Judge: Peter A. Hernandez, Case: 19PSCV00439, Date: 2022-08-10 Tentative Ruling

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Case Number: 19PSCV00439    Hearing Date: August 10, 2022    Dept: O

Plaintiff Quentin Pullen’s Motion to Enforce Settlement Agreement Under CCP § 664.6 is DENIED.

Background   

Plaintiff Quentin Pullen (“Plaintiff”) alleges as follows:

In or about October 20, 2015, Plaintiff Pullen entered into an oral contract with Collectizone Collision Center, LLC (“Collectizone”) and Eddie Ruiz (“Ruiz”), wherein Collectizone and Ruiz agreed to perform body work and paint Plaintiff’s 1951 Chevrolet pickup (“subject vehicle”) with primer paint for $10,000.00. Ruiz promised the restoration work would take approximately 3-6 months. Collectizone and Ruiz failed to provide Plaintiff with a written itemized estimate. The subject vehicle was returned to Plaintiff in or about December 2018, with damage to the radiator, fan, and frame rails as well as rust damage to the engine, interior and body panels due to exposure to the weather.

On May 13, 2019, Plaintiff filed a complaint, asserting causes of action against Collectizone, Ruiz and Does 1-20 for:

1.               Breach of Oral Contract

2.               Negligence

3.               Breach of Implied Covenant of Good Faith and Fair Dealing

4.               Violation of Consumer Legal Remedies Act

5.               Violation of the Unfair Competition Law

On March 9, 2021, Plaintiff filed a conditional “Notice of Settlement of Entire Case.”

An Order to Show Cause Re: Dismissal (Settlement) is set for August 10, 2022.

Legal Standard

“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.” (Code Civ. Proc., § 664.6, subd. (a).)

“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.” (Code Civ. Proc., § 664.6, subd. (b).) “In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.” (Code Civ. Proc., § 664.6, subd. (d).)

Discussion

Plaintiff moves the court for an order to enforce the parties’ “Stipulation Re: Settlement” (“Stipulation”) and to enter judgment against Collectizone and Ruiz, jointly and severally, in the amount of $23,402.00 (i.e., $40,000.00-$18,5000.00 in payments made, plus $1,782.00 in attorney’s fees).

On January 22, 2021, Plaintiff, Collectizone and Ruiz entered into the Stipulation. (Francis Decl., ¶ 3, Exh. A.) The Stipulation provides, in relevant part, as follows:

“2. Plaintiff will [sic] a Stipulated Judgment of $40,000. Plaintiff will dismiss the case with prejudice if defendants Eddie Ruiz/Collectizone Collision Center LLC pays $1000 per month for the first three months (2/15/2021, 3/15/2021 and 4/15/2021), $2500 on 5/15/2021 and seventeen (17) additional $1000 per month payments starting on 6/1/2021. The last payment is $500. Defendant shall make payment to plaintiff's counsel no later than the fifteenth day of each month.

3. If defendants default on this agreement/fail to make all timely payments, plaintiff will be entitled to enforce the Stipulated Judgment minus all payments and to seek enforcement attorneys' fees and costs in accordance with Code of Civil Procedure section 664.6 . . .

 7. This settlement may be enforced pursuant to Code of Civil Procedure § 664.6. . .”

(Id.)

Plaintiff’s counsel Thomas Francis (“Francis”) advises that, while Ruiz/Collectizone made the February 15, 2021 and March 15, 2021 payments, they did not make the April 15, 2021 payment which resulted in the filing of a previous motion to enforce settlement. (Francis Decl., ¶¶ 5-8.)[1] Francis advises that, since this missed April 15, 2021, he has had to contact Ruiz’s/Collectizone’s counsel, Danny Ceron, on a monthly basis to collect the monthly settlement payment. (Id., ¶ 6.)

Collectizone and Ruiz, in response, advise that they have substantially performed by staying up to date with all payments called for by the Stipulation. They represent that Plaintiff has received $19,500.00 worth of scheduled payments per the Stipulation, that they “are on pace to fully perform the agreement,” and that they only have two payments of $1,000.00 each (due August 15, 2022 and September 15, 2022, respectively) and one payment of $500.00 (due October 15, 2022) left. (Opposition, 2:2 and 2:28-3:4.) Collectizone and Ruiz have attached proof of their payments as Exhibits A-R.

Plaintiff, in turn, claims that the doctrine of substantial performance is only available when time is not of the essence. “The doctrine of substantial performance . . . applies when a party performs but misses a deadline. ‘[W]here time is not of the essence of a contract, payment made within a reasonable time after the due date stated in the contract constitutes compliance therewith.’” (Magic Carpet Ride LLC v. Rugger Investment Group, L.L.C. (2019) 41 Cal.App.5th 357, 364 [quoting Walsh v. Walsh (1940) 42 Cal.App.2d 287, 292].)

“The general rule is that time is not of the essence unless it has been made so by the express terms of a contract or is necessarily so from the very nature of the contract.” (Leiter v. Handelsman (1954) 125 Cal.App.2d 243, 250.) “[T]he prescribing a day at or before which, or a period within which, an act must be done, even with a stipulation that it shall be done at or before the day named, or within the period mentioned, does not render the time essential with respect to such an act. . . [i]n order to render time thus essential, it must be clearly and expressly stipulated that it shall be so; it is not enough that a time is mentioned during which or before which something shall be done.” (Miller v. Cox (1892) 96 Cal. 339, 345 [quotation marks and citation omitted].)

Here, the Stipulation does not contain “clear and express” language that time is essential. The motion is denied.