Judge: Teresa A. Beaudet, Case: 20STCV18014, Date: 2023-03-10 Tentative Ruling

Case Number: 20STCV18014    Hearing Date: March 10, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background 

Plaintiff Wesco Insurance Company (“Plaintiff”) filed this action on May 11, 2020 against Defendant Native Creations Inc. and dba Creative Innovations (“Defendant”). The Complaint asserts multiple causes of action for breach of contract.

Plaintiff indicates that this action has been settled by way of a written settlement agreement (the “Settlement Agreement”). (Aires Decl., ¶ 3, Ex. A.)

On January 12, 2022, the Court issued a minute order providing, inter alia, that “[t]he Court orders the Complaint filed by Wesco Insurance Company on 05/11/2020 dismissed without prejudice. The Court retains jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6.”

Plaintiff now moves for entry of judgment in accordance with the Settlement Agreement against Defendant, “with vacatur of any dismissal.” The motion is unopposed.

Discussion

Pursuant to Code of Civil Procedure section 664.6, subdivision (a), “[i]f 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).)

Here, Section 2(A)(i) of the parties’ Settlement Agreement provides that “[a]s consideration for this agreement, [Defendant] shall: (i) Timely pay by cashier’s check or other good and sufficient funds…A total of $45,255.00…to be paid by way [sic] six equal monthly payments of $7,542.50 due on the 15th of each month, commencing on or before February 15, 2022…” (Aires Decl., ¶ 3, Ex. A, p. 3.)

Section 2(A)(ii) of the Settlement Agreement provides that “[a]s consideration for this agreement, [Defendant] shall:…(ii) Stipulate hereby that [Plaintiff]…shall have judgment in the Action against [Defendant]…in the principal sum of $12,657.00, together with prejudgment interest of $3.46 per day from December 8, 2017 using the legal rate of 10% per annum; plus the principal sum of $17,733.00, together with prejudgment interest of $4.85 per day from October 30, 2017 using the legal rate of 10% per annum; plus the principal sum of $16,215.00, together with prejudgment interest of $4.44 per day from October 23, 2017 using the legal rate of 10% per annum; plus the principal sum of $13,824.00, together with prejudgment interest of $3.78 per day from November 1, 2018 using the legal rate of 10% per annum; plus the principal sum of $3,168.00, together with prejudgment interest of $0.86 per day from September 9, 2019 using the legal rate of 10% per annum; plus the principal sum of $1,710.00, together with prejudgment interest of $0.46 per day from August 16, 2019 using the legal rate of 10% per annum, plus costs of suit of $535.00, and $1,500.00 in attorney’s fees incurred in seeking judgment, less any credits for payment(s) made pursuant to this Agreement (the ‘Judgment’), entry of which shall be stayed unless there be an event of default under this Agreement and failure to cure as hereinafter provided…” (Aires Decl., ¶ 3, Ex. A, pp. 3-4, emphasis omitted.)

Plaintiff asserts that Defendant is in default for having failed to make all payments due under the terms of the Settlement Agreement. (Aires Decl., ¶ 4.) Plaintiff indicates that only one payment of $7,542.50 has been made by Defendant. (Aires Decl., ¶ 4.) 

Section 3(A) of the Settlement Agreement provides that “[i]n the event of a default in the timely payment of any of the payments required by this Agreement, and after seven days’ written notice of default in the manner and to the address(es) set forth in Section 3.L hereinbelow, then [Plaintiff] may apply, at its election either by ex parte or noticed motion, for entry of the Judgment by the Court in the Action.” (Aires Decl., ¶ 3, Ex. A, pp. 4-5.) Plaintiff states that on May 19, 2022, Plaintiff made a request in writing pursuant to the terms of the Settlement Agreement that Defendant cure the default in payment(s) due under the settlement, but the default has never been cured. (Aires Decl., ¶ 5, Ex. B.) Plaintiff’s counsel’s May 19, 2022 letter is addressed to the address for Defendant set forth in Section 3(L) of the Settlement Agreement. (Ibid.)

Based on the foregoing, and in light of the lack of any opposition, the Court finds that Plaintiff has demonstrated grounds for the Court to enter judgment pursuant to the terms of the parties’ Settlement Agreement. As set forth above, the Court’s January 12, 2022 minute order provides that “[t]he Court retains jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6.” 

Lastly, the Court notes that Plaintiff seeks a “vacatur of any dismissal” (Mot. at p. 2:11), but the Memorandum of Points and Authorities in support of the motion does not contain any discussion or citation to legal authority regarding the Court vacating the dismissal. Thus, the Court declines to do so.

Conclusion  

Based on the foregoing, Plaintiff’s motion is granted in part.

The Court orders that that Plaintiff shall have judgment against Defendant in the principal sum of $12,657.00, together with prejudgment interest of $3.46 per day from December 8, 2017 using the legal rate of 10% per annum; plus the principal sum of $17,733.00, together with prejudgment interest of $4.85 per day from October 30, 2017 using the legal rate of 10% per annum; plus the principal sum of $16,215.00, together with prejudgment interest of $4.44 per day from October 23, 2017 using the legal rate of 10% per annum; plus the principal sum of $13,824.00, together with prejudgment interest of $3.78 per day from November 1, 2018 using the legal rate of 10% per annum; plus the principal sum of $3,168.00, together with prejudgment interest of $0.86 per day from September 9, 2019 using the legal rate of 10% per annum; plus the principal sum of $1,710.00, together with prejudgment interest of $0.46 per day from August 16, 2019 using the legal rate of 10% per annum, plus costs of suit of $535.00, and $1,500.00 in attorney’s fees incurred in seeking judgment, less any credits for payment(s) made pursuant to the Settlement Agreement.

Plaintiff is ordered to file and serve a proposed judgment within 10 days of the date of this Order, with a courtesy copy delivered to Dept. 50. 

Plaintiff is ordered provide notice of this Order.

DATED:  March 10, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court