Judge: Ronald F. Frank, Case: 23TRCV01368, Date: 2024-08-13 Tentative Ruling

Case Number: 23TRCV01368    Hearing Date: August 13, 2024    Dept: 8

Tentative Ruling 

HEARING DATE:                 August 13, 2024 

CASE NUMBER:                  23TRCV01368

CASE NAME:                        Roswell Properties LLC, LTD v. Deals 4 All Seasons, Inc., et al.  

MOVING PARTY:                Plaintiff, Roswell Properties, LLC, LTD, an Ohio Limited Liability Company

RESPONDING PARTY:       Defendants, Deals 4 All Seasons Inc., Shiri Taylor Dangor (No Opposition)

TRIAL DATE:                        None set.

MOTION:                              (1) Motion for Order Vacating Dismissal to Enter Judgment Pursuant to Stipulation for Judgment

Tentative Rulings:                  (1) CONTINUE pending receipt of evidence of the partial payments and remaining balance owed, without which the Court has no basis for entry of a specific dollar amount in the proposed judgment.

I. BACKGROUND 

A.    Factual 

On May 1, 2024, Plaintiff, Roswell Properties, LLC, LTD (“Plaintiff”) filed a complaint against Defendants, Deals 4 All Seasons, Inc., Shiri Tayar Dangor, and DOES 1 through 10. The complaint alleges causes of action for: (1) Breach of Written Contract; (2) Breach of Written Contract – Enforcement of Personal Guaranty; (3) Money Lent; (4) Account Stated; (5) Book Account; and (6) Money Had and Received. The complaint is based on the allegation that on August 19, 2019, Defendant, Deals 4 All Seasons, Inc. (“Deals”) by and through its President and Secretary, Defendant Shiri Tayar Dangor (“Dangor”) executed and delivered to Wells Fargo Bank, National Association (“Wells Fargo”), a Business Lending Confirmation Letter (the “Credit Agreement”), for the renewal of Defendant Deals existing revolving credit line ending in 67-18, in the principal amount of $100,000 for the purpose of providing capital for the operation of Defendant Deals’ business. (Complaint, ¶ 8.) Plaintiff alleges that the Credit Agreement provided for a draw down period through February 15, 2020. (Complaint, ¶ 8.) Plaintiff has alleged that within the past four (4) years, pursuant to Code of Civil Procedure section 337, Defendant Deals breached the written agreements governing the loan by failing to make timely payments as required under the terms of the Agreement as modified, and by failing to repay all sums due after demand for payment, although timely demands were made by Plaintiff. (Complaint, ¶ 24.)

B.     Procedural

On July 9, 2024, Plaintiff filed this Motion for Order Vacating Dismissal to Enter Judgment Pursuant to Stipulation for Judgment. To date, no opposition has been filed.

II. ANALYSIS 

A.     Legal Standard

Under Code of Civil Procedure, section 664.6: 

 
(a) 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.

(b) 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.” 

B.     Discussion

Here, Plaintiff’s moving papers seek entry of judgment on the parties’ stipulation, on the grounds that Defendants are in default of a written Settlement Agreement that provided for periodic payments towards an agreed amount.  Plaintiff moves this Court to enter judgment pursuant to the signed Settlement Agreement and Stipulation for Judgment (“Stipulation”), entered into by and between Plaintiff and the Defendants, to enforce the terms of the same. Plaintiff contends that after the complaint was filed, the parties reached a full settlement of the matter on July 31, 2023. Accordingly, Plaintiff and the Defendants entered into a written Settlement Agreement that this Court retains jurisdiction over pursuant to Code of Civil Procedure section 664.6, which includes entering judgment in the event of a default in payments.

Pursuant to the terms of the Stipulation, Defendants were to pay the total sum of $66,250 over time commencing August 25, 2023. Built into the settlement agreement was a clause which provides that a failure to make any payment by its due date shall constitute a default under the terms of the settlement which contemplates immediate entry of judgment pursuant to the terms of the stipulation.

This Court notes that the Stipulation filed by Plaintiff on June 12, 2024 was signed by Defendant Dangor and Gerald A. Drake on August 24, 2023 and August 25, 2023. The Court verifies that paragraph three (3) of the Settlement states, “[i]n the event of a default under the written Settlement Agreement, [Plaintiff] shall have the immediate right to seek entry of this Stipulation for Judgment by filing such with the Court.” The Court finds the Stipulation to be valid and enforceable under Code of Civil Procedure section 664.6. Plaintiff’s counsel’s declaration provides that Defendants made monthly settlement payments of $3,500 to Plaintiff from August 2023 through October 2023, and then “partial payments” in unspecified amounts in the months thereafter.   (Declaration of Doug Harrah (“Harrah Decl.”), ¶ 10.)  The Harrah Decl. states that Defendants are in default, but it fails to provide a dollar amount of the remaining balance due and fails to specify the amount of the partial payments so the Court could calculate a balance due.  As such, Plaintiff is seeking this Court grant an order vacating the dismissal without prejudice of the entire action previously entered by this Court on October 23, 2023 as this Court retained jurisdiction pursuant to Code of Civil procedure section 664.6 so that Plaintiff may seek entry of judgment against Defendants Deals and Dangor pursuant to the signed stipulation for judgment. (Harrah Decl., Exhibit B.)

While the Court is inclined to vacate the dismissal, it cannot enter the proposed judgment because the moving papers fail to provide admissible evidence of the remaining balance due and of the partial payments made before this motion was filed.  Accordingly, the COurt tentatively would continue the hearing to allow Plaintiff to supply additional evidence and to give adequate notice to Defendants of the continued hearing in the event they are able to cure the default before the continued hearing, or to file opposing evidence bearing on the remaining balance due it any.   

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s for Order Vacating Dismissal to Enter Judgment Pursuant to Stipulation for Judgment is CONTINUED.

Plaintiff is ordered to give notice.