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MOTION TO ENFORCE SETTLEMENT |
BACKGROUND
A. Allegations
Plaintiff Diva Limousine, Ltd. (“Diva”) commenced this action on January 30, 2018, alleging causes of action for: (1) intentional interference with economic relationship; and (2) preliminary and permanent injunction. Diva alleges that it provides transportation services to both individuals and businesses throughout the United States. It alleges that during peak travel seasons, it utilizes the services of its Affiliate Business Partners in its “Affiliate Program.” Diva alleges that Defendant Anusha Van Hartutyunyan aka Andy Hartutyunyan (“Hartutyunyan”), on behalf of Defendant Pearl Limousine Services, LLC (“Pearl”), submitted an application to become one of Diva’s Affiliate Business Partners. Diva alleges it retained Pearl’s services in 2015 to 2017, but in late-2017, a disagreement arose. Diva alleges that Hartutyunyan demanded payment for what he claimed were unpaid invoices and that he contacted Diva’s customers to discredit and disrupt Diva’s business.
Pearl filed the Second Amended Cross-Complaint (“SACC”) against Diva on September 13, 2018 for: (1) breach of contract; and (2) common counts. Pearl alleges that the parties entered into a written Affiliate Application and that, pursuant to the terms, Diva promised to pay all invoices submitted by Pearl. Pearl alleges that in January 2018, Diva failed to pay on the submitted invoices from August to December 2017. Thus, Pearl alleges total damages in an amount exceeding $85,000.00.
B. Relevant Background
On July 23, 2019, defense counsel represented to the Court that the case had settled.
On September 25, 2019, the Court noted that no appearances had been made by Plaintiff or Defendants. Taking into consideration the parties’ failure to appear and their representations that the case had settled, the Court ordered the complaint filed by Plaintiff Diva on January 30, 2018 to be dismissed without prejudice.
On December 6, 2019, Pearl filed a proposed Judgment by Court on Stipulation, pursuant to a CCP §664.6 request that the Court retain jurisdiction of the matter. That same day, a Stipulation for Civil Judgment was filed such that judgment would be entered in favor of Cross-Complainant Pearl against Diva in the amount of $85,000, and that Diva would take nothing against Defendants by way of the complaint. Neither of these documents are signed by the Court.
On January 14, 2020, Pearl filed a motion to vacate the dismissal for the limited purpose of filing a stipulation for entry of judgment and judgment. On February 28, 2020, the Court granted the motion to vacate the September 25, 2019 dismissal.
C. Motion on Calendar
On November 24, 2020, Pearl filed a motion to enforce settlement. [1]
On November 30, 2020, Diva filed a notice of non-opposition to the motion.
DISCUSSION
1. Terms of the Settlement Agreement
A copy of the Settlement Agreement is attached to the Declaration of Steven A. Wolvek as Exhibit A. The Settlement Agreement, entered between Diva, Pearl, and Hartutyunyan, states the following relevant terms:
- The parties release and forever discharge and covenant not to sue each other. The parties also provide a Civil Code, § 1542 waiver. (§§ 2.2, 2.3.)
- Plaintiff Diva shall take nothing against Defendants Pearl and Hartutyunyan by means of its complaint. Diva shall pay Pearl $85,000 by no later than 8/19/19. If Diva fails to make the payment, Pearl shall send a notice of default to Diva. If Diva fails to cure the default within 7 days of receiving notice, Pearl shall have judgment against Diva for $85,000 on its cross-complaint. (§ 2.3.)
- The parties stipulate that LASC, Burbank District, shall continue to have jurisdiction to enforce or declare rights under the agreement. (§ 3.15.)
- Should any party reasonably retain counsel for the purpose of declaring rights hereunder, enforcing or preventing the breach of any portion of the Settlement Agreement, including but not limited to instituting or defending any action nor proceeding to enforce any provision, for damages by reason of any alleged breach, for declaration of such parties’ right or obligations, or for any other judicial remedy, the prevailing party shall be entitled to be reimbursed by the losing party for all costs and expenses incurred, including reasonable fees for attorneys, paralegals, experts, and accountants. (§ 3.16.)
- The agreement may be submitted as a judgment in the amount of $85,000 in Pearl’s favor against Diva, less any payments made pursuant to the agreement, upon declaration of default by Pearl. (§ 3.17.)
2. Discussion of Merits
Pearl moves to enforce the terms of the Settlement Agreement pursuant to CCP § 664.6.
The memorandum of points and authorities does not state in what amount Pearl is seeking against Diva for the judgment amount. However, Exhibit B to the Declaration of Mr. Wolvek includes a letter dated August 21, 2019 from Mr. Wolvek (Pearl’s counsel) to Diva’s counsel. In the letter, Mr. Wolvek states that Diva was required to pay Pearl $85,000 on or before August 19, 2019, but that no settlement funds had been received to date.
As Diva appears to be in default of its Settlement Agreement obligations and has not cured the default upon notice, Pearl is entitled to enforce the agreement and seek judgment in the settlement amount. Based on the terms of the Settlement Agreement and Diva’s notice of non-opposition to the motion, the Court grants Pearl’s motion to enforce the Settlement Agreement.
CONCLUSION AND ORDER
The motion to enforce the Settlement Agreement is granted. The Court enters judgment against Diva in the amount of $85,000 in favor of Pearl on the cross-complaint.
Pearl shall provide notice of this order.
[1] The Court notes that the motion was not timely filed pursuant to CCP § 1005(b), which requires all moving papers to be filed at least 16 court days before the hearing. Nevertheless, Diva was timely served with the motion on October 28, 2020 by mail and has filed a notice of non-opposition to the motion. Thus, the Court will consider the merits of the motion as any arguments regarding untimely filing have been waived.