MOTION TO ENFORCE SETTLEMENT AND RELEASE AGREEMENT

Moving Parties: Plaintiffs Domodo International Corp. and Linking Resource Recycling, Inc.

Respondents: No timely opposition filed

POS: Moving OK

Plaintiffs commenced this action on 9/18/07, asserting causes of action for breach of contract, breach of oral contract, common count, fraud and negligent misrepresentation. The case was dismissed pursuant to settlement on 3/4/09. The court retained jurisdiction to enforce the settlement agreement pursuant to CCP § 664.6.

Plaintiffs Domodo International Corp. and Linking Resource Recycling, Inc. (collectively “Plaintiffs”) move pursuant to CCP § 664.6 for an order enforcing Settlement and Release Agreement (“Agreement”).

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.) The agreement must be sufficiently definite to enable courts to give it an exact meaning. If an essential element is reserved for future agreement, it is not sufficiently definite. (See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-812.)

On March 4, 2009, two days after the start of the trial, the parties in this case reached a settlement and entered into the Agreement. (Motion, Chen Decl. ¶ 3, Exh. 1.) In consideration of the release Defendants JCL Company, LLC and Jerry Li (collectively “Defendants”) agreed to pay Plaintiffs a total of $350,000. (Ibid.) The parties agreed that the court shall retain jurisdiction under CCP § 664.6 for purposes of enforcing the Agreement. (Id. ¶ 5, Exh, 2.) The Agreement provides that in the event of Defendants’ default and failure to cure within five business days after issuance of the Notice of Default, a judgment shall be entered against Defendants, jointly, for all causes of action except for fraud. (Id. ¶ 6.) Defendants breached the Agreement by failing to make payments after November 2009. (Id. ¶ 7.) Notice of Default was served on September 24, 2013. (Id. ¶ 8, Exh. 2.) Defendants, however, failed to cure the default within five business days after the issuance of the Notice of Default. (Ibid.) Plaintiffs request the court to enforce the terms of the Agreement and enter a judgment against Defendants, jointly, for an amount of $425,000. (Id. ¶ 9.)

The Agreement is sufficiently definite and signed by all the parties and their counsel. Plaintiffs also submit evidence that after the execution of the Agreement, Defendants made payments in the amount of $75,000 and failed to make any further payment after November 2009 (Motion, Chen Decl. ¶ 7); counsel for Plaintiff served a Notice of Default on September 24, 2013 in accordance with ¶ 8 of the Agreement, i.e., by (1) email to Defendant Jerry Li and Attorney Tom Tsay, (2) fax to Attorney Tom Tsay, and (3) overnight mail to Defendant Jerry Li (Id., Sun Decl. ¶ 4, Exh. 3); and that Defendants failed to cure the default (Id., Chen Decl. ¶ 8; Sun Decl. ¶ 7). Thus, the motion is grante.

The [Proposed] order submitted with the motion provides for a judgment against Defendants JCL Company, LLC, Jerry Li and Steven Jiang. However, Mr. Jiang was not a party to the Agreement. Thus, the judgment should be entered against Defendants JCL Company, LLC and Jerry Li only. Counsel for Plaintiffs is to give notice of the ruling and is to submit a proposed judgment rather than an order.