Judge: Melvin D. Sandvig, Case: PC058600, Date: 2022-08-04 Tentative Ruling

Case Number: PC058600    Hearing Date: August 4, 2022    Dept: F47

Dept. F47                                                         

Date: 8/4/22                                                    

Case #PC058600

MOTION TO ENFORCE SETTLEMENT

Motion filed on 6/13/22.

MOVING PARTY: Plaintiffs and Cross-Defendants Bruria Carmi and Meir Carmi

RESPONDING PARTY: Defendant Robert Maron, Inc.

NOTICE: ok

RELIEF REQUESTED: An order entering judgment to enforce the terms of the parties’ settlement agreement, pursuant to a stipulation between Plaintiffs and Defendants/Cross-Complainants Robert Maron and Robert Maron, Inc. giving this Court jurisdiction to enforce their settlement agreement in accordance with the provisions of CCP 664.6.  As part of that order, Plaintiffs contend they are entitled to payment by Defendant Robert Maron, Inc. of the sums currently owed under the settlement agreement in the amount of $1,119,639.47 as of June 2022 and payment of their attorney’s fees, per post-judgment and motion costs per cost bill incurred by Plaintiffs in connection with this action to enforce the settlement agreement.    

RULING: The motion is granted. 

PROCEDURAL DEFECTS IN MOTION

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  See also CRC 3.1110(f)(4).  While Plaintiffs appear to have bookmarked their table of contents and exhibits attached to the declaration filed in support of the motion, the bookmarks do not link to portions of the table of contents or the exhibits.  Failure to comply with these requirements in the future may result in  matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions. 

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

This action arises out of Plaintiffs Bruria Carmi and Meir Carmi and Josiane Evenchen’s claim that they were fraudulently induced by Defendants Robert Maron and Robert Maron, Inc. (Defendants) into lending Defendants their retirement savings.  Defendants refused to repay the funds on the ground that the terms of the loan were usurious.  As a result, Plaintiffs sued Defendants for breach of promissory note, common counts for account stated and open book, financial elder abuse, fraud by false promise and concealment, breach of fiduciary duty and declaratory relief.  Defendants filed a cross-complaint against Plaintiffs alleging violation of the California laws against usury, money had and received, unjust enrichment, violation of Business & Professions Code 17200 and declaratory relief. 

On 10/25/19, Plaintiffs/Cross-Defendants Bruria and Meir Carmi (Plaintiffs) and Defendants/Cross-Complainants Robert Maron and Robert Maron, Inc. (Defendants) entered  a Settlement Agreement and General Release of All Claims (the Settlement Agreement) whereby they agreed to dismiss this action on or before 11/13/19 with this Court retaining jurisdiction to enforce the Settlement Agreement pursuant to CCP 664.6.  (See Carmi Decl., Ex.A-C).  On 11/14/19, the Court dismissed the action and retained jurisdiction pursuant to CCP 664.6 to enforce the terms of the Settlement Agreement, including judgment.  (Carmi Decl., Ex.D).

THE SETTLEMENT AGREEMENT

Pursuant to the Settlement Agreement, the parties would release all claims asserted in the action and Defendant Robert Maron, Inc. would pay Plaintiffs as follows: 

(1)  A total Settlement Amount of $1,019,000;

(2) An initial settlement payment of $19,000.00 to be made to Plaintiffs no later than 12/13/19;

(3) Delivery to Plaintiffs of an unsecured promissory note (the Settlement Note) in the principal amount of $1,000,000.00 with interest accruing from January 1, 2020 at a rate of seven percent (7%) per annum on the unpaid principal balance, with all outstanding principal and interest due on or before the tenth anniversary date of the note (i.e., by 1/1/30).  (Carmi Decl., Ex.B)

(4) Monthly installment payments under the Settlement Note to begin 1/31/20 with subsequent monthly payments due on the last day of each consecutive month,  with minimum monthly payments to be as follows:

(a) Year 1: $6,000 per month

(b) Year 2: $7,000 per month

(c) Year 3: $8,000 per month

(d) Year 4: $9,000 per month

(e) Years 5 through 10: $10,000 per month

(5) Each party to bear its own costs and attorneys’ fees related to the entire Action but that Plaintiffs may recover their attorneys’ fees incurred in enforcing Defendant’s payment obligations and the Settlement Note as set forth above.  (Carmi Decl., Ex.A, ¶5). 

As noted above, the Settlement Agreement also provides that it would be enforceable under CCP 664.6.  (Carmi Decl., Ex.A, ¶10; Ex.C, p.2). 

BREACH

Defendants have breached the Settlement Agreement as a result of Defendant Robert Maron, Inc.’s failure to pay to Plaintiffs six of the $6,000 payments due in 2020, eight of the $7,000 payments due in 2021, and six of the $8,000 payments due in 2022 through June 2022, which were due to Plaintiffs under the terms of the Settlement Agreement and Settlement Note.  (Carmi Decl., Ex.E).   

Under the terms of the Settlement Note, the borrower’s breach gives Plaintiffs the right to accelerate the maturity date, which Plaintiffs have done and hereby do.  As of the filing of the motion on 6/13/22, the balance of the principal due, owing and unpaid is $1,119,639.47.  (Carmi Decl., Ex.E in the third column titled “Principal at End of Month” for June 2022). 

Based on the foregoing, Plaintiffs filed the instant motion seeking an order that Judgment be entered in favor of Plaintiffs and against Defendant Robert Maron, Inc. in the amount of the outstanding sum due, owing and unpaid under the Settlement Agreement and Settlement Note as of the date of filing this action, which is $1,119,639.47.  Additionally, Plaintiffs request payment of their attorney’s fees, per post-judgment motion and costs per cost bill incurred by Plaintiffs in connection with this action to enforce the settlement agreement.

Defendant Robert Maron, Inc. has filed and served a late opposition to the motion.  Despite the late filing of the opposition, it was considered by the Court.  See CRC 3.1300(d).

ANALYSIS

CCP 664.6 provides, in relevant part, “[i]f 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 Agreement until performance in full of the terms of the settlement.”

The opposition does not dispute that Defendant Robert Maron, Inc. has not paid the sums due under the Settlement Agreement or the amount owing to Plaintiffs.  Rather, the opposition contends that Plaintiffs must file a separate action on the Settlement Note because, according to Robert Maron, Inc., the Settlement Note is not part of the Settlement Agreement which may be enforced pursuant to CCP 664.6.  The Court disagrees. 

The Settlement Agreement provides that “[t]he parties agree to a complete and final settlement of the Action in the amount of One Million Nineteen Thousand Dollars ($1,019,000.00), payable by Defendant Robert Maron, Inc., to Plaintiffs as specified herein (‘Settlement Amount’).”  (Carmi Decl., Ex.A, p.2 §5.a.).  Additionally, the Settlement Agreement sets forth a payment schedule of monthly installments with interest at 7%.  (Id. at §5.c).  The Settlement Agreement also provides “that Plaintiffs may recover attorneys’ fees incurred in enforcing Defendants’ payments obligations and the Settlement Note set forth in this Section 5.”  (Id. at §5.d).  Further, the Settlement Agreement clearly references the Settlement Note.  (Id. at §5.c).

The Settlement Agreement need not specifically state that it incorporates the Settlement Note.  Rather, the clear reference to the Settlement Note and its terms in the Settlement Agreement is sufficient for it to be part of the Settlement Agreement.  See Shaw (1997) 58 CA4th 44, 53-54.   As such, the terms of the Settlement Note, the keys terms of which are set forth in the Settlement Agreement, must be considered and construed as part of the Settlement Agreement.  See Holbrook (1948) 84 CA2d 700, 701; Baker (1989) 216 CA3d 1259, 1264.

Similarly, under the general principle of joint construction of several instruments, the Settlement Agreement and Settlement Note must be considered and construed together as if they are one.  See Civil Code 1642; Boyd (1989) 210 CA3d 368, 378; Housing Authority (1985) 164 CA3d 348, 353-354; Nevin (1975) 45 CA3d 331, 338; Harm (1960) 181 CA2d 405, 413-414; Holguin (2014) 229 CA4th 1310, 1320-1321.

This is not a case where the Court is imposing more restrictive or less restrictive or different terms than those contained in the Settlement Agreement between Plaintiffs and Defendants.  See Hernandez (2004) 126 CA4th 1161, 1176.  Rather, the Court is merely enforcing the terms of the Settlement Agreement and the incorporated Settlement Note under CCP 664.6 pursuant to the parties agreement.

Plaintiffs are ordered to submit a separate proposed Judgment which sets forth that judgment will be entered in favor of Plaintiffs Bruria Carmi and Meir Carmi and against Defendant Robert Maron, Inc., a California corporation in the amount of $1,119,639.47, attorney’s fees to be determined pursuant to a post-judgment motion and costs to be determined pursuant to a memorandum of costs for the attorney’s fees and costs incurred in enforcing the settlement agreement.