Judge: Upinder S. Kalra, Case: 18STCV10136, Date: 2023-04-11 Tentative Ruling

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Case Number: 18STCV10136    Hearing Date: April 11, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   April 11, 2023                                    

CASE NAME:           Jing Gong, et al. v. Fred A. Wong, et al.

CASE NO.:                18STCV10136

MOTION TO ENFORCE SETTLEMENT AGREEMENT

MOVING PARTY: Plaintiff Jing Gong

RESPONDING PARTY(S): Defendant Te Chuan Chu (None filed as of April 6, 2023.)

REQUESTED RELIEF:

1.      An order enforcing the settlement, pursuant to CCP § 664.6.

TENTATIVE RULING:

1.       Motion to Enforce Settlement Agreement is GRANTED.

2.       Request for Attorneys’ Fees is GRANTED.

3.       Request for Pre-Judgment Interest is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On December 31, 2018, Plaintiffs Jing Gong, Paul Woloski, Ai Ying Gong, and GWG, Investment, LLC., filed a Complaint against Defendants Fred A. Wong, Wong & Mak, LLP, Te Chuan Chu, Ming Der Lin, Sincere Escrow, Inc., and Margaret Chiu for the following causes of action: (1) Quiet Title (2) Breach of Contract, (3) Conversion, (4) Money Had and Received. The complaint alleges that Defendants breached an agreement that the $230,836.00 proceeds from the sale of real property would be held in escrow, pending resolution of two other actions. Plaintiffs allege that Defendants breached the agreement by distributing the funds without Gong’s consent and before the final adjudication of the actions. 

On January 29, 2019, Defendants Fred A. Wong and Wong & Mak, LLP filed an Answer.

On February 22, 2019, Defendant Te Chuan Chu filed an Answer.

On March 19, 2019, Defendants Sincere Escrow, Inc. and Margaret Chiu filed a Demurrer with a Motion to Strike.

On April 15, 2019, Defendants Sincere Escrow, Inc. and Margaret Chiu filed an Answer.

On March 23, 2019, Defendants Fred A. Wong and Wong & Mak, LLP filed a Motion for Summary Judgment.

On May 24, 2022, Plaintiffs and Defendant Te Chuan Chu filed a Notice of Settlement.

On December 30, 2022, Plaintiff Jing Gong filed a Motion for Enforce Settlement and Request for Attorney Fees and Costs. No Opposition has been field as of April 6, 2023.

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.” 

ANALYSIS:

Plaintiffs move the court to enforce the settlement reached between the parties.

The parties reached a settlement prior to trial, and Plaintiffs indicate that all parties have performed under the settlement except for Defendant Te Chuan Chu. The Settlement Agreement, attached as Exhibit 1, indicates that Mr. Chu was to make monthly payments of $1,500 starting on July 1, 2022, and continue until the total amount of $15,000 was paid. Mr. Chu made the August 2022, but has failed to make any payments since. Exhibit 4 contains emails between the parties counsel, notifying Mr. Chu’s counsel that Mr. Chu had failed to make the September payment and on October 1^st, would be two months in arrears. In those same emails, Mr. Chu’s counsel indicates that Mr. Chu lost his income stream.

Plaintiffs argue that the court has the power to enforce the agreement. The stipulation entered between the parties in July 2022 includes a provision pursuant to CCP § 664.6, allowing the Court to retain jurisdiction to enforce the terms. Plaintiffs also argue that they will be severely prejudiced if the motion is not granted.

The Agreement provided indicates that under CCP § 664.6, the Court retains jurisdiction to enforce the terms of the agreement. Thus, under CCP § 664.6 allows the Court to enforce the agreement. It is evident that Defendant Chu has failed to make the required monthly payments. Therefore, the Motion is GRANTED.

            Motion to Enforce the Settlement is GRANTED.

Fees and Pre-Judgment Interest:

Plaintiffs also asserts that pursuant to the Settlement Agreement, attorneys’ fees shall be given to the prevailing party. Here, Plaintiffs request $10,268.91. This is based on 7.5 hours of research and an anticipatory 4.5 preparing the reply and attending the hearing, and the filing fees of $68.91. Counsel’s rate is $1,175.00 per hour, but is requesting a discounted rate of $850. Lastly, Plaintiffs argue that they are entitled to pre-judgment interest. The default occurred when Mr. Chu failed to pay any other payments after the initial payment. Therefore, the interest on the remaining balance of $13.500 is 10%, which is $3.69 per day, which would be $929.88.

Paragraph 6 of the Agreement indicates that the prevailing party shall be entitled to attorneys’ fees. According to CCP § 3287(a), “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.” Here, a settlement agreement was entered whereby Plaintiff was to receive $15,000 from Defendant Chu in monthly installments. Thus, because Defendant has failed to make the required payments, pre-judgment interest is appropriate.

A calculation of attorneys’ fees begins with the “lodestar” approach, under which the Court fixes the lodestar at “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005.) “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Ibid.)  In determining hourly rates, the court must look to the prevailing market rates in the relevant community. The hourly rate of $1,175 is excessive, as is the discounted rate of $850. No additional evidence was offered for justify this exorbitant rate. As such, the Court will rely on its experience and set the rate at $500 per hour. Even this is a premium rate that come with the expectation that the attorney also works in an efficient manner that reflects the premium paid for his or her services.

The Court has reviewed the motion and exhibits. The Court also reviewed the extensive litigation history. It is clear that this motion is a template and much of the history was copied from prior filings. Moreover, the points and authorities for a motion to enforce a settlement agreement is standard, boiler plate. Stated otherwise, the time spent on this motion should not have reasonable required an experienced litigator more than six hours to make slight factual modifications of existing boilerplates To be clear, the Court finds the reasonable lodestar amount, based upon its experience and knowledge of this type of litigation, the lack of novelty and complexity of this case, and in the absence of any written opposition to be $3,000. 

            Attorneys’ Fees and Pre-Judgment Interest is GRANTED, with $3,000 for attorneys’ fees and $929.88 for pre-judgment interest.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Enforce Settlement is GRANTED. Request for Attorneys’ Fees is GRANTED, for $3,000. Request for Pre-Judgment Interest Fees is GRANTED for $929.88.  

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             April 11, 2023             __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court