Judge Olivia Rosales, Case 20NWCV00518 2022-10-04 Tentative Ruling

Judge: Olivia Rosales, Case: 20NWCV00518, Date: 2022-10-04 Tentative Ruling

Case Number: 20NWCV00518 Hearing Date: October 4, 2022 Dept: SEC

TRADE HARVEST INDUSTRIAL, LTD. v. BAILEY 44, LLC

CASE NO.: 20NWCV00518

HEARING: 10/4/22 @ 10:30 AM

TENTATIVE RULING

Plaintiff Trade Harvest Industrial, Ltd.’s motion for modification of default judgment and attorney’s fees is DENIED.

Opposing Parties to give NOTICE.

Plaintiff Trade Harvest Industrial, Ltd. moves to amend the judgment pursuant to CCP §§473(d) and 1032, and CC § 1717, to add recovery of attorney’s fees.

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).)

On December 10, 2021, this Court through the Honorable Ann H. Park mediated a Settlement. (Saracheck Decl., ¶ 2.) The parties agreed that Defendants would pay $350,000 in three installments, 1) $150,000 on or before January 14, 2022; 2) $100,000 on or before February 15, 2022; and 3) $100,000 on or before
March 15, 2022. (Id.) Plaintiff complied with the Settlement but Defendants diverted the funds and never paid Plaintiff. (Id.) Defendants defaulted on payment to Plaintiff. (Id., ¶ 4.) On February 25, 2022, this Court entered Judgment against Defendants in the sum of $469,000, plus costs and any post-judgment interest accruing. (Id., ¶ 5.)

CCP § 473(d) is utilized for correcting clerical mistakes in judgments or setting aside a void judgment. There is no clerical mistake in the judgment, and the judgment is not void on its face.

CCP § 1032 and CC § 1717 are provisions that allow recovery of attorney’s fees to the prevailing party pursuant to statute, contract, or law. There is no contractual attorney’s fees provision in this case, nor are attorney’s fees recoverable by statute.

The December 10, 2021 Settlement Order provided that “each side to bear its own costs and Attorneys fees.”

Although the parties were supposed to formalize the oral agreement into an executed written settlement, and the written settlement would have contained an attorney’s fees provision in the event of default, Defendant did not sign the written settlement. Any such written settlement is not enforceable because both parties did not sign the agreement. Therefore, what the court has before it is an enforceable oral settlement entered into the minutes on December 10, 2021. That oral settlement did not contain the term that the defaulting party shall be responsible for attorney’s fees and costs in the event of a default.

Accordingly, the motion is DENIED.