Judge: Teresa A. Beaudet, Case: BC707621, Date: 2025-01-22 Tentative Ruling

Case Number: BC707621    Hearing Date: January 22, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Mirna Roman (“Plaintiff”) filed this action on May 29, 2018 against Defendants Lowell A. Simon and Edgar Simon (jointly, “Defendants”). Plaintiff filed the operative First Amended Complaint on March 8, 2019, alleging seventeen causes of action.

Plaintiff indicates that on May 4, 2022, the parties entered into a Settlement Agreement and Release. (Wagner Decl., ¶ 3, Ex. A.)

Plaintiff now moves for an order “enforcing the fully executed written settlement agreement,” and “entering judgment in accordance with the terms of the fully executed [s]ettlement [a]greement.” Plaintiff also seeks “attorneys’ fees and costs in the amount of $11,220.00 in favor of Plaintiff against Defendants Lowell A. Simon and Edgar Simon, jointly and severally.” The motion is unopposed.

Discussion

“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 the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and 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).)

“Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” ((Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 [internal citations omitted, emphasis in original].)

            As set forth above, Plaintiff seeks an order enforcing the parties’ the settlement agreement and entering judgment in accordance with the terms of the settlement agreement. Paragraph 2.1 of the parties’ “Settlement Agreement and Release” (herein, the “Settlement Agreement”) concerns “Settlement Payments” and provides, inter alia, as follows:

“In full and complete satisfaction of all disputes between the Parties, and to compensate Releasor[1] for alleged employment claims, personal injuries, attorneys fees and costs, and all other damages and claims, the Simon Trust shall pay or cause to be paid to Releasor and her attorneys, the sum of $65,000, as follows:

1) Within 90 days upon the death of Edgar Simon, the sum of $5,000 per month, commencing the first of each month, and continuing the first of each consecutive month, over thirteen months, until said $65,000 is paid in full.

2) All checks shall be made payable to ‘Reisner & King Attorney Client Trust Account’, and a 1099 shall be issued to Reisner & King LLP…The checks shall be delivered on the first of each month to Reisner & King LLP, located at 15303 Ventura Blvd., Suite 1260, Sherman Oaks, California 91403.

3) Lowell Simon shall immediately report the death of Edgar Simon to Releasor’s attorneys thru counsel, which shall trigger the 90 days start time for Simon to make the first payment, and consecutive payments.

4)

5) The Court shall retain jurisdiction over the material terms set forth above pursuant to CCP sec. 664.6 to monitor and/or enforce the settlement terms hereof.” (Wagner Decl., ¶ 3, Ex. A.)[2]

In his supporting declaration, Plaintiff’s counsel states that “[o]n June 24, 2024, it was Plaintiff’s counsel, Adam Reisner, not Defendants’ counsel as the Settlement Agreement required, who reached out to confirm the death of Defendant Edgar Simon and requested a date certain to expect payment on the settlement.” (Wagner Decl., ¶ 4.) Plaintiff’s counsel states that

“Defendants’ counsel, Dana Cole, confirmed that not only had Defendant Edgar Simon died, but it had been a ‘few weeks’ since his passing. Yet, despite paragraph 2.1(3) where Defendants were to ‘immediately report the death of Edgar Simon to [Plaintiff’s] attorneys,’ Mr. Cole stated that she ‘was giving Lowell 30 days to deal with it.’” (Wagner Decl., ¶ 5.) Plaintiff’s counsel states that “[a]s of the date of the filing of this Motion, Defendants have refused to tender a single payment to Plaintiff and have refused to give a date certain as to when Plaintiff can expect her settlement, in violation of the Settlement Agreement.” (Wagner Decl., ¶ 8.)

As discussed, pursuant to Code of Civil Procedure section 664.6, “[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.” (Code Civ. Proc., § 664.6, subd. (a).) Based on the foregoing, the Court finds that Plaintiff has demonstrated grounds for the Court to enter judgment pursuant to the terms of the parties’ Settlement Agreement. (Wagner Decl., ¶ 3, Ex. A.) Defendants do not oppose the instant motion, and thus do not dispute Plaintiff’s request that the Court enter judgment in accordance with the terms of the Settlement Agreement.  

The Court notes that in the “Conclusion” section of the motion, Plaintiff states that she seeks, inter alia, “$65,000.00 for amounts past due pursuant to the Settlement Agreement.” (Mot. at p. 9:12-13.) However, Plaintiff’s request for a judgment of $65,000.00 is not included in Plaintiff’s notice of motion. The Court notes that pursuant to California Rules of Court, rule 3.1110, subdivision (a), “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” In addition, the Court does not find that Plaintiff has demonstrated that 13 months has passed since the death of Edgar Simon, such that she is currently entitled to $65,000.00. As set forth above, the Settlement Agreement provides, inter alia, that “the Simon Trust shall pay or cause to be paid to Releasor and her attorneys, the sum of $65,000, as follows: 1) Within 90 days upon the death of Edgar Simon, the sum of $5,000 per month, commencing the first of each month, and continuing the first of each consecutive month, over thirteen months, until said $65,000 is paid in full.” (Wagner Decl., ¶ 3, Ex. A, ¶ 2.1.) Accordingly, the Court denies Plaintiff’s apparent request for a judgment of $65,000.00.

Lastly, Plaintiff asserts that she is entitled to attorney’s fees pursuant to Paragraph 8 of the Settlement Agreement. Paragraph 8 provides that “[i]n entering into this Agreement, the Parties agree that all Parties, Releasors and Releasees, shall bear all of their own fees and costs, including attorneys’ fees and costs of litigation arising from the claims described in the Recitals above, and that the payments described in Paragraph 2 above covers all of Releasor’s attorneys’ fees, and costs related to this matter. In the event of a breach of this agreement, the prevailing party shall be entitled to reasonable attorney fees and costs incurred to enforce the terms of this agreement.” (Wagner Decl., ¶ 3, Ex. A, ¶ 8, emphasis added.) As set forth above, Plaintiff’s counsel states that “[a]s of the date of the filing of this Motion, Defendants have refused to tender a single payment to Plaintiff and have refused to give a date certain as to when Plaintiff can expect her settlement, in violation of the Settlement Agreement.” (Wagner Decl., ¶ 8.)

Plaintiff seeks a total of $11,220.00 in attorney’s fees and costs. Plaintiff’s counsel Zachary Wagner states that his hourly rate is $400/hour. (Wagner Decl., ¶ 10.) Mr. Wagner states that “I have expended approximately seven (7) hours researching and drafting the motion. I expect to spend another two (2) hours reviewing, researching, and drafting any reply that might be necessitated. Thus, my total fees associated with this Motion are $3,600.00.” (Wagner Decl., ¶ 11.) Mr. Wagner also states that Plaintiff will incur a $495.00 court reporter fee in connection with the instant motion. (Wagner Decl., ¶ 12.) As set forth above, the instant motion is unopposed. Thus, the Court does not award attorney’s fees for Mr. Wagner’s anticipated two hours to review, research, and draft a reply. The Court deducts $800.00 (2 hours x $400/hr) from the total attorney’s fees requested for Mr. Wagner.

Plaintiff’s counsel Adam Reisner states that his hourly rate is $950/hour. (Reisner Decl., ¶ 3.) Defendant does not oppose the instant motion and thus does not assert that this requested hourly rate is unreasonable. Mr. Reisner states that “I estimate that I spent two (2) [sic] reviewing and corresponding with Defendant’s counsel regarding this matter. Additionally, I estimate that I have spent two (2) hours corresponding with Plaintiff and one-half (.5) hours corresponding with Mr. Wagner regarding this motion. I also anticipate spending three (3) hours reviewing the motion, opposition, and reply and attending the hearing on this matter. Thus, I estimate in good faith that I have spent approximately 7.5 hours in pursuit of this motion. The value of that time is $7,125.00.” (Reisner Decl., ¶ 15.) As discussed, the instant motion is unopposed. Thus, the Court does not award attorney’s fees for Mr. Reisner’s anticipated time to review an opposition and reply. The Court deducts $1,425.00 (1.5 hours x $950/hr) from the total attorney’s fees requested for Mr. Reisner.

Based on the foregoing, the Court grants Plaintiff’s request for attorney’s fees and costs in the total amount of $8,995.00.

Conclusion

Based on the foregoing, the Court grants Plaintiff’s motion for an order “entering judgment in accordance with the terms of the fully executed Settlement Agreement.”

The Court grants Plaintiff’s request for attorney’s fees and costs in part. The Court awards Plaintiff $8,995.00 in attorney’s fees and costs against Defendants, jointly and severally. 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 Department 50.

Plaintiff is ordered to provide notice of this Order. 

DATED:  January 22, 2025                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court