Judge: Peter A. Hernandez, Case: 23STCV22301, Date: 2024-12-10 Tentative Ruling

Case Number: 23STCV22301    Hearing Date: December 10, 2024    Dept: 34

Plaintiff Curbio, Inc.’s Motion to Enforce Settlement and Request for Attorney’s Fees is CONTINUED.

Background

            On September 15, 2023, Plaintiff Curbio, Inc. (“Curbio”) filed a complaint against Defendant Winston O’Mally (“O’Mally”) arising from a contract for construction and home improvements services in the amount of $141,356.44 alleging causes of action for:

1.                 Breach of Contract; and

2.                 Foreclosure of Lien.

On January 16, 2024, O’Mally filed a cross-complaint against Curbio alleging causes of action for:

1.                 Breach of Contract; 

2.                 Breach of Covenant of Good Faith and Fair Dealing; and

3.                 Cancellation of Written Instrument.

On January 16, 2024, O’Mally filed an answer to Curbio’s complaint.

On April 24, 2024, the court granted Curbio’s Stipulation and Order for Leave to Amend Complaint.

On May 20, 2024, Curbio filed its First Amended Complaint (“FAC”).

On June 24, 2024, O’Mally filed an answer to Curbio’s FAC.

On October 4, 2024, Curbio filed this Motion to Enforce Settlement. On November 25, 2024, O’Mally filed an opposition to Curbio’s motion. Curbio filed its reply on December 3, 2024.

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).) 

“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Weddington Prod., Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) In deciding motions made under Section 664.6, judges “must determine whether the parties entered into a valid and binding settlement.” (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.) 

Discussion

            Curbio contends that on September 4, 2024, the parties agreed to settle this case and entered into a Settlement Agreement providing that O’Mally would pay Curbio the sum of $162,500.00, within three (3) days of full execution of the Settlement Agreement. (Motion, at p. 3.) Curbio provides a copy of the Settlement Agreement. (Id., Exh. A.) Curbio’s counsel declares that O’Mally has not fulfilled its obligations under the Settlement Agreement and has engaged in a campaign to avoid his obligations. (Williams Decl., ¶¶ 2, 5.) Curbio also contends that O’Mally’s counsel has failed to respond to communications from Curbio after O’Mally failed to make payment. (Motion, at p. 3.) Curbio also argues that the Settlement Agreement allows for the recovery of attorney’s fees. (Id., at p. 5.)

            In opposition, O’Mally contends that at the time the parties entered into the Settlement Agreement, O’Mally believed that he had obtained a loan to pay the settlement in full. (Opp., at p. 3; O’Mally Decl., ¶ 5.) However, the loan commitment was revoked as O’Mally could not timely satisfy the requirements of the lender. (O’Mally Decl., ¶ 5.) O’Mally declares that he currently has a loan commitment for sufficient funds to pay the settlement amount. (Id., ¶ 6.) However, O’Mally requires time for the loan documents to be drafted and for escrow to open. (Ibid.) As such, O’Mally request a continuance on the hearing of this motion for thirty (30) days, on or after January 13, 2025. (Id., ¶ 8.)

Based on the foregoing, it appears that O’Mally will complete performance under the Settlement Agreement by obtaining a loan for the settlement amount. The court thus continues the hearing on this motion to January 15, 2024 at 9:30 a.m. The parties are to file declarations on or before January 10, 2025, informing the court whether O’Mally has obtained a loan to pay the settlement agreement and/or has fulfilled its terms. If performance under the Settlement Agreement has not been completed by that date, the court is inclined to grant the motion.

Conclusion

Plaintiff Curbio, Inc.’s Motion to Enforce Settlement is CONTINUED.