Case Number: BC499298    Hearing Date: October 20, 2014    Dept: 34

Moving Party: California Business Bank

Resp. Party: None

Plaintiff California Business Bank’s motion to enforce settlement as against defendants Lucy Gao Seh, Helena Cosman, Vanessa Lavendera and Frank Chien Liang Tu is GRANTED in the amount of $110,345.00. The Motion is denied as to defendant Sonia Chiou.

BACKGROUND:

Plaintiff commenced this action against defendant on 1/17/13 for the following causes of action: (1) Breach of Written Contract; (2) Breach of Written Contract; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Fraud and Deceit. The complaint pertains to Plaintiff’s efforts to sell California Business Bank (“CBB”), a distressed bank, to Defendant investors, who allegedly were not qualified to manage a bank, causing Plaintiff delay in finding a qualified suitor. On 3/15/13, Defendants filed an Answer.

On 7/07/14, Plaintiff filed a Notice of Settlement of Entire Case, indicating that a settlement agreement was signed, conditioning dismissal of this action on the satisfactory completion of specified terms. The Final Status Conference for 7/14/14 and the Trial Date of 7/23/14 were placed off-calendar, and an OSC re Dismissal was scheduled for 8/21/14. At the OSC, Plaintiff informed the Court that the settlement conditions had not been performed. On 9/19/14, Plaintiff filed the instant motion to enforce the settlement.

ANALYSIS:

Courts are empowered to enter judgments pursuant to oral settlements made before the court or written settlements signed by the parties. Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428; CCP §664.6; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶12:952. In deciding motions made under Section 664.6, judges “must determine whether the parties entered into a valid and binding settlement.” Kohn v. Jaymar-Ruby (1994) 23 Cal. App. 4th 1530, 1533. Courts have the power to decide disputed facts, and to interpret the agreement. Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566; Weil & Brown, supra at ¶12:977. Judges may receive evidence, determine disputed facts including the terms the parties previously agreed upon, and enter the terms of a settlement agreement as a judgment, but may not newly create material terms. Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360. Judges cannot address ambiguities in material terms by filling in the gaps, or adjudicate differences between the parties, as distinguished from just settling or interpreting the settlement provisions. Terry v. Conlan (2005) 131 Cal. App. 4th 1445, 1460. Determinations that parties entered into a binding settlement agreement are upheld if they are supported by substantial evidence. In re Marriage of Assemi (1994) 7 Cal. 4th 896, 911.

In this case, the parties negotiated the terms of the Settlement Agreement and Mutual General Release (“Agreement”). Ex. A to Declaration of Robert S. Addison, Jr. The Agreement was signed by four of the five Defendants. The Court finds that these four defendants entered into a valid and binding settlement.

Although there is an email from defense counsel stating that the Defendant Sonia Chiou had signed the agreement (Addison Decl., ¶8; emails, Ex. C), her signature does not appear on any settlement agreement.

The terms of the settlement are not disputed, Under the Agreement, Defendants would pay Plaintiff the sum of $100,000 on or before 7/31/14 in exchange for mutual releases. Addison Decl., ¶4. No portion of this sum has been paid to Plaintiff. Id. at ¶14. Therefore, the Agreement has been breached by four Defendants.

The Agreement contained a paragraph allowing any Party to bring a motion under CCP §664.6 to enforce the terms of the settlement. Agreement, ¶13. Plaintiff moves herein for an order that judgment be entered against Defendants under the terms of the Agreement. Therefore, the Court may enter judgment in the favor of Plaintiff and against Defendants in the principal amount of $100,000.

Paragraph 13 of the Agreement also contains a provision that the prevailing party in this action shall recover its attorney’s fees and costs. Counsel for Plaintiff claims that he spent at least 21 hours on work related to enforcement of the Settlement Agreement, at $495 per hour. Addison Decl., ¶16. The court finds that counsel’s hourly rate of $495 per hour is reasonable. However the Court finds that it should not have taken “a commercial litigator with approximately 20 years’ of experience litigating complex commercial actions in all courts, state, federal, and appellate, in the state of California” (Addison Declaration, ¶ 15) over 20 hours to prepare this pleading. The MPA is only four pages long, and consists mostly of a recitation of the procedural history of this case. The Court believes that no more than six hours were reasonably necessary for counsel to have spent preparing this motion. Therefore, the court will award attorney’s fees in the amount of $2,970.00 (6 hours x $495/hour.)

The court also awards prejudgment interest from August 1, 2014 to the present date, in the amount of $2,465.75.

Accordingly, the motion to enforce settlement is GRANTED in the amount of $105,435.75 against defendants Lucy Gao Seh, Helena Cosman, Vanessa Lavendera and Frank Chien Liang Tu, jointly and severally.