Case Number: BC639707 Hearing Date: May 29, 2018 Dept: 74

SHAZEB KABIR,

Plaintiff,

vs.

SME CENTER INC, ET AL.,

Defendants

Case No.: BC639707

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT

TENTATIVE RULING: Plaintiff’s motion to enforce settlement is GRANTED. Reasonable attorney’s fees, costs, and expenses are awarded to Plaintiff in the total amount of $1,888, payable within 10 days.

DISCUSSION

“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.” CCP § 664.6. The trial court may enter judgment pursuant to a stipulated agreement to settle in one of two ways: (1) in a writing signed by the parties; or (2) by oral agreement made “before the court.” Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711 12. If, however, there are disputed facts on a motion to enforce a settlement agreement pursuant to section 664.6, the trial court has the authority to determine whether the parties have entered into a valid and binding settlement of all or part of the case. In re Marriage of Hasso (1991) 229 Cal.App.3d 1174; Corkland v. Boscoe (1984) 156 Cal.App.3d 989.

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37. Accordingly, “parties” under section 664.6 means the litigants themselves, not their attorneys. Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”). Additionally, the settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.

The ultimate issue whether the parties formed an enforceable contract, since a settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts. Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815. The essential element of any contract is “consent,” which must be mutual, and whose existence is determined by objective rather than subjective criteria, i.e., what the outward manifestations of consent would lead a reasonable person to believe. Id. at 811.

a. Enforceable Agreement

Plaintiff argues that Defendants have not paid the required $15,000 by the due date as specified in the settlement agreement. Accordingly, Plaintiff requests the Court enter judgment pursuant to the terms of the settlement agreement and enforce the agreement.

Plaintiff attaches the fully executed settlement agreement for the claims in the instant case. Motion, Exh. 1 (“Settlement Agreement and Mutual Release”). The agreement is signed by both parties and dated April 9, 2018. The agreement states in pertinent part:

“In consideration of the foregoing recitals…Defendants agree to pay in settlement of these matters the gross sum of Fifteen Thousand Dollars…as a compromise payment…and in settlement of all claims covered by this Agreement to be paid in full on or before April 30, 2018.” Settlement Agreement and Mutual Release, ¶ 1.

The terms of the agreement evidence the parties’ desire to enter into an enforceable contract. Further, the agreement expressly states that the agreement is enforeceable under section 664.4 and the Court retains jurisdiction to enforce the agreement. Settlement Agreement and Mutual Release, ¶ 13. Additionally, Defendants make no opposition to the motion.

Accordingly, the motion to enforce settlement is GRANTED.

b. Attorney’s fees, Costs, Expenses

The agreement explicitly states:

“…If any action is commenced by any Party to this Agreement to enforce the provisions of this Agreement, the prevailing party shall be entitled to an award of its attorney’s fees, costs and exenses…” Settlement Agreement and Mutual Release, ¶ 25.

Plaintiff seeks $7,525.00 in attorney’s fees and $138.00 in costs and expenses. The fee request is for 21.5 hours at an hourly rate of $350, consisting of 4.5 hours preparing this motion, 1 hour for paralegal review, two hours preparing reply, five hours traveling to and appearing at the hearing on this motion, and 7 hours on the ex parte application, travel, and appearance. Weeks Decl. ¶¶ 9-11. Additionally, Plaintiff requests $120 for the motion filing fee and $18 for parking. Id. at ¶ ¶ 12-13.

The Court has reviewed the record and finds Defendants’ request for 21.5 hours of work spent on the single motion, ex parte application, travel, and appearance time is unreasonable. The Court finds 1 hour for preparing this motion, 2 hours for travel and appearance time on this motion, 30 minutes to prepare the ex parte application, and 1.5 hours for travel and appearance time on the ex parte application is reasonable.

Accordingly, reasonable attorney’s fees are 5 hours at an hourly rate of $350 for a total of $1,750. Therefore, attorney’s fees, costs, and expenses are GRANTED in the total amount of $1,888.