Judge: Melvin D. Sandvig, Case: 23CHCV02250, Date: 2024-09-23 Tentative Ruling
Case Number: 23CHCV02250 Hearing Date: September 23, 2024 Dept: F47
MOTION TO
ENFORCE SETTLEMENT
Motion filed on 10/18/23.
MOVING PARTY: Plaintiff Parker
Group, Inc. adba Parker Group Technologies, Inc.
RESPONDING PARTY: Defendant Anthony Alcazar
RULING: The motion is granted as set forth below.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 7/27/23, Plaintiff Parker Group, Inc. adba Parker
Group Technologies, Inc. (Plaintiff) filed this action against Defendant Mr.
Tortilla, Inc. (Tortilla) for breach of written contract, account stated and
unjust enrichment based on the balance owing under the Plaintiff’s Business
Spend Card Agreement entered between Plaintiff and Tortilla in the amount of
$354,883.23 plus interest, attorney’s fees and costs. The complaint also includes a cause of action
against Defendant Anthony Alcazar (Alcazar) for breach of contract as to the
personal guaranty entered into between Plaintiff and Alcazar in the amount of
$175,000.00 plus interest, attorney’s fees and costs.
On 8/4/23, before Defendants appeared in the action, the
parties settled this litigation by entering into a Confidential Settlement
Agreement and Mutual Release (Settlement Agreement). (Mahdavi Decl., Ex.1 – Settlement Agreement,
hereafter, Ex.1). The Settlement
Agreement required Defendants to make certain payments including the first
payment of $25,000.00 due on or before 8/31/23. (Ex.1 ¶2a). Depending on when payment was made and if made
by a solvent third party investor or lender, the total amounts to be paid
varied between $245,000.00 to $220,000.00. (Ex.1 ¶2h).
Defendants’ default under the Settlement Agreement would
constitute an “Event of Default.” (Ex.1
¶11). If an Event of Default was not
cured within 3 business days following written notice, as to Tortilla, the
remaining balance of $354,883.23 (the Obligation) less any payment made would become
immediately due and payable, and Plaintiff could enforce the obligations due
under the Settlement Agreement including having judgment entered against
Tortilla. (Ex.1 ¶¶11-12).
As to Alcazar, if there was an Event of Default which was
not cured within 3 business days following written notice, the remaining
balance of $175,000.00 (the Personal Obligation) less any payments would become
immediately due and payable, and Plaintiff could enforce the obligations due
under the Settlement Agreement including having judgment entered against
Alcazar. (Ex.1 ¶¶11-12).
On 8/21/23, the Court entered an Order dismissing Plaintiff’s
Complaint without prejudice and pursuant to CCP Section 664.6 pursuant to the
stipulation filed by the parties as required under the Settlement Agreement.
The Settlement Agreement calls for court retention of jurisdiction to enforce
its terms. (Ex.1 ¶18; See also
8/21/23 Stipulation & Order).
On 8/29/23, two days before the first payment of
$25,000.00 was due on 8/31/23, counsel for Defendants advised there was a delay
in Defendants obtaining funding and asked for an extension in connection with
the first payment due under the Settlement Agreement. Plaintiff agreed to give a 15-day extension on the first
payment to 9/15/23, providing some payment was made by 8/31/23. On 8/31/23, Defendants made a partial payment
to Plaintiff in the amount of $2,500.00, leaving a balance on the first payment
of $22,500.00 due 9/15/23. (Mahdavi
Decl., Ex.2). On 9/15/23, Defendants
advised that they would not be able to make the payment that was due that day. Id.
Defendants failed to cure the default within 3 business
days and counsel for Defendants advised that he had no further updates for Plaintiff
regarding when any payment would be made (Mahdavi Decl.).
Therefore, on 10/18/23, Plaintiff filed and served (on
counsel for Defendants at the address set forth in the Settlement Agreement –
Ex.1 ¶21) the instant motion seeking an order enforcing the Settlement
Agreement between the parties and entering Judgment in Plaintiff’s favor and
against Defendants pursuant to the Confidential Settlement Agreement and Mutual
Release (Settlement Agreement) entered on 8/4/23. The motion was originally scheduled for
hearing on 5/1/24. However, on 2/23/24, the
Court stayed the entire matter due to the bankruptcy filing of Tortilla. (See 2/23/24 Notice of Status
Conference and Order Staying the Entire Matter).
At the 8/21/24, Status Conference Re Bankruptcy, pursuant
to Plaintiff’s oral motion, the Court lifted the stay as to Alcazar and
rescheduled the hearing on the instant motion for 9/23/24 as to Alcazar, only. (See 8/21/24 Minute Order). On 8/22/24, Plaintiff filed and served notice
of the Court’s 8/21/24 order. (See
8/22/24 Notice of Entry of Judgment). On
8/23/24, Plaintiff filed and served an Amended Notice of Motion regarding the 9/23/24
hearing date, noting that the motion is no longer directed at Tortilla due to
its ongoing Chapter 11 bankruptcy. (See
8/23/24 Amended Notice of Motion). As
such, Plaintiff now seeks an order enforcing the Settlement Agreement between
the parties and entering Judgment in its favor and against Alcazar, pursuant to
the Settlement Agreement entered between the parties on 8/4/23.
Alcazar has not opposed or otherwise responded to the
motion.
ANALYSIS
CCP 664.6(a) provides:
“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.”
The evidence shows that the parties entered a valid and
binding settlement agreement. (Mahdavi
Decl., Ex.1). Additionally, the evidence
establishes that Defendants have defaulted under the Settlement Agreement
entitling Plaintiff to have Judgment entered in its favor on the remaining
balance due with respect to each Defendant.
(Mahdavi Decl., Ex1-2).
Since Tortilla is in bankruptcy, the proceedings are
stayed as against it. However, the stay
has been lifted as to Alcaraz, who has not filed for bankruptcy
protection. As such, Plaintiff is
entitled to have judgment entered in its favor against Alcaraz in the amount of
$172,500.00 (the Personal Obligation of $175,000.00 minus the $2,500.00 payment
made on 8/31/23).
CONCLUSION
The motion is granted as against Defendant Anthony
Alcaraz, only, in the amount of $172,500.00.
Plaintiff is ordered to submit an amended proposed
Judgment reflecting the above order.