Judge: Upinder S. Kalra, Case: 22STCV19866, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV19866    Hearing Date: December 13, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   December 13, 2022                                        

CASE NAME:           Jacqueline Sailly v. Esau Eduardo Tenorio

CASE NO.:                22STCV19866

PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT

MOVING PARTY: Plaintiff Jacqueline Sailly

RESPONDING PARTY(S): None as of December 8, 2022.  

REQUESTED RELIEF:

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

TENTATIVE RULING:

1.       Motion to Enforce Settlement Agreement is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 17, 2022, Plaintiff Jacqueline Sailly (“Plaintiff”) filed a complaint against Defendant Esau Eduardo Tenorio (“Defendant.”) The complaint alleged one cause of action for breach of contract. Plaintiff alleges that the parties entered a Note Secured by Deed of Trust, but Defendant stopped paying the monthly payments required under the note.

On September 28, 2022, Plaintiff filed a Notice of Settlement.

On November 3, 2022, Plaintiff filed an Ex Parte Application to Enforce Settlement Agreement.

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:

            Plaintiff moves the court to enforce the settlement reached between the parties. The complaint was filed in June 2022, and the parties reached a settlement on September 13, 2022 for outstanding amounts due on a note for $62,500. In the agreement, Defendant was required to pay $5,000 per month for 11 months and $16,500 on the 12^th month for a total of $71,500. (Ex. Parte App., Ex. A.) Upon a breach, in addition to the outstanding principal, Plaintiff was entitled to recover interest commencing on October 19, 2019 to September 13, 2022. (Ex. Parte App., Ex. A.) The first payment was due on October 15, 2022. Payment was not completed, and Plaintiff’s counsel contacted Defendant on October 27, 2022, notifying him that he failed to pay as required under the agreement. (Ex. Parte pg. 3:27 – 4: 2; Ex. C & D.)

            Plaintiff argues that the court has the power to enforce the agreement. The agreement between the parties, which is attached to the application, includes a provision pursuant to CCP § 664.6, allowing the Court to retain jurisdiction to enforce the terms. (Ex. Parte App., Ex. A, pg. 3, ¶ 5.) Plaintiff requests a total amount of $71,500 based on the agreement (Ex. Parte App., Ex. A , ¶ 1(c)), plus interest of $19,311.36 (Dec. Geer ¶ 7) and $5,245.00 for attorneys’ fees for the current motion. (Id. at ¶ 8.) The email provided by Plaintiff indicates that Defendant intends to pay but has had some financial setbacks. (Ex. Parte App., Ex. D.)

            The Agreement provided indicates that under CCP § 664.6, the Court retains jurisdiction to enforce the terms of the agreement, upon either a noticed motion or ex parte application. Here, Plaintiff filed an ex parte application, as per the agreement. While the Court denied the ex parte application, the Court determined that this matter would proceed by way of noticed motion. Thus, the agreement can be enforced by the Court. 

            Plaintiff has provided unrebutted evidence that the agreement was breached. However, the Judgment provided is inaccurate because the amount of daily interest and the date it is accrued to are incorrect. First, interest is only to be calculated on the outstanding “amounts under the Note from October 2019 to present, minus any amounts already paid.” (Ex. Parte App., Ex. A, ¶1(e).)The declaration does not indicate what amount was paid. Second, present refers to the date the settlement agreement was entered.  In other words, interest is only accrued to the date the settlement agreement was reached. Thus, interest is only payable through September 13, 2022, not November 2, 2022. Lastly, the Court will decide what reasonable attorney fees should be awarded.

Conclusion:

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

            Motion to Enforce the Settlement is Tentatively GRANTED subject to admissible evidence on the amount.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             December 13, 2022                 __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court