Judge: Stephen P. Pfahler, Case: 19CHCV00095, Date: 2022-10-26 Tentative Ruling

Case Number: 19CHCV00095    Hearing Date: October 26, 2022    Dept: F49

Dept. F-49

Date: 10-26-22 c/f 7-18-22

Case #19CHCV00095

Trial Date: N/A

ENFORCE SETTLEMENT

MOVING PARTY: Plaintiff, GLE-III, LLC

RESPONDING PARTY: Unopposed/Defendants, ER Pharmacy RX, Nancy Simonian, Samvel Khodzhumyan

RELIEF REQUESTED

Motion to Enforce Settlement Agreement

SUMMARY OF ACTION

On December 19, 2013, Plaintiff GLE-III, LLC entered into a five year lease with Defendant ER Pharmacy RX certain premises in Northridge. Rent started at a monthly rate of $4,059 and increased to $4,568.44/month by year five (original terms) though an “additional term” sheet was also listed as a starting base rent of $4,704.74 with an increase to $5,295.33. Defendant provided a $5,333.08 security deposit. Defendants Samvel S. Khodzhumyan and Nancy Simonian executed a personal guaranty.

Plaintiff alleges Defendant defaulted on the lease as of June 12, 2018. Plaintiff obtained a default judgment for possession of the premises on August 20, 2018, and Defendant vacated on September 18, 2018. Plaintiff represents the court also awarded$56,423.94 in damages. Plaintiff alleges the inability to relet the premises. Plaintiff alleges an outstanding balance of $37,028.21, but seeks “ a sum no less than $50,000.”

On February 7, 2019, Plaintiff filed a complaint for Breach of Lease, and Breach of Guaranty. On April 2, 2019, ER Pharmacy RX answered the complaint. Samvel S. Khodzhumyan, Nancy Simonian answered the complaint on April 30, 2019.

On March 2, June 8, and 9, 2021, the court granted writs of attachment as to Samvel S. Khodzhumyan, ER Pharmacy RX, and Nancy Simonian.

RULING: Granted.

Plaintiff, GLE-III, LLC moves for entry of judgment pursuant to the terms of the settlement agreement against all defendants. On August 30, 2021, the first day of trial, the parties announced their settlement of the case, and requested entry of judgment. The terms were presented as follows: $125,000 payable within 12 months of the agreement, pursuant to a specific articulated schedule. [Declaration of Kevin Kachman, Ex. A: Transcript, 23:1-24:20.] In case of any missed installment payment/breach of the settlement, Plaintiff may obtain a stipulated judgment for the amount of $180,492. [25:9-14.] Plaintiff and the individual defendants present assented to the terms in open court. [27:4-26.] The court dismissed the action. [27:27-28-8.]

Plaintiff represents Defendants failed to make any payments under the terms of the agreement. [Kachman Decl., ¶ 6.] A proposed judgment was submitted to the court on June 3, 2022. Plaintiff GLE-III, LLC now moves for entry of the stipulated judgment as to ER Pharmacy RX with enforcement secured under Code of Civil Procedure section 664.6. Plaintiff in reply notes the lack of any opposition to the motion. The judgment represents payment of $88,492.50 in damages, plus $92,000 in attorney fees and costs. [Kachman Decl., ¶ 4.]

Code of Civil Procedure section 664.6 provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside 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.)

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Accordingly, “parties” under section 664.6 means the litigants themselves, not their attorneys.  (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”).) Additionally, the settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.)

The terms were dictated to the court, as reflected in the August 30, 2021 minute order and transcript. [Kachman Decl., Ex. A.] Plaintiff also represented presentation of a written settlement agreement, which was not submitted to the court, due to the represented refusal of Defendants to execute said agreement. Given the court record and minute order however, the missing written agreement will not prevent entry of the order. (Code Civ. Proc., § 664.6.)

At the time of the July 18, 2022 hearing, Plaintiff only submitted a judgment conforming to the represented terms of the settlement as to ER Pharmacy RX ONLY, while still representing that the presented terms also reflected the settlement with Samvel S. Khodzhumyan and Nancy Simonian. The attached transcript of the dictated settlement also identified the parties as “defendants” (plural form). Because the court was unclear as to whether Plaintiff still intended to seek entry of judgment against the individual defendants under their guarantys, the court continued the hearing to October 26, 2022. The court also invited supplemental briefs, if necessary.

On August 22, 2022, the court entered the submitted judgment as to ER Pharmacy RX. On September 29, 2022, Plaintiff submitted a supplemental brief reiterating the basis of the motion. Plaintiff also admits to inadvertently omitting the individual gaurantors and seeks entry of an amended judgment. A proposed judgment was concurrently filed.

The motion remains unopposed. The court continues to find a basis for entry of the judgment against all parties pursuant to the stipulation. The September 29, 2022, submitted judgment conforms to the terms of the settlement. The court therefore strikes the August 22, 2022 judgment, and will enter the revised September 29, 2022 judgment, which includes the individual defendants.

Moving party to give notice.