Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
ROGERS, SHEFFIELD & CAMPBELL, LLP Darrel E. Parker, Executive Officer
1 John H. Haan, Jr. (SBN 243223) 2/26/2020 2:25 PM
Scott G. Soulages (SBN 302867) By: Ninette Height, Deputy
2 427 East Carrillo Street
Santa Barbara, California 93101
3 T: (805) 963-9721
F: (805) 966-3715
4
Attorneys for Plaintiff/Cross-Defendant
5 Central Coast Wine Warehouse, Limited Partnership
6
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SANTA BARBARA – COOK DIVISION
11
12 CENTRAL COAST WINE WAREHOUSE, ) Case No. 17CV03960
LIMITED PARTNERSHIP, a California limited ) Assigned to Hon. Timothy J. Staffel
13 partnership doing business as CENTRAL )
COAST WINE SERVICES, ) PLAINTIFF/CROSS-DEFENDANT
14 CENTRAL COAST WINE WAREHOUSE,
)
LIMITED PARTNERSHIP, A CALIFORNIA
15 Plaintiff, ) LIMITED PARTNERSHIP DOING
) BUSINESS AS CENTRAL COAST WINE
16 v. ) SERVICES’ NOTICE OF MOTION AND
) MOTION TO ENFORCE SETTLEMENT
17 AGREEMENT; MEMORANDUM
F.P.D., INC., a California corporation doing ) OF POINTS AND AUTHORITIES
18 business as BALCOM FAMILY CELLARS; )
VINS ETRANGE, a California corporation ) DATE: April 1, 2020
19 TIME 8:30 a.m.
doing business as STRANGE WINES; and )
DOES 1-20, ) DEPT.: SM-3
20
)
21 Defendants. )
)
22
)
23 And related Cross-Complaint. )
)
24
25 TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD:
26 YOU ARE HEREBY NOTIFIED THAT on April 1, 2020 at 8:30 a.m., or as soon as the
27 matter may be heard in Department SM-1 of the above-entitled court located at 312-C East
28 Cook Street, Building E, Santa Maria, California, Plaintiff and Cross-Defendant, CENTRAL
1
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
COAST WINE WAREHOUSE, LIMITED PARTNERSHIP, a California limited partnership doing
business as CENTRAL COAST WINE SERVICES (“CCWS”), will move the Court for an order
enforcing the Settlement Agreement reached in the herein action between CCWS and
Defendant VINS ETRANGE, a California corporation doing business as STRANGE WINES
("Strange Wines") (the “Settlement Agreement”)
\DWQGNU‘luh-w—A
as a judgment ordering Strange Wines to
provide a declaration authenticating electronically stored information it produced, and to
indemnify CCWS against certain claims made by Defendant/Cross-Complainant F.P.D., INC., 3
California corporation doing business as BALCOM FAMILY CELLARS ("Balcom").
This Motion is based on the grounds that per the Settlement Agreement, the Court has
retained jurisdiction under Code of Civil Procedure section 664.6 to enforce the parties’
settlement. This Motion will be based upon this Notice, the attached Memorandum of Points
and Authorities, and the Declaration oflohn H. Haan, ]r. filed concurrently herewith, and the
records and files in this action.
Dated:
NNNNNNNNNHHHHHHHHD—‘H
February 25,2020 WW
ROGERS, SHEFFIELD
john H. ilaan, ]r.
Scott G. Soulages
& CAMPBELL, LLP
Attorneys for Plaintfi/Cross-Defendant CENTRAL
COAST WINE WAREHOUSE, LIMITED PARTNERSHIP
ODVO\U1>PWNHO©OD\IO\U1~PUJNHO
2
PLAINTIFF/CROSS-DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 CCWS files this Motion to enforce the Settlement Agreement because Strange Wines
4 refuses, after demand, to defend and indemnify CCWS as set forth therein. Despite Strange
5 Wines’ representations and warranties in the Settlement Agreement that it had sole title to
6 certain wine referred to as the Jules Harrison Wine, Balcom continues to assert claims thereto
7 in its cross-complaint against CCWS. Balcom’s assertion of claims triggers Strange Wines’ duty
8 to defend and indemnify CCWS, yet it has failed to do so, even after demand. As part of the
9 Settlement Agreement, the parties expressly agreed that it would be subject to the Court’s
10 continued jurisdiction under CCP § 664.6. CCWS is left with no choice but to call upon the
11 Court’s authority to enforce the Settlement Agreement against Strange Wines, and order it to:
12 (1) defend and indemnify CCWS against Balcom’s claims to the Jules Harrison Wine; and (2)
13 execute and deliver to CCWS a declaration authenticating the electronically stored information
14 produced by Strange Wines on May 17, 2019.
15 II. STATEMENT OF FACTS
16 On September 5, 2017, CCWS filed its Complaint against Balcom and Strange Wines
17 alleging claims for (1) Breach of contract and (2) Declaratory Relief (the “Action”) (Declaration
18 of John H. Haan, Jr [“Haan Decl.”], Ex. A). As is set forth in the Complaint, the Action relates to
19 the enforcement of CCWS’s warehouseman’s lien on wine that was stored by Balcom at CCWS’s
20 premises pursuant to a storage agreement dated October 17, 2006 between CCWS and Balcom
21 (“Storage Agreement”). The wine stored at CCWS’s premises pursuant to the Storage
22 Agreement included “Jules Harrison” wine that was owned by Strange Wines (the “Jules
23 Harrison Wine”). Strange Wines is not a party to the Storage Agreement.
24 The gravamen of the Action is Balcom’s breach of the Storage Agreement by failing to
25 pay the required monthly charges and failing to remove its wine inventory, including the Jules
26 Harrison Wine, after the agreement was terminated (See Haan Decl., Ex. A). CCWS exercised its
27 warehouseman’s lien and the wine inventory, including the Jules Harrison Wine, was sold by
28 CCWS to Turn Key Wine Brands, LLC, a California limited liability company (“Turn Key”), by
3
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
1 private sale on October 31, 2018 pursuant to California Commercial Code § 7210 and the
2 Storage Agreement (Ibid.).
3 On January 9, 2019, CCWS and Strange Wines reached a settlement of the Action, which
4 was memorialized in the Settlement Agreement. (Haan Decl., ¶ 3, Ex. B). The Settlement
5 Agreement provides at section 8.2 that it can be enforced as a judgment per CCP § 664.6 (Haan
6 Decl., Ex. B, p. 5-6). As consideration for the settlement, Strange Wines agreed to a search of its
7 electronic devices for electronically stored information (“ESI”), and agreed to execute a
8 declaration authenticating the ESI produced from the search upon written request (Id. at p. 2).
9 As part of the agreement, Strange Wines expressly represented and warranted that
10 Balcom had no right, interest, claim or title to the Jules Harrison Wine. (See Section 3.2 of the
11 Settlement Agreement, Haan Decl., Ex. B, p. 4). In addition, Strange Wines further warranted
12 and represented that it was the sole owner of the Jules Harrison Wine, and agreed to indemnify
13 CCWS from any claims arising from the Jules Harrison Wine. (See Settlement Agreement § 3.2
14 & Ex. 1, Haan Decl., Ex. B, pgs. 4 & 9).
15 In this action, Balcom has and continues to assert that it owns the Jules Harrison Wine.
16 In its verified response to special interrogatory no. 1 in CCWS’s Special Interrogatories, Set
17 One, which sought identification of all property owned by Balcom that was stored with CCWS,
18 Balcom provided an inventory list which included the Jules Harrison Wine. (See Exhibit A to
19 Balcom’s Responses to Special Interrogatories, Set One, attached to the Haan Decl. as Exhibit
20 D). Balcom’s most recent case management statement, served after the foregoing discovery
21 responses, indicates it is still seeking the same amount of damages set forth in the Complaint
22 (in excess of $150,000). (See Haan Decl., Ex. B, p. 6 and Ex. E, p. 1). Accordingly, Balcom
23 continues to assert ownership of the Jules Harrison Wine and continues to prosecute its claims
24 thereto against CCWS.
25 On December 2, 2019, John Haan, counsel for CCWS emailed counsel for Strange Wines,
26 Lee Sacks. (Haan Decl., ¶ 5). The email requested Strange Wines provide a declaration
27 authenticating electronically stored information it produced as required by section 1.2 of the
28 Settlement Agreement. (Haan Decl., ¶ 5 and Ex. F, p. 3). Further, the email informed Mr. Sacks
4
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
1 of Balcom’s claims to the Jules Harrison Wine, and requested confirmation that Strange Wines
2 would defend and indemnify CCWS against Balcom’s claims. (Ibid.). After Mr. Haan sent a
3 follow up email on December 11, 2019, Mr. Sacks replied stating he had not spoken with his
4 client. (Haan Decl., Ex. F, p. 1). Mr. Sacks has provided no further response and CCWS is left to
5 seek enforcement of the Settlement Agreement by way of this Motion. (Haan Decl. at ¶ 5).
6 III. DISCUSSION
7 A. The Settlement Agreement Must Be Enforced as a Judgment Ordering
8 Strange Wines to Indemnify CCWS and Provide a Declaration Authenticating ESI.
9 Under section 664.6 of the Code of Civil Procedure, a trial court may enforce a
10 settlement agreement made during pending litigation if the parties entered into the agreement
11 either orally before the court or in writing outside the presence of the court. (Elyaoudayan v.
12 Hoffman (2003) 104 Cal. App. 4th 1421, 1424). A party moving for entry of judgment pursuant
13 to CCP § 664.6 need not establish a breach of the settlement agreement. (Hines v. Luke (2008)
14 167 Cal.App.4th 1174, 1184–85). Accordingly, the court is authorized to enter judgment
15 pursuant to the settlement regardless of whether the settlement’s obligations were performed
16 or excused. (Ibid.). Settlement agreements are contracts and are governed by the same legal
17 principles applicable to contracts in general. (Nicholson v. Barab (1991) 233 Cal.App.3d 1671,
18 1681).
19 1. Under the Settlement Agreement, Strange Wines is Obligated to Indemnify
20 CCWS to the Extent Balcom Claims Ownership of the Jules Harrison Wine.
21 Here, the parties clearly and expressly agreed that the Settlement Agreement would be
22 enforceable as a judgment under CCP § 664.6. Section 8.3 specifically provides for the court to
23 retain jurisdiction and enforce the terms of the Settlement Agreement, including future and
24 executory terms (Haan Decl., Ex. B, p. 6). Thus, there is no question about the enforceability of
25 the Settlement Agreement with regard to Strange Wines’ indemnity obligations.
26 Strange Wines’ duty to defend and indemnify CCWS per the Settlement Agreement has
27 been triggered. Balcom has and continues to assert claims to the Jules Harrison Wine,
28 including in its most recent case management statement. Balcom has claimed title to the Jules
5
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
1 Harrison Wine in discovery responses verified under penalty of perjury, and has provided no
2 withdrawal or qualification of the claim. CCWS has notified Strange Wines of Balcom’s claims,
3 and has demanded Strange Wines fulfill its indemnity obligation under the Settlement
4 Agreement. Strange Wines has refused to do so, and therefore is in breach of the Settlement
5 Agreement. Strange Wines must be ordered to indemnify CCWS against Balcom’s claims to the
6 Jules Harrison Wine, which includes legal defense, payment of attorney fees and costs, and
7 payment of any damages.
8 Judgment can and should be entered, ordering Strange Wines to defend and indemnify
9 CCWS for Balcom’s claims to the Jules Harrison Wine.
10 2. Under the Settlement Agreement, Strange Wines Must Provide a Declaration
11 Authenticating the ESI It Produced.
12 Section 1.2 of the Settlement Agreement provides that “Strange Wines agrees to execute
13 a declaration authenticating any ESI produced, if necessary, within five (5) days of a written
14 request made by CCWS.” (Haan Decl., Ex. B, p. 2).
15 Here, CCWS sent written demand for the authentication declaration on December 2,
16 2019 (See Haan Decl., Ex. F, p. 3). Strange Wines has failed to provide an authentication
17 declaration within the required five days of the demand, and thus the Settlement Agreement
18 must be entered as a judgment ordering Strange Wines to provide the declaration.
19 B. CCWS Is Entitled to Recover the Attorney Fees It Incurred in Bringing this
20 Motion.
21 Section 10.1 of the Settlement Agreement provides that the prevailing party in any
22 proceeding brought to enforce the agreement shall recover its attorney fees from the losing
23 party. (Haan Decl., Ex. A, p. 6).
24 As discussed above, Strange Wines’ failure to comply with its obligations under the
25 Settlement Agreement has forced CCWS to incur attorney fees of $3,547.50 and court costs of
26 $95.00 in bringing this Motion. (Haan Decl., ¶ 6). CCWS estimates it will incur another
27 $1,300.00 in fees in reviewing the opposition, preparing a reply, and attending the hearing.
28 (Ibid.). Thus, CCWS should be awarded $4,942.50 in attorney fees and costs.
6
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
IV. CONCLUSION
For the foregoing reasons, the Motion must be granted, with Strange Wines ordered to
defend and indemnify CCWS against Balcom's claims to the ]ules Harrison Wine, and provide a
declaration authenticating ESI.
\OCOQONU'IAWNr—l
ROGERS, SHEFFIELD & CAMPBELL, LLP
Dated: February 25,2020 WM%
john H. Haan,]r.
Scott G. Soulages
Attorneys for Plain tifl/Cross-Defen dant CENTRAL
COAST WINE WAREHOUSE, LIMITED PARTNERSHIP
mummupHooooqmm-bwwr—xo
NNNNNNNNNHHHHHHHHHH
7
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
PRQQF QF SERVICE
Iam a resident ofthe State of California. My business address is ROGERS, SHEFFIELD 8;
CAMPBELL, LLP, 427 East Carrillo Street, Santa Barbara, California 93101. Iam over the age
of eighteen (18] years and not a party to the aforementioned cause.
On the date set forth below I served on the interested parties in this matter the
following document:
OCDNOM-PWNH
PLAINTIFF/CROSS-DEFENDANT CENTRAL COAST WINE WAREHOUSE,
LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP DOING BUSINESS
AS CENTRAL COAST WINE SERVICES' NOTICE OF MOTION AND MOTION TO ENFORCE
SETTLEMENT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES
[X] by placing the document(s] listed above in a sealed envelope with postage thereon fully
prepaid, in the United States mail at Santa Barbara, California addressed as set forth
below:
[X] by email or electronic transmission: Icaused the document(s) to be sent from email
address julia@rogerssheffield.com to the persons at the email address listed below. I
did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful:
LEE SACKS
LAW OFFICES OF LEE SACKS, APC
324 SOUTH BEVERLY DRIVE, SUITE 496
BEVERLY HILLS, CA 90212
sackslawgroup@aol.com
Attorneysfor Defendant Vins Etrange, a California Corporation dba Strange Wines
[0E DIVINCENZO, REMER DIVINCENZO & GRIFFITH, APC
220 Newport Center Drive #11-386, Newport Beach, CA 92660
j.divincenzo@rdgattorneys.com
Attorneysfor Defendant FPD,
NNNNNNNNNHHHHHHHHHH
Inc dba Balcom Family Cellars
oomcxm-pwwwooooxloxm-pp—so
lam readily familiar with the firm's business practice for collection and processing of
correspondence for mailing. Under that practice, correspondence or documents served as
above indicated would be deposited with the United States Postal Service the same day in the
ordinary course ofbusiness. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
the date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws ofthe State of California that the
foregoing is true and correct.
,-
Date: February 25,2020
[u] M. h mpson
8
PLAINTIFF/CROSS-DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara ROGERS, SHEFFIELD & CAMPBELL, LLP Darrel E. Parker, Executive Officer 1 John H. Haan, Jr. (SBN 243223) 2/26/2020 2:25 PM Scott G. Soulages (SBN 302867) By: Ninette Height, Deputy 2 427 East Carrillo Street Santa Barbara, California 93101 3 T: (805) 963-9721 F: (805) 966-3715 4 Attorneys for Plaintiff/Cross-Defendant 5 Central Coast Wine Warehouse, Limited Partnership 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA BARBARA – COOK DIVISION 11 12 CENTRAL COAST WINE WAREHOUSE, ) Case No. 17CV03960 LIMITED PARTNERSHIP, a California limited ) Assigned to Hon. Timothy J. Staffel 13 partnership doing business as CENTRAL ) COAST WINE SERVICES, ) PLAINTIFF/CROSS-DEFENDANT 14 CENTRAL COAST WINE WAREHOUSE, ) LIMITED PARTNERSHIP, A CALIFORNIA 15 Plaintiff, ) LIMITED PARTNERSHIP DOING ) BUSINESS AS CENTRAL COAST WINE 16 v. ) SERVICES’ NOTICE OF MOTION AND ) MOTION TO ENFORCE SETTLEMENT 17 AGREEMENT; MEMORANDUM F.P.D., INC., a California corporation doing ) OF POINTS AND AUTHORITIES 18 business as BALCOM FAMILY CELLARS; ) VINS ETRANGE, a California corporation ) DATE: April 1, 2020 19 TIME 8:30 a.m. doing business as STRANGE WINES; and ) DOES 1-20, ) DEPT.: SM-3 20 ) 21 Defendants. ) ) 22 ) 23 And related Cross-Complaint. ) ) 24 25 TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: 26 YOU ARE HEREBY NOTIFIED THAT on April 1, 2020 at 8:30 a.m., or as soon as the 27 matter may be heard in Department SM-1 of the above-entitled court located at 312-C East 28 Cook Street, Building E, Santa Maria, California, Plaintiff and Cross-Defendant, CENTRAL 1 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT COAST WINE WAREHOUSE, LIMITED PARTNERSHIP, a California limited partnership doing business as CENTRAL COAST WINE SERVICES (“CCWS”), will move the Court for an order enforcing the Settlement Agreement reached in the herein action between CCWS and Defendant VINS ETRANGE, a California corporation doing business as STRANGE WINES ("Strange Wines") (the “Settlement Agreement”) \DWQGNU‘luh-w—A as a judgment ordering Strange Wines to provide a declaration authenticating electronically stored information it produced, and to indemnify CCWS against certain claims made by Defendant/Cross-Complainant F.P.D., INC., 3 California corporation doing business as BALCOM FAMILY CELLARS ("Balcom"). This Motion is based on the grounds that per the Settlement Agreement, the Court has retained jurisdiction under Code of Civil Procedure section 664.6 to enforce the parties’ settlement. This Motion will be based upon this Notice, the attached Memorandum of Points and Authorities, and the Declaration oflohn H. Haan, ]r. filed concurrently herewith, and the records and files in this action. Dated: NNNNNNNNNHHHHHHHHD—‘H February 25,2020 WW ROGERS, SHEFFIELD john H. ilaan, ]r. Scott G. Soulages & CAMPBELL, LLP Attorneys for Plaintfi/Cross-Defendant CENTRAL COAST WINE WAREHOUSE, LIMITED PARTNERSHIP ODVO\U1>PWNHO©OD\IO\U1~PUJNHO 2 PLAINTIFF/CROSS-DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 CCWS files this Motion to enforce the Settlement Agreement because Strange Wines 4 refuses, after demand, to defend and indemnify CCWS as set forth therein. Despite Strange 5 Wines’ representations and warranties in the Settlement Agreement that it had sole title to 6 certain wine referred to as the Jules Harrison Wine, Balcom continues to assert claims thereto 7 in its cross-complaint against CCWS. Balcom’s assertion of claims triggers Strange Wines’ duty 8 to defend and indemnify CCWS, yet it has failed to do so, even after demand. As part of the 9 Settlement Agreement, the parties expressly agreed that it would be subject to the Court’s 10 continued jurisdiction under CCP § 664.6. CCWS is left with no choice but to call upon the 11 Court’s authority to enforce the Settlement Agreement against Strange Wines, and order it to: 12 (1) defend and indemnify CCWS against Balcom’s claims to the Jules Harrison Wine; and (2) 13 execute and deliver to CCWS a declaration authenticating the electronically stored information 14 produced by Strange Wines on May 17, 2019. 15 II. STATEMENT OF FACTS 16 On September 5, 2017, CCWS filed its Complaint against Balcom and Strange Wines 17 alleging claims for (1) Breach of contract and (2) Declaratory Relief (the “Action”) (Declaration 18 of John H. Haan, Jr [“Haan Decl.”], Ex. A). As is set forth in the Complaint, the Action relates to 19 the enforcement of CCWS’s warehouseman’s lien on wine that was stored by Balcom at CCWS’s 20 premises pursuant to a storage agreement dated October 17, 2006 between CCWS and Balcom 21 (“Storage Agreement”). The wine stored at CCWS’s premises pursuant to the Storage 22 Agreement included “Jules Harrison” wine that was owned by Strange Wines (the “Jules 23 Harrison Wine”). Strange Wines is not a party to the Storage Agreement. 24 The gravamen of the Action is Balcom’s breach of the Storage Agreement by failing to 25 pay the required monthly charges and failing to remove its wine inventory, including the Jules 26 Harrison Wine, after the agreement was terminated (See Haan Decl., Ex. A). CCWS exercised its 27 warehouseman’s lien and the wine inventory, including the Jules Harrison Wine, was sold by 28 CCWS to Turn Key Wine Brands, LLC, a California limited liability company (“Turn Key”), by 3 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT 1 private sale on October 31, 2018 pursuant to California Commercial Code § 7210 and the 2 Storage Agreement (Ibid.). 3 On January 9, 2019, CCWS and Strange Wines reached a settlement of the Action, which 4 was memorialized in the Settlement Agreement. (Haan Decl., ¶ 3, Ex. B). The Settlement 5 Agreement provides at section 8.2 that it can be enforced as a judgment per CCP § 664.6 (Haan 6 Decl., Ex. B, p. 5-6). As consideration for the settlement, Strange Wines agreed to a search of its 7 electronic devices for electronically stored information (“ESI”), and agreed to execute a 8 declaration authenticating the ESI produced from the search upon written request (Id. at p. 2). 9 As part of the agreement, Strange Wines expressly represented and warranted that 10 Balcom had no right, interest, claim or title to the Jules Harrison Wine. (See Section 3.2 of the 11 Settlement Agreement, Haan Decl., Ex. B, p. 4). In addition, Strange Wines further warranted 12 and represented that it was the sole owner of the Jules Harrison Wine, and agreed to indemnify 13 CCWS from any claims arising from the Jules Harrison Wine. (See Settlement Agreement § 3.2 14 & Ex. 1, Haan Decl., Ex. B, pgs. 4 & 9). 15 In this action, Balcom has and continues to assert that it owns the Jules Harrison Wine. 16 In its verified response to special interrogatory no. 1 in CCWS’s Special Interrogatories, Set 17 One, which sought identification of all property owned by Balcom that was stored with CCWS, 18 Balcom provided an inventory list which included the Jules Harrison Wine. (See Exhibit A to 19 Balcom’s Responses to Special Interrogatories, Set One, attached to the Haan Decl. as Exhibit 20 D). Balcom’s most recent case management statement, served after the foregoing discovery 21 responses, indicates it is still seeking the same amount of damages set forth in the Complaint 22 (in excess of $150,000). (See Haan Decl., Ex. B, p. 6 and Ex. E, p. 1). Accordingly, Balcom 23 continues to assert ownership of the Jules Harrison Wine and continues to prosecute its claims 24 thereto against CCWS. 25 On December 2, 2019, John Haan, counsel for CCWS emailed counsel for Strange Wines, 26 Lee Sacks. (Haan Decl., ¶ 5). The email requested Strange Wines provide a declaration 27 authenticating electronically stored information it produced as required by section 1.2 of the 28 Settlement Agreement. (Haan Decl., ¶ 5 and Ex. F, p. 3). Further, the email informed Mr. Sacks 4 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT 1 of Balcom’s claims to the Jules Harrison Wine, and requested confirmation that Strange Wines 2 would defend and indemnify CCWS against Balcom’s claims. (Ibid.). After Mr. Haan sent a 3 follow up email on December 11, 2019, Mr. Sacks replied stating he had not spoken with his 4 client. (Haan Decl., Ex. F, p. 1). Mr. Sacks has provided no further response and CCWS is left to 5 seek enforcement of the Settlement Agreement by way of this Motion. (Haan Decl. at ¶ 5). 6 III. DISCUSSION 7 A. The Settlement Agreement Must Be Enforced as a Judgment Ordering 8 Strange Wines to Indemnify CCWS and Provide a Declaration Authenticating ESI. 9 Under section 664.6 of the Code of Civil Procedure, a trial court may enforce a 10 settlement agreement made during pending litigation if the parties entered into the agreement 11 either orally before the court or in writing outside the presence of the court. (Elyaoudayan v. 12 Hoffman (2003) 104 Cal. App. 4th 1421, 1424). A party moving for entry of judgment pursuant 13 to CCP § 664.6 need not establish a breach of the settlement agreement. (Hines v. Luke (2008) 14 167 Cal.App.4th 1174, 1184–85). Accordingly, the court is authorized to enter judgment 15 pursuant to the settlement regardless of whether the settlement’s obligations were performed 16 or excused. (Ibid.). Settlement agreements are contracts and are governed by the same legal 17 principles applicable to contracts in general. (Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 18 1681). 19 1. Under the Settlement Agreement, Strange Wines is Obligated to Indemnify 20 CCWS to the Extent Balcom Claims Ownership of the Jules Harrison Wine. 21 Here, the parties clearly and expressly agreed that the Settlement Agreement would be 22 enforceable as a judgment under CCP § 664.6. Section 8.3 specifically provides for the court to 23 retain jurisdiction and enforce the terms of the Settlement Agreement, including future and 24 executory terms (Haan Decl., Ex. B, p. 6). Thus, there is no question about the enforceability of 25 the Settlement Agreement with regard to Strange Wines’ indemnity obligations. 26 Strange Wines’ duty to defend and indemnify CCWS per the Settlement Agreement has 27 been triggered. Balcom has and continues to assert claims to the Jules Harrison Wine, 28 including in its most recent case management statement. Balcom has claimed title to the Jules 5 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT 1 Harrison Wine in discovery responses verified under penalty of perjury, and has provided no 2 withdrawal or qualification of the claim. CCWS has notified Strange Wines of Balcom’s claims, 3 and has demanded Strange Wines fulfill its indemnity obligation under the Settlement 4 Agreement. Strange Wines has refused to do so, and therefore is in breach of the Settlement 5 Agreement. Strange Wines must be ordered to indemnify CCWS against Balcom’s claims to the 6 Jules Harrison Wine, which includes legal defense, payment of attorney fees and costs, and 7 payment of any damages. 8 Judgment can and should be entered, ordering Strange Wines to defend and indemnify 9 CCWS for Balcom’s claims to the Jules Harrison Wine. 10 2. Under the Settlement Agreement, Strange Wines Must Provide a Declaration 11 Authenticating the ESI It Produced. 12 Section 1.2 of the Settlement Agreement provides that “Strange Wines agrees to execute 13 a declaration authenticating any ESI produced, if necessary, within five (5) days of a written 14 request made by CCWS.” (Haan Decl., Ex. B, p. 2). 15 Here, CCWS sent written demand for the authentication declaration on December 2, 16 2019 (See Haan Decl., Ex. F, p. 3). Strange Wines has failed to provide an authentication 17 declaration within the required five days of the demand, and thus the Settlement Agreement 18 must be entered as a judgment ordering Strange Wines to provide the declaration. 19 B. CCWS Is Entitled to Recover the Attorney Fees It Incurred in Bringing this 20 Motion. 21 Section 10.1 of the Settlement Agreement provides that the prevailing party in any 22 proceeding brought to enforce the agreement shall recover its attorney fees from the losing 23 party. (Haan Decl., Ex. A, p. 6). 24 As discussed above, Strange Wines’ failure to comply with its obligations under the 25 Settlement Agreement has forced CCWS to incur attorney fees of $3,547.50 and court costs of 26 $95.00 in bringing this Motion. (Haan Decl., ¶ 6). CCWS estimates it will incur another 27 $1,300.00 in fees in reviewing the opposition, preparing a reply, and attending the hearing. 28 (Ibid.). Thus, CCWS should be awarded $4,942.50 in attorney fees and costs. 6 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT IV. CONCLUSION For the foregoing reasons, the Motion must be granted, with Strange Wines ordered to defend and indemnify CCWS against Balcom's claims to the ]ules Harrison Wine, and provide a declaration authenticating ESI. \OCOQONU'IAWNr—l ROGERS, SHEFFIELD & CAMPBELL, LLP Dated: February 25,2020 WM% john H. Haan,]r. Scott G. Soulages Attorneys for Plain tifl/Cross-Defen dant CENTRAL COAST WINE WAREHOUSE, LIMITED PARTNERSHIP mummupHooooqmm-bwwr—xo NNNNNNNNNHHHHHHHHHH 7 PLAINTIFF/CROSS-DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT PRQQF QF SERVICE Iam a resident ofthe State of California. My business address is ROGERS, SHEFFIELD 8; CAMPBELL, LLP, 427 East Carrillo Street, Santa Barbara, California 93101. Iam over the age of eighteen (18] years and not a party to the aforementioned cause. On the date set forth below I served on the interested parties in this matter the following document: OCDNOM-PWNH PLAINTIFF/CROSS-DEFENDANT CENTRAL COAST WINE WAREHOUSE, LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP DOING BUSINESS AS CENTRAL COAST WINE SERVICES' NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES [X] by placing the document(s] listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Santa Barbara, California addressed as set forth below: [X] by email or electronic transmission: Icaused the document(s) to be sent from email address julia@rogerssheffield.com to the persons at the email address listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful: LEE SACKS LAW OFFICES OF LEE SACKS, APC 324 SOUTH BEVERLY DRIVE, SUITE 496 BEVERLY HILLS, CA 90212 sackslawgroup@aol.com Attorneysfor Defendant Vins Etrange, a California Corporation dba Strange Wines [0E DIVINCENZO, REMER DIVINCENZO & GRIFFITH, APC 220 Newport Center Drive #11-386, Newport Beach, CA 92660 j.divincenzo@rdgattorneys.com Attorneysfor Defendant FPD, NNNNNNNNNHHHHHHHHHH Inc dba Balcom Family Cellars oomcxm-pwwwooooxloxm-pp—so lam readily familiar with the firm's business practice for collection and processing of correspondence for mailing. Under that practice, correspondence or documents served as above indicated would be deposited with the United States Postal Service the same day in the ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. ,- Date: February 25,2020 [u] M. h mpson 8 PLAINTIFF/CROSS-DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT