Judge: Virginia Keeny, Case: 21VECV00195, Date: 2023-04-05 Tentative Ruling
Case Number: 21VECV00195 Hearing Date: April 5, 2023 Dept: W
MICHELLE GAY LIM-BARGO v. JOHN MONTGOMERY
motion to enforce settlement
Date of Hearing: April
5, 2023 Trial Date: None set.
Department: W Case
No.: 21VECV00195
Moving Party: Plaintiff Michelle Gay Lim-Bargo
Responding Party: Defendant John Montgomery
BACKGROUND
On February 17, 2021, Plaintiff Michelle
Gay Lim-Bargo filed a complaint against John Montgomery asserting causes of
action for (1) Breach of Contract; (2) Breach of Covenant of Good Faith and
Fair Dealing; (3) Fraud – Intentional Misrepresentation; (4) Negligent
Misrepresentation; (5) Conversion; and (6) Accounting.
Plaintiff and Defendant entered into a
written partnership agreement wherein Plaintiff was to pay $200,000 for the
acquisition of shares of stock in Defendant Montgomery’s business known as
Malibu Coastal Collective (“MCC”). The parties amended the agreement. Plaintiff
alleges, however, Defendant breached the agreement. Plaintiff claims MCC was
neither formed nor incorporated or registered as a business in California and
instead, used Plaintiff’s money in the amount of $100,000 for his own personal
use and benefit.
[Tentative] Ruling
Plaintiff Michelle Gay Lim-Bargo’s
Motion to Enforce Settlement is DENIED.
discussion
Plaintiff Michelle Gay Lim-Bargo requests this
court enforce the parties’ finalized settlement agreement by entering judgment
against John Montgomery in the amount of $100,000.00, with credits being given
to Defendant for all sums paid to Plaintiff.
Pursuant to Code of Civil Procedure section 664.6, “if 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.” (CCP §664.6.) The
2021 Amendment to Section 664.6 now expands the party-signature requirement to
provide that the writing may also be signed by an attorney who represents a
party, or, if a party is an insurer, an agent who is authorized in writing by
the insurer to sign on the insurer’s behalf. (CCP §664.6(b).)
“ ‘A request for the trial court to retain jurisdiction under
section 664.6 “must conform to the same three requirements which the
Legislature and the courts have deemed necessary for section 664.6 enforcement
of the settlement itself: the request must be made (1) during the pendency of
the case, not after the case has been dismissed in its entirety, (2) by the parties
themselves, and (3) either in a writing signed by the parties or orally before
the court.’ [Citation.] The ‘request must be
express, not implied from other language, and it must be clear and
unambiguous.’ [Citation.]” (Mesa, 33 Cal.App.5th at p.
917.) “ ‘[A] request that jurisdiction be retained until the
settlement has been fully performed must be made either in a writing signed by
the parties themselves, or orally before the court by the parties
themselves, not by their attorneys of record, their spouses, or other such
agents.’ [Citation.]” (Id. at p. 918.)
Plaintiff argues Defendant did not comply with the terms of the
settlement agreement. Plaintiff contends pursuant to the settlement agreement, “Montgomery
will pay $50,000 on or before April 1, 2022”. (Lim-Bargo
Decl. ¶3, Exh. A.) However, as April 1, 2022 approached, Defendant asked if he
could send $20,000.00 now and for an extension for the $30,000.00. (Lim-Bargo
Decl. ¶3.) Plaintiff did not agree, and Defendant sent two checks (one for
$20,000.00 and the other for $30,000.00) on April 1, 2022. (Lim-Bargo Decl. ¶¶3,
4, Exh. D.) When Plaintiff went to cash the checks, the bank informed Plaintiff
she could not cash the checks and could only deposit the $20,000 check because
there were insufficient funds for the $30,000.00. (Lim-Bargo Decl. ¶4.)
Defendant opposes the motion. Defendant
first argues there has been no breach of the settlement. The court agrees. The
Settlement Agreement provides:
MONTGOMERY
shall pay LIM-BARGO the total principal sum of Seventy Thousand
Dollars
($70,000.00) in the manner set forth herein as follows:
…
B.
Fifty Thousand Dollars ($50,000.00) on or before April 1, 2022; …
Although Plaintiff could not deposit
the checks until after April 1, 2022, Plaintiff has failed to present evidence
or authority that payment by check on April 1, 2022 is in breach of the
agreement. The checks were placed in the
mail on April 1, 2022. That complies
with the parties’ settlement agreement. The defendant then mailed the final
check to plaintiff before the final due date.
Defendant has fully complied with the settlement agreement and this
matter will be dismissed with prejudice.
Defendant also seeks attorney fees in
the amount of $4,940.00. “A trial court may order a party, the party’s
attorney, or both, to pay the reasonable expenses, including attorney’s fees,
incurred by another party as a result of actions or tactics, made in bad faith,
that are frivolous or solely intended to cause unnecessary delay.” (CCP
§128.5.)
Defendant contends Plaintiff’s conduct
appears frivolous including her delay in claiming breach. The alleged breach
occurred over 11 months ago and only recently is Plaintiff seeking to enforce
the terms of the settlement agreement.
The court denies Defendant’s request
for attorney fees. Although Plaintiff does not explain why she waited 11 months
to seek enforcement, the court finds it was not made in bad faith, frivolous or
solely intended to cause unnecessary delay.