Case Number: EC061086 Hearing Date: March 01, 2019 Dept: A

Aylozyan v Platinum Restaurant Equipment

MOTION TO ENFORCE SETTLEMENT

Calendar: 5

Case No: EC06108

Hearing Date: 3/1/19

Action Filed: 7/24/13

MP: Plaintiff Aram Aylozyan

RP: None

ALLEGATIONS:

Plaintiff Aram Aylozyan alleges that he purchased restaurant equipment from Defendant Dannel Abergel (“Abergel”) in 2007 in order to open a restaurant business. However, because Plaintiff’s business never kicked off, he was left with $60,000 of restaurant equipment. In 2010, Abergel informed Plaintiff that he had another buyer interested in the equipment and would help Plaintiff sell the equipment. Abergel then picked up and transported the equipment to Defendants Platinum Restaurants Equipment, Inc. (“Platinum”) and Simon Papazyan (“Papazyan”), where Plaintiff believed they would be stored until sold with Plaintiff’s consent. Plaintiff alleges that in 2011, Defendants sold Plaintiff’s restaurant equipment without his approval and failed to pay him.

The complaint, filed July 24, 2013, alleges causes of action for: (1) trespass to chattel; (2) conversion; and (3) fraud and deceit – intentional misrepresentation of a material fact.

RELIEF REQUESTED:

Plaintiff moves to enforce the settlement and enter judgment of $60,634.00 in favor of Plaintiff and against Defendant Dannel Abergel (“Abergel”) pursuant to CCP §664.6.

DISCUSSION:

Legal Standard

“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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (CCP §664.6.)

CCP §664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Under California law, Courts may continue jurisdiction over parties and their litigation, for the purpose of enforcing their settlement agreement, despite a suit’s having been dismissed, only when the parties request the retention of jurisdiction in a manner that satisfies the requirements of CCP section 664.6. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433.)

Terms of the Stipulation for Settlement

On November 14, 2014, Plaintiff and Defendants Platinum Restaurants Equipment, Inc. (“Platinum”), Simon Papazyan (“Papazyan”), and Abergel entered into a written settlement agreement regarding Plaintiff’s property conversion lawsuit against them, and they all personally signed the agreement. (Beloryan Decl., ¶7.)

The Settlement Agreement is attached as Exhibit A to the declaration of Haik Beloryan, counsel for Plaintiff. It states in pertinent part:

Abergel agrees to pay Plaintiff the total sum of $25,000.00 in full and final settlement of all the claims made by Plaintiff against Abergel. (Settlement Agreement, §III.A.) The payments were to be paid according to a schedule, with the first initial payment of $10,000 due by November 15, 2014; and thereafter 15 payments of $1,000 each on the 15th of the month from January 15, 2015 to March 15, 2016. (Id.)

Upon receipt of the $10,000 initial payment, Plaintiff will release Platinum and Papazyan of any and all claims and will filed a Request for Dismissal of the Entire Action with prejudice as to Platinum and Papazyan only. (Id., §III.C-D.) Only after all payments are made, Plaintiff shall filed a Request for Dismissal of the Entire Action with prejudice as to Abergel. (Id., §III.E.)

In the event any subsequent $1,000 payments are not made, Plaintiff shall send a default demand letter. (Id., §III.C.) “Failure to pay shall then be considered a material default under the terms of this Agreement and Plaintiff shall be entitled to entry of Judgment against Defendant Abergel only for the full amount of the debt alleged in the Action pursuant to CCP §664.6, less any and all payments received.” (Id.) In the event of a default, Plaintiff shall have the right to bring an ex parte or noticed application for entry of judgment pursuant to CCP §664.6 for $35,000 (agreed-upon amount due), plus 7% interest from May 2010 to the date of entry of judgment, plus reasonable attorney’s fees and costs. (Id., §III.G.)

Plaintiff states that he received the initial payment of $10,000, but states that he is not in receipt of the January 15, 2015 payment of $1,000 and that his counsel informed defense counsel of the default on January 16, 2015. (See Beloryan Decl., Ex. B.)

Request to Retain Jurisdiction

The request to retain jurisdiction 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 writing signed by the parties, or orally before the Court. (Wackeen, 97 Cal. App. 4th at 440.)

On November 19, 2014, Plaintiff filed the Notice of Settlement of Entire Case, stating that a conditional settlement agreement had been entered. That same day, Plaintiff voluntarily dismissed with prejudice Defendants Platinum and Papazyan from the action.

On November 24, 2014, the Court noted that the parties appeared to have settled the action and thus set an OSC re: Dismissal of the Entire Action for January 12, 2015. On January 12, 2015, the Court held the OSC, but continued the OSC re Dismissal subject to the Court retaining jurisdiction over CCP §664.6 to February 17, 2015.

On February 17, 2015, the Court held the OSC re Dismissal of the Entire Action. No appearances were made by Plaintiff or counsel. The Court also noted that no request for dismissal of the entire case or response to the Court’s OSC had been filed. Thus, the Court dismissed the entire cause without prejudice.

Here, prior to dismissal being entered in this case, the parties did not request that the Court retain jurisdiction of this matter. While the settlement agreement may state that the Court will retain jurisdiction of the matter to enforce any provisions of the settlement agreement pursuant to CCP §644.6, no actual request was made to the Court, nor did the Court state its assent in retaining jurisdiction.

As stated in Wackeen:

[I]n order for a court to assert such continuing jurisdiction, the parties’ request for retention of jurisdiction must satisfy the same formalities that courts and the Legislature have imposed generally on section 664.6 motions and the settlement agreements such motions seek to enforce. Like section 664.6 motions themselves, requests for retention of jurisdiction must be made prior to a dismissal of the suit. Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.

(Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [emphasis added]; see also Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 12(II)-F, §12:982.1 [“CCP § 664.6 provides for the retention of personal jurisdiction to enforce the settlement ‘if requested by the parties,’ but it is not clear how such a ‘request’ is to be made. Clearly, it is not enough simply to provide for such retention in the settlement agreement. Rather, the parties should stipulate to a judgment of dismissal that expressly provides that the court retains jurisdiction to enforce the settlement agreement. Otherwise, once the case is dismissed, a party in breach of the settlement agreement may argue successfully that the court lacks jurisdiction to enforce it.”].)
The parties did not present the Court with a written stipulation for the Court’s signing that it would retain jurisdiction, nor did they make an oral request that was noted in the Court’s minute orders prior to or at the time of dismissal. While the January 12, 2015 minute order reflects that the Court would set an OSC re dismissal subject to the Court’s retention of jurisdiction for February 17, 2015, no parties attended the February 17, 2015 OSC to orally request that the Court retain jurisdiction under CCP §664.6. Thus, as stated in Wackeen, Plaintiff cannot now seek to bring a CCP §664.6 motion. Rather, Plaintiff’s remedy is to file a separate lawsuit.

RULING:

Deny Plaintiff’s motion to enforce the settlement agreement.