Case Number: BC487465    Hearing Date: July 21, 2014    Dept: 46

Posted 7-17-0214 at 3:15 p.m.
For hearing on 7-21-2014 at 8:30 a.m., Cal. # 10

Case Number: BC487465
KAREN ALWEIL INC VS JOSHUA KANER
Filing Date: 06/29/2012
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

07/21/2014
Motion to Enforce Terms of Settlement.

TENTATIVE RULING: Plaintiff’s motion is DENIED without prejudice. The declarations do not provide sufficient evidence for the court to determine that the notice of default was delivered via fax to Kaner or delivered in any manner whatsoever to Defendants’ counsel, as required by the parties’ Agreement. Since the “Notice of Default” was not served in the precise manner set forth in the Agreement, Kaner’s opportunity to cure has not yet expired.

On/about 11/23/12, Plaintiff and Defendant Kaner and Hipster Music Corp. (Ds are referred to as “HMC” and plaintiff is referred to as “KAI” in said Agreement) entered into a “Settlement and Release of All Claims” (hereinafter, “Agreement”); said Agreement states, in relevant part, as follows:

“1. Consideration. Upon execution of this agreement, HMC
shall pay to KAI the total sum of seventeen-thousand five
hundred dollars ($17,500.00), in 24 monthly installment
payments, per the Installment Payment Schedule below. HMC
shall make all monthly installment payments to KAI via ACH, or
similar electronic scheduled payment, to the following account:

Wells Fargo Bank
1534 N. Vermont Avenue
Los Angeles, CA 90027
323-663-1950
Account Holder: Karen Alweil
Routing # 121042882
Acct # 1585096942

In the event HMC is unable to make payment to KAI via ACH, or
similar electronic scheduled payment, HMC shall be allowed to
tender any and all monthly installment payments by use of cashier’s
check or money order. Such cashier’s checks or money orders shall
be tendered by personal delivery or overnight fed-ex to KAI (at the address below).

(a) Installment Payment Schedule:
(1) November 27, 2012 –$729.17
(2) December27, 2012- $729.17
(3) January 28, 2013 -$729.17
(4) February 27, 2013 – $729.17
(5) March27, 2013 – $729.17
(6) April 29, 2013 – $729.17
(7) May 27, 2013 – $729.17
(8) June 27, .2013 – $729.17
(9) July 29, 2013 – $729.17
(10) August 27, 2013 – $729.17
(11) September 27, 2013 – $729.17
(12) October 28, 2013 -$729.17
(13) November 27, 2013 -$729.17
(14) December 27, 2013 – $729.17
(15) January 27, 2014 – $729.17
(16) February 27, 2014 – $729.17
(17) March 27, 2014 – $729.17
(18) April 28, 2014 -$729.17
(19) May 27, 2014 – $729.17
(20) June 27, 2014 – $729.17
(21) July 28, 2014 -$729.17
(22) August27, 2014 -$729.17
(23) September 29, 2014 – $729.17
(24) October 27, 2014 – $729.09
Total Payment – $17,500,000*
[*obviously a typographical error]

(b) Default/Cure. In the event HMC fails to tender
payment pursuant to section 1(a), KAI (or its attorney
Arthur D. Hodge) shall deliver to HMC and 1-IM.C’s attorney
(Vaile Makoff), a Notice of Default. Such Notice of Default will
be delivered by both fax and overnight Federal Express mail.
From the date of delivery of the last Notice of Default, MHC
shall have 5 business days (excluding Court Holidays) to
cure any default before seeking court intervention to enforce
the Release.

2. Notice of Settlement and Dismissal of Action. Upon execution
of this document by both sides, KAI shall file a Notice of Settlement
in the form attached hereto, and the court shall retain, jurisdiction to enforce the settlement until November 1, 2014 at which time the final settlement installment payment pursuant to paragraph 1(a) shall have been made…

8. Notices. Any and all Notices under this agreement shall be delivered
as follows:

KAI:
Arthur D. Hodge, Esq.
701 Palomar Airport Road, Suite 301
Carlsbad, CA 92011
Telephone: (760) 8144398
Email: adhlawgmai1.com

HMC:
Joshua Kaner
100 Colonial Affair
Austin, TX 78737
Telephone: (310) 869-0998
Email: joshhipsterrnusic.com

HMC’s Attorney:
Ilan Wisnia
Valle MakoffLLP
11911 San Vicente Blvd., Suite 324
Los Angeles, CA 90049
Telephone: (310) 476-0300
Fax: (310) 476-0333…

9. No Oral Modification. It is expressly understood and agreed that this Release may not be altered, amended, modified or otherwise changed in any respect whatsoever, except by a writing duly executed by the Parties to this Release or their successors in interest or assigns…” (Motion, Exhibit “1”).

Arthur Hodges (hereinafter, “Hodges”), attests, in relevant part, as follows:

“4. …[A]s of the date of this declaration, payments 18 and 19 should already have been made, and payment 20 is coming due on June
27, 2014.
5. A Notice of Default letter was prepared on June 19, 2014 and mailed
to defendant JOSHUA KANER via overnight mail USPS express mail
on June 20, 2014, and sent to him by email on June 20, 2014. The
Notice of Default letter enclosed a copy of the terms of the settlement
and also the Wells Fargo Bank statement reflecting that only 17
payments have been made. A true and correct copy of the October 29, 2013 Notice of Default letter is attached hereto as Exhibit ‘2.’” (Hodges Declaration, ¶¶ 4 & 5).

Exhibit “2,” however, does not reflect that it was delivered via fax to Kaner or delivered in any manner whatsoever to Ds’ counsel, as required by the parties’ Agreement. Since the “Notice of Default” was not served in the precise manner set forth in the Agreement, D Kaner’s opportunity to cure has not yet expired.

As the notice of default provisions are not shown to have been fully complied with, the motion must be denied. As the defect is curable the denial is without prejudice.

IT IS SO ORDERED:

Frederick C. Shaller, Judge