Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiffs Gaylord & Nantais, APC, Ned Gaylord, and Thomas Nantais (collectively “Plaintiffs”) filed this breach of contract action against defendant 1644 Wilshire LLC alleging failure to perform under the Lease. The complaint sets forth three causes of action for (1) specific performance – breach of contract, (2) damages for breach of contract, and (3) declaratory relief. 

On September 19, 2024, Plaintiffs filed the instant motion to enforce the Settlement Agreement entered between the parties on May 24, 2024 pursuant to CCP § 664.6. Plaintiffs assert that Defendant has failed to comply with the Settlement Agreement by failing to timely make the first of four equal $27,500 installment payments, and have further failed to pay the second installment. 

Any opposition was due on or before October 11, 2024. Defendant filed an untimely opposition two days before the hearing on October 22, 2024. The Court will not consider such a late brief. 

 

II. LEGAL STANDARD 

Pursuant to CCP § 664.6: “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.”¿ 

For purposes of this section, a writing is signed by a party if it is signed by any of the following:¿ 

(1) The party.¿ 

(2) An attorney who represents the party.¿ 

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.¿ 

(CCP §664.6(b).)¿¿ 

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Thus, to enforce a written settlement agreement under CCP section 664.6, the following three elements must be met: (1) the parties must have come to a meeting of the minds on all material points; (2) there must be a writing that contains the material terms of the agreement; and (3) the writing must be signed by the parties. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797-98.)¿ 

“If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.”¿ (Civ. Code, § 1657; see also Patel v. Liebermensch (2008) 45 Cal.4th 344, 352, fn. omitted [“In the absence of a specified time of payment, a reasonable period is allowable under Civil Code section 1657.”].)¿ 

 

III. DISCUSSION 

Here, the Settlement Agreement provides in pertinent part the following:  

“THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter referred to as "Agreement" is made and entered into by and between GAYLORD AND NANTAIS APC (hereinafter referred to as "Plaintiff/Cross-Defendant"), and 1644 WILSHIRE LLC (hereinafter referred to as "Defendant/Cross-Plaintiff”). (Plaintiff/Cross-Defendant and Defendant/Cross-Plaintiff collectively referred to as the "Parties"). 

… 

Defendant/Cross-Plaintiff shall pay Plaintiff/Cross-Defendant the gross sum of One Hundred and Ten Thousand Dollars and Zero Cents ($110,000.00) via check made payable to Gaylord and Nantais ("Settlement Payment"). Payment shall be made in four (4) equal installments of $27,500.00 to be paid every ninety (90) days with the first installment due within five (5) days of the joint execution of this agreement. 

… 

The Parties agree to terminate their lease involving 1644 Wilshire LLC. Termination will include all additional lease options to renew the lease. Plaintiff/Cross-Defendant agrees to transfer all rights to the sign installed at 1644 Wilshire Building, in favor of Defendant/Cross-Plaintiff. 

… 

As a material inducement to Defendant/Cross-Plaintiff to enter into this Agreement, Plaintiff/Cross-Defendant hereby irrevocably and unconditionally releases, acquits, and forever discharges Defendant/Cross-Plaintiff and each of Defendant's owners, shareholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, insurers, divisions, subsidiaries, affiliates (and agents, directors, officers, employees, representatives, attorneys, or insurers of such divisions, subsidiaries, and affiliates ["Plaintiff/Cross-Defendant Releasees"]), and all persons acting by, through, under, or in concert with any of them, or any of them, from any and all complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, costs, losses, debts, and expenses (including attorneys' fees and costs actually incurred) […] 

…. 

In any action or other proceeding to enforce rights hereunder, the prevailing party shall receive an award of costs and expenses related to such proceeding, including reasonable attorneys' fees. Further, this Agreement may be enforced pursuant to California Code of Civil Procedure section 664.6 in the Los Angeles Superior Court.” 

(Nantais Decl. Exh. 1.) 

The Agreement submitted by Plaintiffs was signed by Thomas Nantais on behalf of Gaylord & Nantais, APC, Defendant, and their respective Counsels. (Ibid.) Although Plaintiff Ned Gaylord did not sign the Settlement Agreement, he is the direct beneficiary, and his signature is not required. (See Provost v. Regents of University of California (App. 4 Dist. 2011) 135 Cal.Rptr.3d 591 [Statutory procedure to enforce stipulation for settlement does not require that the agreement be executed by every party to the action who benefits from it].) Further, the agreement contains all material terms for the settlement. Plaintiffs assert they have fully performed under the Settlement Agreement by providing Defendant a release of liability and early termination of the commercial lease, in addition to returning possession of the office space to Defendant along with the electronic sign.¿Accordingly, the statutory requirements of Section 664.6 have been met. The motion to enforce the settlement agreement is therefore granted. 

Plaintiffs further seek prejudgment interest due on the first installment and second installment for a total of $1,551.18. attorney fees in the amount of $7,875.00, and costs of $60 for the filing fee. Here, the Settlement Agreement provides that the prevailing party shall receive costs and expenses, such as attorneys’ fees. However, there is no provision allowing Plaintiffs to seek any prejudgment interest on overdue payments should the Agreement be enforced under section 664.6. The request for prejudgment interest is therefore denied. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal. App. 4th 1367, 1375 [While the court has the authority to refuse to issue a requested consent judgment, what the court cannot do in considering approval of a settlement under the statute authorizing judgment enforcing settlement agreement is to add to or modify an express term of the settlement.].) 

In terms of attorney fees, Plaintiffs’ counsel declares he spent 4.2 hours between June 1, 2024 and August 31, 2024 monitoring Defendant’s lack of performance and corresponding with Plaintiff, 10.3 hours to prepare the instant motion and declarations, and anticipates 2 hours to review Defendants’ opposition and to prepare an reply, and 1 hour to attend the hearing, at a rate of $450/hour. The Settlement Agreement provides that the prevailing party may be awarded “reasonable” attorneys’ fees. The Court finds the amount of time sought to be excessive on its face. The monitoring of the matter and communication with Defendant are not directly related to the motion, and this relatively brief and straightforward motion should not have taken Plaintiffs’ counsel 10.3 hours to draft. Further, the Court finds it appropriate to not consider the anticipated time to oppose and prepare a reply, considering Defendant’s failure file a timely opposition. The Court therefore grants Plaintiffs 3 hours to draft the motion and 1 hour to attend the hearing at the requested rate of $450/hour for a total of $1,800.00 in attorney’s fees. Further, Plaintiffs are awarded the filing fee of $60.00 as costs. 

 

IV. CONCLUSION 

Pursuant to CCP § 664.6, Plaintiffs’ motion to enforce the settlement agreement is GRANTED. Judgment is entered against Defendant in the total amount of $110,000.00 as a full and final settlement of all claims against Defendant, in addition to $1,860.00 for attorneys’ fees and costs. 

 

Moving Party is ordered to give notice. 

 

DATED: October 23, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.