Judge: Wesley L. Hsu, Case: 21PSCV00457, Date: 2023-04-18 Tentative Ruling

Case Number: 21PSCV00457    Hearing Date: April 18, 2023    Dept: L

1. Plaintiff ROIC Diamond Hills Plaza, LLC’s unopposed Motion to Enforce Settlement is GRANTED.

2. The hearing on Counsel for Defendant/Cross-Defendant Weijia Zhu’s (i.e., The Ma Law

Group) Motion to be Relieved as Counsel is CONTINUED to ____________________.

Background   

Plaintiff ROIC Diamond Hills Plaza, LLC (“ROIC”) alleges as follows: Plaintiff is the owner of the property located at 2767 Diamond Bar Boulevard, Diamond Bar, California 91765 (the “Premises”). On or about June 30, 2018, Plaintiff and P.L. Bakery Café, LLC (“P.L. Bakery”) entered into a written Retail Shop Lease (“Lease”), wherein P.L. leased the Premises from Plaintiff for a term of 52 months. Lian Liu (“Liu”) and Laiping Bai (“Bai”) executed a Guaranty of Lease. On or about August 27, 2019, P.L. assigned the Lease to Qinjm, Inc. (“Qinjm”) pursuant to a written “First Amendment to Lease and Assignment of Lease.” Qi Yang (“Yang”), Wenjia Zhu (“W. Zhu”), Min Zhu (“M. Zu”) and Hui Hua (“Hua”) executed a Guaranty of Lease. P.L. and Qinjm failed to pay rent and other charges due and owing and were locked out of the Premises by the sheriff on April 22, 2021.

On June 2, 2021, Plaintiffs filed a complaint, asserting causes of action against Defendants P.L. Bakery, Qinjm, Liu, Bai, Yang, W. Zhu, M. Zhu, Hua and Does 1-20 for:

1.      Breach of Lease

2.      Breach of Written Guaranty of Lease

On August 24, 2021, M. Zhu’s and Hua’s defaults were entered on the complaint.

On January 18, 2022, Liu, Bai and P.L. Bakery filed a First Amended Cross-Complaint (“FACC”), asserting causes of action against Kevin Lin dba Realty Pro 100 (“Lin”), Qinjm, Yang, Hua, W. Zhu, M. Zhu and Does 1-20 for:

1.      Indemnification

2.      Declaratory Relief

3.      Fraud

4.      Breach of Oral Contract

5.      Relief Under Civil Code § 3543

On September 15, 2022, a “Stipulation for Conditional Dismissal and Order Thereon” was filed.

On October 4, 2022, Liu, et al. dismissed their FACC filed January 18, 2022, with prejudice.

1. Motion to Enforce Settlement

Legal Standard

“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.” (Code Civ. Proc., § 664.6, subd. (a).)

Discussion

Plaintiff moves the court to set aside the dismissal, to reopen this mater and for an order enforcing the settlement and entering judgment in the amount of $20,833.33 in accordance with the terms of the Settlement Agreement and Mutual Releases (“Agreement”) against Qinjm, Yang, W. Zhu, M. Zhu and Hua.

On or about September 6, 2022, Plaintiff, on the one hand, and P.L. Bakery, Qinjm, Liu, Bai, Yang, W. Zhu, M. Zhu, Hua and Lin, on the other hand, executed Agreement and “Stipulation for Conditional Dismissal” (“Stipulation”). (Stelzer Decl., ¶ 3, Exh. A(1).) The Stipulation attached the Agreement as Exhibit 1 and provided, in relevant part, as follows:

“1. Immediately upon filing this Stipulation, the Civil Action shall be dismissed

without prejudice.

2.      The Parties hereby agree and acknowledge Defendants owe Plaintiff damages

through the date of this Stipulation in the amount of forty thousand dollars

($40,000.00) (‘Damages’).

3.      Defendants shall make payment of Damages to Plaintiff as follows:

a. Within ten (10) days of all Parties' execution of the Settlement Agreement,

Cross-Defendant KEVIN LIN dba REALTY PRO 100 shall pay the sum of Ten Thousand and no/100 Dollars ($10,000.00) (the ‘Settlement Sum’) to Plaintiff

ROIC and its attorneys of record.

b. Within ten (10) days of all Parties' execution of the Settlement Agreement, Defendants/Cross-Complainants P.L. BAKERY CAFE, LLC., LIAN LIU, and

LAIPING BAI shall pay the sum of Five Thousand and no/100 Dollars ($5,000.00)

to Plaintiff ROIC.

c. Defendants/Cross-Defendants QINJM, INC., QI YANG, WENJIA ZHU, MIN

ZHU, and HUI HUA shall pay the sum of Twenty-Five Thousand and no/100

Dollars ($25,000.00) to ROIC. This payment will be made in equal installments

over a six (6) month period, with the first payment ($4,166.67) being due on

September 1, 2022, and all succeeding payments due on the first day of each

month thereafter.

4. In the event QINJM, INC., QI YANG, WENJIA ZHU, MIN ZHU, and HUI

HUA, or either of them, fail to perform each and every obligation required

herein, including but not limited to making the payments as set forth above in

Paragraph 3, and such non-performance continues for three (3) business days

following email notification to Wenjia Zhu at jessie890817@gmail.com with a

courtesy copy to Rick Ma Esq. at rick@lawofma.com, then upon Plaintiff’s

Declaration regarding non-compliance, judgment shall enter in favor of ROIC

and against defendants QINJM, INC., QI YANG, WENJIA ZHU, MIN ZHU,

and HUI HUA in the total amount of $25,000.00, less any amounts paid as of the

entry of judgment. . .” (See also, Exh. A(1), ¶ 3.)

The Stipulation and Agreement contained a Code of Civil Procedure § 664.6 clause. (Stelzer Decl., ¶ 3, Exhs. A, ¶ 10 and A(1), ¶ 13) The Stipulation and Order thereon were filed September 15, 2022.

Since the settlement was reached, Qinjm, Yang, W. Zhu, M. Zhu and Hua have paid Plaintiff only one payment of $4,166.67. (Pease Decl., ¶ 6). Plaintiff’s counsel Cynthia D. Stelzer (“Stelzer”) emailed counsel for Qinjm, Yang, W. Zhu, M. Zhu and Hua (i.e., Rick Ma (“Ma”)), as well as jessie890817@gmail.com, on December 16, 2022 and December 21, 2022, and sent follow-up emails to Ma on December 23, 2022, January 11, 2023, January 18, 2023 and January 23, 2023 regarding non-payment. (Stelzer Decl., ¶ 2, Exh. B.) More specifically, on December 21, 2022, Ma requested that he be permitted to follow up with his clients regarding the default, to which Stelzer agreed. (Id.). On December 23, 2022, Ma advised that his clients represented to him that they would be able to “make at least two months of payment by January 10, 2023,” however, no such payments were made. (Id.) Subsequent communications between counsel reflect that Ma has not been able to make contact with his clients. (Id.)

Plaintiff’s motion, then, is granted.

2. Motion to be Relieved as Counsel

The Ma Law Group (“Firm”) seeks to be relieved as counsel of record for W. Zhu (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of

justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Attorney Rick Ma (“Ma”) states in his declaration that the attorney-client relationship has broken down, that W. Zhu has not paid attorney’s fees, and that W. Zhu has failed to return Ma’s calls or to contact Ma regarding his breach of the settlement agreement.

Ma, however, fails to provide the court with any information in Paragraph 3(a) of his Judicial

Council form MC-052 declaration as to service of the motion. The motion was not accompanied

by any proof of service; further, no proof of service has since been filed, as of April 11, 2023,

2:20 p.m.

Additionally, Ma has failed to provide the court with a proposed Order Granting Attorney's

Motion to Be Relieved as Counsel—Civil form (MC-053)).

Accordingly, the court will continue the hearing of the motion, to _____________________.

Ma is instructed to (1) file to file a proof of service reflecting Code of Civil Procedure § 1005-compliant notice of the instant hearing to the client and all other parties who have appeared in the case, (2) file and serve a notice of continuance forthwith and to (3) lodge a Judicial Council Form MC-053 proposed order with the court in the interim.