Judge: William A. Crowfoot, Case: 21GDCV00026, Date: 2023-02-16 Tentative Ruling

Case Number: 21GDCV00026    Hearing Date: February 16, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On January 7, 2021, plaintiffs Hologlitalic LLC and Matthew Geiger (collectively, “Plaintiffs”) filed this action against defendants Jessica Rose Moorehead and Nu Matics Athletics LLC (collectively, “Defendants”) arising from a dispute regarding the ownership and control of trademarks/service marks, social media, and financial and credit accounts. 

On February 25, 2021, Defendant Jessica Rose Moorehead (“Moorehead”) filed a cross-complaint against the Plaintiffs.

On June 8, 2022, Plaintiffs filed a Stipulation for Entry of Dismissal under Code of Civil Procedure § 664.6, which was entered by the Court on the same day. On June 9, 2022, a Notice of Entry of Dismissal was entered.

Plaintiffs now seek an order setting aside the dismissal of this action and enforcing the settlement agreement and stipulation for entry of judgment upon default.  The motion is unopposed. 

II.          LEGAL STANDARD

Not less than 10 days prior to the commencement of trial, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. (Civ. Proc. Code § 998.) The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. (Ibid.)  Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.  (Ibid.)  If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. (Ibid.)

III.        DISCUSSION

Plaintiffs move for the Court to enforce their settlement with Defendants pursuant to Code of Civil Procedure § 664.6. (See Notice of Motion.)

“After a party signs the offer to compromise, the signed agreement may be presented to the superior court clerk who may enter judgment.”  (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667.)  “Although the procedure established by section 998 is clearly intended to encourage settlements, the statutory language is silent on a number of issues relevant to the application of the provision, including what conduct constitutes an acceptance, whether a statutory offer may be revoked by the offeror prior to the expiration of the statutorily designated period, and the effect of counteroffers on the viability of outstanding statutory settlement offers.” (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270-271; see also Pazderka, supra, 62 Cal.App.4th at p. 667 [“The statute does not explain the procedure to be used to challenge the clerk’s entry of judgment.  Additionally, it does not reveal whether the Legislature intended to permit a party to appeal from such an order”].)

Plaintiff asserts that, under the terms of the settlement agreement, the parties agreed that Moorehead would transfer her membership interest in Hologlitalic to Geiger and pay Geiger the sum of $45,000.00 in installment payments. In exchange, Moorehead would retain ownership over the cheer/gymnastics/tumbling school and would be assigned all right, title, interest, and control of the trademarks/service marks held by the Plaintiffs. (Schindler Decl. ¶¶ 8, 10; Exh. B, §§ 4.2, 4.4.) Pursuant to the settlement agreement, Moorehead was required to deliver a check in the amount of $5,000 to Geiger by August 1, 2022 (Schindler Decl. ¶ 10; Exh. B, § 4.4.1; Exh. 1 to Ex. B, § 2.8.4 at pg. 19.) Thereafter, Moorehead was required to make monthly payments of $250 over a period of 160 months, wherein payments were due at the first of every month, starting on September 1, 2022, and payments were considered late if they were received by Geiger on or after the fifth calendar day of the month. (Schindler Decl. ¶ 10; Exh. B, §§ 4.4.2-4.4.3; Exh. 1 to Exh. B, § 2.8.5 – 2.8.6.) A ten percent interest on the remaining balance would be added in any calendar year where there has been a late payment. (Schindler Decl. ¶ 10; Exh. B, § 4.4.4; Exh. 1 to Exh. B § 2.8.7.)

Plaintiffs assert that Moorehead is in default under the settlement agreement because she failed to make the initial $5,000 payment on August 1, 2022 and delivered the first two monthly payments late on October 24, 2022. (Geiger Decl. ¶¶ 5, 7-9; Exh. E.) Consequently, Plaintiffs returned the uncashed checks to Moorehead on December 28, 2022. (Schindler Decl. ¶ 19; Exh. C.)

Because of Moorehead’s default, Plaintiffs assert that they are entitled to late-payment interest in the amount of $4,500 for the 2022 calendar year. (Schindler Decl. ¶ 23.) Additionally, they content that an award of reasonable attorney fees is warranted because it is permitted under the settlement agreement. (Schindler Decl. ¶ 13; Exh. B, § 4.5.3; Exh. 1 to Exh. B, § 2.8.12.) To this extent, Plaintiffs request an attorney fee award of $1,950 consisting of 6.5 hours at an hourly rate of $300 in preparing, filing, and entering the Stipulation for Entry Judgment Upon Default, and Judgment, and in efforts to collect on the Judgment until paid in full. (Schindler Decl. ¶ 24.) Additionally, Plaintiffs request prejudgment interest in the amount of $12.33 per day starting from January 1, 2023 until the entry of judgment. (Motion at pg. 11.)

Based on the evidence presented, the Court finds that Defendants have breached the terms of the settlement agreement and are in default. Considering Defendants have failed to file an opposition, they have failed to articulate why they were not able to comply with the settlement terms as agreed upon. Moorhead’s dilatory conduct in making payments in compliance with the settlement agreement is clearly an attempt to penalize the Plaintiffs and to delay completion of the settlement. Moreover, the Court finds that Plaintiffs are entitled to the late fee payment and the requested attorney fees pursuant to the settlement agreement as well as prejudgment interest.

Accordingly, pursuant to California Code of Civil Procedure § 664.6, the Court sets aside the dismissal entered on June 8, 2022 and enters judgment in Plaintiffs’ favor in the amount of $52,017.18 pursuant to the parties' settlement agreement and Civil Code § 3289.

IV.         CONCLUSION

Plaintiffs’ motion to enforce settlement is GRANTED. The Court sets aside the dismissal entered on June 8, 2022 and enters judgment in Plaintiffs’ favor in the amount of $52,017.18 pursuant to the parties' settlement agreement and Civil Code § 3289.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.