Judge: Peter A. Hernandez, Case: 21PSCV00897, Date: 2024-03-14 Tentative Ruling


Case Number: 21PSCV00897    Hearing Date: March 14, 2024    Dept: K

Plaintiff 99 Shopping Center LLC’s Motion to Enforce Settlement is GRANTED.

Background   

Plaintiff 99 Shopping Center LLC (“Plaintiff”) alleges as follows:

On or about May 16, 2019, Plaintiff and So Cal Development 1, LLC (“Lessee”) executed a written Shopping Center Net Lease (hereinafter “Lease”) whereby Plaintiff, as Master Tenant, leased the property located at 1015 South Nogales Street Unit 120 in Rowland Heights, California (“Premises”) to Lessee for the term from June 1, 2019 through July 31, 2024. In connection with the Lease, Plaintiff and Ginny Lin (“Guarantor”) entered into a Guaranty of Lease. Lessee failed to pay rent and other charges and abandoned the Premises. Guarantor has defaulted under the terms of the Guaranty of Lease.

On November 3, 2021, Plaintiff filed a complaint, asserting causes of action against Lessee, Guarantor (together, “Defendants”) and Does 1-20 for:

1.                  Breach of Lease

2.                  Breach of Guaranty

On August 1, 2023, a “Joint Notice of Settlement and Stipulation for Dismissal and Order Thereon” was entered.

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).)

Discussion

Plaintiff moves the court for an order, pursuant to Code of Civil Procedure § 664.6, enforcing the settlement and entering judgment in accordance with the terms of the settlement.

On or about August 1, 2023, Plaintiff and Defendants entered into a written “Stipulation and Mutual Release Agreement” (“Settlement”). (Truong Decl., ¶¶ 2 and 3, Exh. 1)[1]. Simultaneously with said Settlement, Plaintiff and Defendants executed a “Joint Notice of Settlement and Stipulation for Dismissal” (“Stipulation”), which was entered by the court on August 1, 2023.[2](Id.) Plaintiff’s counsel Tiffany Truong (“Truong”) sent a letter to Defendants on August 2, 2023 with final copies of the Settlement and filed Stipulation. (Id., ¶ 3, Exh. 1.)

Pursuant to the terms of the Settlement, Defendants agreed to pay Plaintiff, jointly and severally, the total sum of $100,000.00 (“Judgment Amount”), in $2,500.00 monthly installments, beginning on October 31, 2023 or within 90 days of the Effective Date[3] and continuing no later than the last day of each successive month thereafter until paid in full. (Id., ¶ 3, Exh. 1, ¶ 3).

Paragraph 4 of the Settlement provides as follows:

Entry of Judgment Upon Default. Upon a failure to timely tender payment

as described in the foregoing Paragraphs of this Agreement (a ‘Default’), and

after giving Defendants seven (7) business days written notice to cure the

Default, upon the failure of Defendant to cure, Plaintiff shall then be entitled

to enter judgment for the full Judgment Amount, less any payments that have

been previously been made and received, and shall have no obligation to

consider the judgment in the Civil Action satisfied until it is paid in its entirety.

Plaintiff shall be entitled to file an ex parte declaration of noncompliance

describing the Default, the giving of notice and the failure to cure, requesting

that judgment against Defendants, jointly and severally, and in favor of

Plaintiff enter for $100,000.00, less any payments made and received, plus

any associated filing fees or costs associated with filing said ex parte, and the

court shall enter judgment for said sum forthwith. Defendants shall be jointly

and severally liable for entry of any judgment entered against them under this

Agreement.

 

(Id., ¶ 3, Exh. 1, ¶ 4.)

On December 12, 2023, Truong sent written notice of default to Defendants, advising therein that no payments had been received and requesting that default be cured within 7 business days. (Id., ¶ 5, Exh. 2.)[4] Truong has not received any response to her letter and Defendants have not submitted any payment, as of the date of Truong’s declaration. (Id., ¶ 5; see also Chiang Decl., ¶ 3.)

Further, Paragraph 11.5 of the Settlement provides as follows:

Attorneys’ Fees. If any party to this agreement commences a judicial

proceeding to enforce any provision of this Agreement or is required to defend

a judicial proceeding commenced by any party to this Agreement, the

unsuccessful party or parties shall pay to the prevailing party or parties all of

his or its litigation costs, expenses and reasonable attorney’s fees incurred in

the action, including appellate and postjudgment proceeding.

 

(Id., ¶ 3, Exh. 1, ¶ 11.5).

Truong requests attorney’s fees and costs of $1,230.00 [calculated as follows: 2.6 hours preparing December 12, 2023 letter, corresponding with client re: default and preparing motion at $450.00, plus $60.00 filing fee].

The motion is granted. Plaintiff is awarded attorney’s fees and costs in the amount of $1,230.00.


[1]              Lessee, in opposition, argues that the Settlement is not enforceable on the basis that it “was signed by a person lacking the requisite authority to sign on behalf of Plaintiff,” specifically Victoria Chiang (“Chiang”) (Opp., 2:5-9). Lessee’s argument, which is not supported by any legal authority or evidence which would refute Chiang’s authority to sign the Settlement on behalf of Plaintiff, is rejected. Lessee also notes that Chiang’s signature is not notarized while the other signatures are. Plaintiff’s counsel Tiffany Truong (“Truong”), however, attests that on July 24, 2023, Lessee’s counsel Rodney Lewin (“Lewin”) specifically asked her to provide for Defendants to sign before a notary, and that prior to this request, there was no notary request in prior versions of the settlement. (Truong Decl., ¶ 3, Exh. A.) Truong further attests that she emailed Lewin the Settlement and Stipulation on July 28, 2023 which were signed by Chiang as Plaintiff’s agent and that at no time has Lessee, its attorneys of record, or any other party disputed the enforceability of the Settlement prior to Plaintiff’s receipt of Lessee’s opposition to the present motion. (Id., ¶¶ 3-5, Exhs. A and B.)

[2]              Truong explains that Plaintiff originally filed the case naming defendant “So Cal Development 1, LLC,” but discovered, when finalizing settlement, that said defendant had amended its name to “So Calif Development 1, LLC” effective on or about February 7, 2022, per its registration with the California Secretary of State. The Settlement and Stipulation added the correct entity name for clarification. (Truong Decl., ¶¶ 3 and 4, Exh. 1, ¶ 2.2).

[3]              The term “Effectuve Date” is defined as “the date that is the later of the date of execution of this Agreement by Plaintiff or Defendant as shown below the Parties’ respective signatures to this Agreement.” (Truong Decl., ¶ 3, Exh. 1, ¶ 1). The final signature date was August 1, 2023. (Id.)

[4]              Lessee’s contention that the “Notice of Default in Settlement” was improperly served because it was served on its counsel of record fails. As Plaintiff points out, the Settlement does not specify an address where notices of default are to be sent and Lewin remains Lessee’s counsel of record in this case. Further, Truong attests that Lewin never responded after she sent the “Notice of Default in Settlement” to him, nor did he ever give her permission to contact Lessee directly regarding its default of the Settlement. (Truong Decl., ¶ 7).