, by order dated 5/12/2023, the Court granted an ex parte application to substitute Regions Bank as the Plaintiff in place of Ascentium Capital LLC. Defendant did not oppose the Motion.
The Court finds the unopposed motion has merit. It will enter judgment in favor of Plaintiff in the amount of $65,951.66.
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.)
Here, the parties filed a stipulation and the Court signed it, thus retaining jurisdiction. (ROA 53). (See Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439-440; Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 326; Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 918 (same).)
On September 1, 2022, the Parties fully executed the Settlement Agreement to resolve this lawsuit. (Overs Decl., ¶2, Ex. A.)
The Settlement Agreement states, in pertinent part, that Old American is required to pay $70,000 to Ascentium twenty-three monthly payments of $2,916.67 on the fourteenth day of each month, followed by one payment of $2,916.59 (the “Settlement Payment”). The Settlement Agreement provides:
a. Defendant shall pay to Ascentium the amount of $70,000 (the “Settlement Amount”) as follows:
i. The amount of $2,916.67 per month, to be paid to Ascentium on or before the 14th day of each calendar month for twenty-three (23) consecutive calendar months beginning on September 14, 2022.
ii. The amount of $2,916.59 per month, to be paid to Ascentium for one (1) calendar month immediately following the above twenty-three (23) monthly payments.
b. Defendant shall be in default under this Agreement if it fails to comply completely or timely with the payment terms and conditions in Section 2 of this Agreement. Defendant shall not be in default under this Agreement as long as the envelope containing the settlement check, if mailed, is post marked on or before the due date. In the event that any payment of the Settlement Amount is not actually received by Ascentium in good and collected funds as and when due, as determined by the post mark on the envelope containing the settlement check if mailed (a “Payment Default”), Ascentium may issue a written Notice of Default (“NOD”) to Defendant. The NOD shall be deemed delivered three (3) days after the date of mailing, whether sent by the United States Mail or by Federal Express, next business day delivery. A copy of the NOD will also be delivered by email to Robert Throckmorton at rsthrockmorton@stonellp.com. Once the NOD is deemed delivered, Defendant shall have five (5) business days within which to cure the corresponding default (the “Cure Period”). Defendant shall be entitled to only one (1) Payment Default during the life of this Agreement.
(Overs Decl., Exhibit A, Section 2(a)-(b).)
Old American made only one timely payment to Ascentium, the first Settlement Payment of $2,916.67 for September 2022. (Noon Decl., ¶ 3.) Old American failed to make its Settlement Payments to Ascentium for October 2022 and November 2022. (Id., ¶ 4.)
On November 15, 2022, Ascentium sent a Notice of Default to Old American and its counsel regarding the default. (Overs Decl., ¶ 3; Exhibit B.) Pursuant to the terms of the Settlement Agreement, the Notice of Default was deemed delivered three calendar days after mailing, with Old American having five business days to cure the default after delivery. (Overs Decl., Exhibit A, Section 2(a)-(b).) Thus, Old American had to cure the default by no later than November 29, 2022. (Id.) Although Old American cured the late October 2022 Settlement Payment, it failed to cure the late November 2022 Settlement Payment. (Noon Decl., ¶ 5.) Since then, Old American has also failed to make its timely Settlement Payment for December 2022. (Id., ¶ 6.)
Thus, Old American is in default of the Settlement Agreement and has exhausted its opportunity to cure the default.
Based on the updated evidence that Plaintiff provided the Court, the principal amount owed is $64,166.66. (Suppl. Noon Decl.., ¶¶2-3.)
Under Section 16 of the Settlement Agreement, “a prevailing party shall be entitled to all reasonable fees, costs, and expenses incurred in connection with enforcing this Agreement or in connection with any Enforcement Claim.” (Overs Decl., Exhibit A, Section 16. Plaintiff requests an award of fees and costs pursuant to this provision, but the Court finds the amount requested unreasonable.
The Court finds that $1,725 in attorney’s fees and $60 in costs shall be awarded pursuant to Section 16 of the Settlement Agreement. The Court finds this is the reasonable amount of fees and costs incurred (particularly since the Motion is unopposed).
Plaintiff is ordered to serve and file a proposed form of judgment within five days, and to serve notice of this Order.
The Motion to be Relieved as Counsel
Elliott H. Stone and Robert S. Throckmorton of Stone LLP (“Defense Counsel”), attorneys of record for Defendant, seek an order relieving them as Defendant’s counsel of record in this action.
The Motion initially was heard on 7/20/23. The Court ruled, in relevant part, as follows:
“Counsel did not show they served the supporting declaration and proposed order on the parties. (Cal. Rules of Ct., Rule 3.1362(d) [“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case.”] The proof of service only states the Motion to be Relieved as Counsel was served on the parties. (ROA No. 78.)
“Accordingly, the hearing on this motion is continued to August 28, 2023, at 1:30 PM in Department C31. No later than July 27, 2023, Counsel shall file a proof of service showing the supporting declaration and proposed order were properly served on all parties, including Defendant.”
(ROA # 116.)
Defense Counsel filed a proof of service per the Court’s order showing that the supporting declaration and proposed order were properly served on all parties, including Defendant. (ROA # 114). Defense Counsel also served notice of the advanced hearing date to his client and and to opposing counsel. (ROA # 139.)
Accordingly, the Motion is now GRANTED.
Once the Court has signed the proposed order, Mr. Stone and Mr. Throckmorton shall serve the signed order on all parties, including their own client and Plaintiff’s counsel. Defense Counsel will not be relieved as counsel of record until it has filed and served a proper proof of service of same.
Mr. Stone and Mr. Throckmorton shall give notice of this ruling on their Motion to be Relieved.