Case Number: BC558412 Hearing Date: March 21, 2018 Dept: 53

3 CORNERS HOLDINGS, LLC, et al. vs. BABAK MELAMED , et al.; BC558412, February 21, 2018

[Tentative] Order RE: PLAINTIFF PERRY COHAN’S MOTION FOR ORDER FOR ENTRY OF JUDGMENT PURSUANT TO STIPULATION AND CODE OF CIVIL PROCEDURE § 664.6

Plaintiff PERRY COHAN’s Motion for Order for Entry of Judgment Pursuant to Stipulation and Code of Civil Procedure § 664.6 is DENIED.

BACKGROUND

Plaintiffs 3 Corners Holdings, LLC (“3 Corners Holdings”) and Perry Cohan (“Cohan”), as trustee of Cohan 2003 Family Trust (jointly, “Plaintiffs”) filed this action on September 22, 2014 against Defendants Babak Melamed (“Babak”) and Behzad Melamed (“Behzad”) (jointly, “Defendants”) alleging fraud and deceit, conversion, breach of fiduciary duty, and common count (money had and received). The allegations generally arose out of the terms of a Profit Sharing Agreement and the Cohan 2003 Family Trust’s entitlement to income generated by 3 Corners Holdings, which was then managed by Defendants.

The parties entered into a Global Settlement Agreement dated July 10, 2015, settling the allegations in this action as well as two separate actions. On August 10, 2015, Babak and Cohan signed a Stipulation and [Proposed] Order for Entry of Judgment in the sum of $2,400,000.00 plus attorneys’ fees and costs in enforcing the terms of a Promissory Note executed by Babak, less payments made by Babak and actually received by the Cohan 2003 Family Trust under the Promissory Note. The Promissory Note was entered between Babak and the Cohan 2003 Family Trust in the principal sum of $2,000,000.00. The Court docket shows that the proposed order on the Stipulation for Order for Entry of Judgment was never submitted. A manual review of the court file confirms that there was no order signed by the Court to retain jurisdiction under CCP §664.6.

Cohan contends that Babak has defaulted on the terms of the Promissory Note and subsequently failed to cure the default. Cohan now moves for an order for entry of judgment against Babak to enforce the terms of the settlement agreement. Babak opposes on the ground that the Court lacks jurisdiction to enter judgment.

DISCUSSION

In order for the Court to retain jurisdiction pursuant to Code of Civil Procedure section 664.6, the parties must have requested it. (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1010-11; Sayta v. Chu (2017) 17 Cal.App.5th 960, 966-67.)

Here, a request to retain jurisdiction was presented to the Court, only in the form of a Request for Dismissal. However, the Request for Dismissal was signed only by counsel for 3 Corners Holdings and counsel for Defendants.

As held in Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440, a

“request for retention of jurisdiction 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.”

The Stipulation and Order for Entry of Judgment, though signed by the parties, was not presented to the Court prior to dismissal of the case. As it appears from the record that the parties themselves did not request that the Court retain jurisdiction over this case, the Court finds that it has no jurisdiction pursuant to Code of Civil Procedure section 664.6 to grant the instant motion.

Section 664.6 was enacted allow a claimant to achieve a speedy, direct and economical way to enforce a settlement agreement so long as the above three requirements are met. Otherwise, the claimant would have to enforce the settlement agreement by bringing a breach of contract action.

CONCLUSION

For the foregoing reasons, Cohan’s Motion for Order for Entry of Judgment Pursuant to Stipulation and Code of Civil Procedure § 664.6 is DENIED.

Defendant Babak Melamed is ordered to provide notice of this ruling.

DATED: February 21, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court