Judge Theresa M. Traber, Case Number: 20STCV32007, Date: 2023-08-14 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV32007, Date: 2023-08-14 Tentative Ruling

Case Number: 20STCV32007 Hearing Date: August 14, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 14, 2023 TRIAL DATE: VACATED

CASE: Diane Bradley, et al. v. Swagg Media, Inc., et al.

CASE NO.: 20STCV32007

MOTION TO ENFORCE SETTLEMENT

MOVING PARTY: Plaintiffs Diane Bradley and DAB Promotions, LLC

RESPONDING PARTY(S): No response on eCourt as of 8/9/23.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract and fraud action that was filed on August 21, 2020. Plaintiffs allege that the parties entered into a joint venture agreement in 2019 regarding the promotion and production of an event called the Fall Ball All Star Event. Plaintiffs contend that Defendants misrepresented that the event was scheduled for March 21, 2020, and that certain celebrities would appear.

Plaintiffs move to enforce a settlement agreement between the parties and for an award of attorney’s fees pursuant to the agreement.

TENTATIVE RULING:

Plaintiffs’ Motion to Enforce Settlement is GRANTED. Plaintiffs are directed to file and serve a separate proposed judgment within 10 days of this order.

Plaintiffs are awarded attorney’s fees in connection with this motion in the amount of $960.

DISCUSSION:

Plaintiffs move to enforce a settlement agreement reached by the parties and to enter judgment thereon. Plaintiffs also seek attorney’s fees and costs incurred due to Defendants’ failure to comply with the agreement.

Legal Standard

Enforcement of settlement agreements is governed by Code of Civil Procedure section 664.6. This statute provides, in relevant part:

If the 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(a).) The Court is empowered under this section to resolve reasonable disputes over the terms of a settlement. (Machado v. Myers (2019) 39 Cal.App.5th 779, 795.) The Court does not insert provisions into the parties’ agreement, but applies the rules of contractual interpretation to interpretation of the settlement. (Id. at 792.) When extrinsic evidence is necessary, the Court may decide the motion on declarations alone. (Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97.)

Terms of Settlement

The parties executed a written settlement agreement outside the presence of the Court on June 2, 2023. (Declaration of Anna-Sophie Tirre ISO Mot. ¶ 2, Exh. A.) Plaintiffs have provided a copy of this agreement, which was signed and dated by Defendant Craig Nobles on behalf of himself and Swagg Media, Inc., on June 1, 2023, and signed by Plaintiff Diane Bradley, on behalf of herself and DAB Promotions, LLC on June 2, 2023. (Id.)

The relevant terms of the settlement are that, in exchange for a full resolution of this dispute, Defendants will pay to Plaintiffs the sum of $292,317 by way of a single wire transfer or check within thirty days of the date of the agreement. (Tirre Decl. Exh. A. ¶ 2.) Paragraph 10 of the agreement provides, as to enforcement of the settlement:

The parties agree to work diligently to finalize the settlement mechanics, and will jointly request that the court retain jurisdiction to enforce the settlement pursuant to Cal. Code Civ. Pro. § 664.6.

(Tirre Decl. Exh. A. ¶ 10.) The Court notes that although this statement does not, in the strictest sense, request that the Court retain jurisdiction to enforce the terms of the agreement, it explicitly manifests an intention that the Court do so. “A court should not have to resolve doubts or disputes as to whether an intention to retain jurisdiction is found in the provisions of a writing or an oral statement” in enforcing a settlement (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.) However, as judgment has not yet been entered in this case, it is axiomatic that the Court retains jurisdiction to hear this motion, notwithstanding the exact language of this provision.

Performance Under Settlement

Plaintiffs contend that Defendants have refused to comply with their obligations under the settlement by refusing to pay Plaintiffs the sum of $292,317 before July 2, 2023. (Tirre Decl. ¶ 3.) Plaintiffs state that, to date, no settlement payment has been made. (¶¶ 3, 5.) Under the terms of the settlement, Plaintiffs’ sole obligation, other than the release of claims, was to inform the Court that the parties reached a settlement upon receipt of the executed agreement, and ask the Court to set an Order to Show Cause hearing regarding the settlement 45 days after. The Court received this Notice of Settlement on June 2, 2023, the same date this agreement was executed. (Notice of Settlement.) Plaintiffs have therefore complied with their obligations under the settlement agreement, and have demonstrated that Defendants have not reciprocated.

As Defendants have not responded to this motion, the Court concludes that Defendants have not complied with their obligations under the settlement agreement, and Plaintiffs are entitled to enforce the agreement against them.

Attorney’s Fees

Plaintiffs also seek attorney’s fees incurred in connection with this motion.

Paragraph 10 of the agreement provides that “[t]he prevailing party in any action to enforce the terms of this Agreement shall be entitled to recoup all reasonable costs and attorney’s fees incurred as a result of any breach of this Agreement.” (Tirre Decl. Exh. 10.) Plaintiffs, as the prevailing party on this motion, are entitled under the terms of the agreement to seek attorney’s fees.

Here, Plaintiffs request an award of $4,180, based on 6.8 hours incurred in connection with this motion and the previous ex parte application to enforce the settlement at a rate of $325 per hour, 1.1 hours incurred at $500 per hour, four additional anticipated hours at $325 per hour, and $120 in filing fees on both the ex parte application and this motion. (Tirre Decl. ¶ 9.) The Court is not inclined to award anticipated hours not actually incurred, nor does the Court think it appropriate and reasonable to award attorney’s fees incurred in connection with an improper ex parte application to enforce a settlement. (See July 11, 2023 Minute Order.) The Court will therefore reduce the award to $960, reflecting 2.0 hours at $325 per hour, one half hour at $500 per hour, and $60 in filing fees.

CONCLUSION:

Accordingly, Plaintiffs’ Motion to Enforce Settlement is GRANTED. Plaintiffs are directed to file and serve a separate proposed judgment within 10 days of this order.

Plaintiffs are awarded attorney’s fees in connection with this motion in the amount of $960.00.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 14, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.