Judge: Michael Shultz, Case: 22STCV19126, Date: 2024-12-03 Tentative Ruling
Case Number: 22STCV19126 Hearing Date: December 3, 2024 Dept: 40
22STCV19126 Firefly Transportation, LLC v. Cardinol
Transportation, Inc.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint filed on June 10, 2022, alleges one cause of action for declaratory
relief with respect to a written agreement between the parties dated May 16,
2022, settling their differences. An actual controversy has arisen as the
parties dispute the validity of the agreement.
Defendant
filed a cross-complaint for breach of contract, breach of the implied covenant
of good faith, undue influence, and unfair business practices.
The
parties filed a settlement agreement on August 6, 2024. On September 30, 2024, Defendant
filed a motion to enforce the settlement agreement which the Hon. Anne
Richardson denied because Defendant sought to impose an additional 3.8% fee on
Plaintiff for payments made by credit card, a provision that was not in the
agreement.
II.
ARGUMENTS
Contrary
to the caption, Defendant brings this motion to again seek enforcement of the
settlement agreement and to mandate that Plaintiff comply with the settlement
terms. The parties settled this matter on August 6, 2024. Defendant renews its
motion because Plaintiff stopped making the monthly payments of $4,642.86 since
September 2024. Plaintiff was also required to pay a “shortfall amount” of
$842.00.
Defendant
argues that at issue are the additional bank fee charges that are charged to
Defendant since Plaintiff is making payments by credit card. Defendant did not
intend to bear the costs of bank fees associated with credit card payments
which results in a “shortfall” after the bank fee is deducted from Plaintiff’s
monthly installment. The court should determine the parties’ intent as to how
bank charges would be treated. Defendant’s merchant advises that Plaintiff has
been making installment payments by issuing credit card advances which does not
conform to standard credit card processing protocols. Defendant is entitled to
an award of attorney’s fees and costs.
In
opposition, Plaintiff argues that Defendant did not give the required notice of
motion (only 13 days) and did not account for an additional two court days for
electronic service. The motion should be continued if Plaintiff cannot timely file
an opposition. Plaintiff has not been paying the monthly installment as agreed because
Defendant is attempting to modify the contract to force Plaintiff to pay by
check or cash when the agreement specifically permits payment by credit card. The
motion and request for attorney’s fees should be denied.
Defendant
did not file a reply brief by Friday, November 22, 2024, five court days before
the hearing. (Code Civ. Proc., § 1005 subd. (b).)
III.
LEGAL STANDARDS
A party
can move for entry of judgment pursuant to the terms of the settlement. (Code
Civ. Proc., § 664.6. The court’s power is limited to determining the
existence of the agreement and to enforce its settlement. (Corkland
v. Boscoe (1984) 156 Cal.App.3d 989, 994.) The court may receive
oral testimony or may determine the motion upon declarations alone. (Id.)
IV.
DISCUSSION
While Defendant did not give Plaintiff
statutory notice of motion, “[i]t is well settled that the
appearance of a party at the hearing of a motion and his or her opposition to
the motion on its merits is a waiver of any defects or irregularities in the
notice of motion.” (Carlton
v. Quint (2000) 77 Cal.App.4th 690, 697.)
Plaintiff was able to timely file an opposition which the court has considered.
The court finds that the parties
entered into a settlement agreement. (Mot., Ex. 101.) The court’s file reflects
that Judge Richardson previously denied Defendant’s motion to enforce
settlement and to require Plaintiff to cover bank fees associated with the
payments since the agreement contemplated payment by cash, check, or credit
card without any provision stating which party would pay for bank fees
associated with payment. (M.O.
10/23/24.) Defendant has not shown new or different facts or circumstances
that would warrant a renewed hearing on that issue. (Code Civ. Proc., § 1008
subd. (b).)
However,
Plaintiff admits it is has not paid the installments for the months in question
because of Defendant’s attempts to “modify” the contract terms. (Opp. 1:26-27.)
Defendant is not entitled to modification of the terms but is entitled to
enforcement of the settlement and entry of judgment pursuant to those terms. (Greisman
v. FCA US, LLC (2024) 103 Cal.App.5th 1310 [“If the court determines
that the parties entered into an enforceable settlement, it should grant the
motion and enter a formal judgment pursuant to the terms of the settlement.”])
The
court applies general contract principles when interpreting a settlement
agreement.
(Leeman v. Adams Extract & Spice, LLC (2015) 236
Cal.App.4th 1367, 1374.)The mutual intent of the parties
and interpretation of the contract are based on the language of the agreement
alone. (Id.; Viejo
Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 207
[“No matter how toothless the agreement may seem in retrospect, it is not the
province of the trial court to rewrite it and put in the teeth the complaining
side now thinks it should have had.”].
Defendant
is entitled to reasonable attorney’s fees and costs incurred in preparing this
motion as expressly stated in the settlement agreement. (Mot. Ex 101, 2:25-26.)
Additionally, even in the absence of a specific agreement permitting such
recovery in the event of a default, an award of costs is permitted. (Berti
v. Santa Barbara Beach Properties (2006) 145 Cal.App.4th 70, 75 [Costs
are incident to judgment and “may be awarded absent an express agreement of the
parties."].)
Defense
counsel requests $400 per hour and asserts that four hours were required to prepare
the motion and appear. The court finds that $400 per hour is reasonable and 2.5
hours to prepare the motion and appear is reasonable. Accordingly, the court
awards Defendant attorney’s fees of $1,000.00.
V.
CONCLUSION
Based
on the foregoing, Defendant’s motion is GRANTED. Defendant is entitled to entry
of judgment pursuant to the terms of the parties’ settlement agreement as
written. Plaintiff shall pay fees of $1,000 to Defendant within 10 days.