Preview
y= YORK OUN Kk 09 09 Dv INDEX NO. 150597/2014
NYSCEF BOC. NO. 12 RECEIVED NYSCEF: 09/09/2015
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: p, BLUTH PART 22.
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Justice
—
Index Number : 150597/2014
HERNANDEZ, PAULINO A. INDEX NO.
vs. MOTION DATE
LUXOR TRANSPORT
SEQUENCE NUMBER : 001 MOTION SEQ. NO.
STRIKE ANSWER
—
The following papers, numbered 1 to , Were read on this motion to/for
Notice of Motion/Order to Show Cause — Affidavits — Exhibits J No(s).
Answering Affidavits — Exhibits J Nojs).
Replying Affidavits J Nojs).
Upon the foregoing papers, it is ordered that this motion is
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09/04/2015 11:58 MolodsSeltz&DeSant la 2128694242 NO. 082 #002
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK
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PAULINO A. HERNANDEZ,
Plaintiff, Index No.: 150597/2014
-against- STIPULATION
LUXOR TRANSPORT CORP, and HOWARD
D. KLINE
Defendants.
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IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the
respective parties herein that plaintiff, PAULINO A. HERNANDEZ’s, Motion to Strike and/or
Preclude, returnable on September 8, 2015, is hercby withdrawn.
IT IS FURTHER STIPULATED AND AGREED, by and between the respective
parties herein, that defendant’s counsel will provide plaimiff’s office with an Affidavit of No
Lxcess within 30 days.
Ir iS FURTHER STIPULATED AND AGREICD, by and between the respective
parties herein, that a fax copy of this Stipulation shall have the sume force and affect as an
original copy.
Dated: New York, New York
September 4, 2015
SITULMAN LAW OFFICES, P.C. MOLOD SPITZ & DeSANTIS, PG,
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By
CS By: GALORE) [puecher
faintill Attorneys for Defendant
118-35 Queens Blvd., Suite 1250 LUXOR TRANSPORT: 0) and
Forest Hills, NY 11375 HOWARD D. KLINE
Tel: (718) 205-1010 1430 Broadway, 21" Floor
Fax: (718) 205-2066 New York, NY 10018
Tel: (212) 869-3200
Fax: (212) 869-4242
File No.: PIC-4145
MOLOD Spitz & DESANTIS, 1.C.
S
> - my a
-
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
PATRICK A. BERRY, being duly sworn, deposes and says: I am not a party to this
action, am over 18 years of age and reside in Brooklyn, New York.
On the 8" day of September, 2015, I electronically filed with the Supreme Court, County
of New York, and served by operation of the Court’s electronic filing system, upon the following
attorney(s) as appearing on the Supreme Court, State of New York Electronic Filing Website at
the email addresses designated by said attorney(s), a true copy of STIPULATION:
SHULMAN LAW OFFICES, P.C.
Attorneys for Plaintiff
118-35 Queens Blvd., Suite 1250
Forest Hills, NY 11375
Tel: (718) 205-1010
Fax: (718) 205-2066
dmitriyshulman@optonline.net
TRICK A¢
Sworn to before me this
8" day of September, 2015
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Not
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MOLOD Spitz & DESANTIS, P.C.
IDS EINES vee fear Vv Oe
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PAULINO A. HERNANDEZ,
Plaintiff,
-against-
LUXOR TRANSPORT CORP. and HOWARD D. KLINE,
Defendants.
STIPULATION
MOLOD Spitz & DESANTIS, P.C.
Attorneys for Defts. LUXOR TRANSPORT CORP. and HOWARD
D. KLINE
1430 BROADWAY. 21ST FLOOR
NEW York, NY 10018-3347
(212) 869-3200
To:
Attorney(s) for
FILE NO.: PIC-4145
Service of a copy of the within is hereby admitted.
Dated:
Attorney(s) for
PLEASE TAKE NOTICE
o that the within is a (certified) true copy of a
x NOTICE OF
& entry duly entered in the office of the clerk of the within named court on
Q that an Order of which the within is a true copy will be presented for settlement to the Hon.
NOTICE OF
2 SETTLEMENT one of the judges of the within named Court,
at
on at M.
Dated,
MOLOD SPITZ & DESANTIS, P.C.
Attorneys for
To 1430 BROADWAY, 21ST FLOOR
New York, NY 10018-3347
Attorney(s) for
Related Content
in New York County
Case
Linda Li v. Iqvia, Inc.
Jul 08, 2024 |
Torts - Other (Discrimination NYCHRL) |
Torts - Other (Discrimination NYCHRL) |
156194/2024
Ruling
Maria Garcia vs Manuel Faria
Jul 10, 2024 |
22CV-01305
22CV-01305 Maria Garcia v. Manuel Faria
Mandatory Settlement Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance.
Ruling
MICHAEL ROSAS, ET AL. VS OC AUTO EXCHANGE DBA LA AUTO EXCHANGE, A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
22PSCV01925
Case Number:
22PSCV01925
Hearing Date:
July 9, 2024
Dept:
6
CASE NAME:
Michael Rosas, et al. v. OC Auto Exchange dba LA Auto Exchange, et al.
Motion to be Relieved as Plaintiffs Counsel
TENTATIVE RULING
The Court GRANTS the motion. Plaintiffs Counsel must resubmit a correct and complete proposed order prior to the hearing, addressing the items discussed above, including the correct courthouse address in the caption and noting that the order is effective upon the filing of the proof of service of the signed order (Item 5.a.).
Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days.
BACKGROUND
This is a fraud action. On November 21, 2022, plaintiffs Michael Rosas and Odalys Rosas (collectively, Plaintiffs) filed this action against defendants OC Auto Exchange dba LA Auto Exchange, a California corporation, Western Surety Company, a South Dakota corporation, Capital One Auto Finance Inc., a Texas Corporation (collectively, Defendants), and Does 1 through 10. On February 21, 2023, Plaintiffs filed the operative First Amended Complaint against Defendants and Does 1 through 10, alleging causes of action for fraud & deceit, negligent misrepresentation, violation of Business and Professions Code section 17200, action for rescission of sales contract for sale of goods pursuant to California [
sic
]
Code section 1698, violation of California Civil Code section 1632, violation of the Song-Beverly Consumer Warranty [
sic
], Civil Code section 1790, et seq., violation of the Consumers [
sic
] Legal Remedies Act Equitable and Injunctive Relief, and violation of Vehicle Code section 11711.
On September 5, 2023, Ben Roberts of Law Office of Ben Roberts moved to be relieved as counsel for Plaintiffs. Plaintiffs have not opposed the motion.
On March 25, 2024, the Court denied the motion without prejudice.
On June 13, 2024,
Ben Roberts of Law Office of Ben Roberts moved to be relieved as counsel for Plaintiffs. Plaintiffs have not opposed the motion.
LEGAL STANDARD
The Court has discretion to allow an attorney to withdraw, and such a motion should be granted, provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (
See
Ramirez v. Sturdevant
(1994) 21 Cal.App.4th 904, 915;
People v. Prince
(1968) 268 Cal.App.2d 398, 403-407.)
A motion to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)
The requisite forms must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, Rule 3.1362, subd. (d).)
DISCUSSION
Ben Roberts of Law Office of Ben Roberts (Counsel) seeks to be relieved as counsel for Plaintiffs Michael Rosas and Odalys Rosas. Counsel contends he and his firm have lost all contact with Plaintiffs. (Roberts Decls., ¶ 2.)
Grounds for permitting an attorney to withdraw from representation include the clients conduct that renders it unreasonably difficult for the lawyer to carry out the representation effectively[.] (Cal. Rules of Professional Conduct, rule 1.16, subd. (b)(4).) A breakdown in the attorney-client relationship is also grounds for allowing the attorney to withdraw. (
Estate of Falco
(1987) 188 Cal.App.3d 1004, 1014.) While the Court finds Plaintiffs lack of communication sufficient grounds for permitting withdrawal, the Court finds a few issues with Counsels motions that need to be fixed.
First, each of the Judicial Council forms Counsel filed with the Court show that Counsel provided the wrong courthouse contact information in the caption of each document. Counsel provided the following contact information: 1427 West Covina Parkway, Compton, CA 90220. The correct courthouse address is 1427 West Covina Parkway, West Covina, CA 91790. Nevertheless, the proof of service filed on June 13, 2024, lists the correct courthouse address and the declaration provides the correct courthouse address for the Post-Arbitration Status Conference. The Court will not deny the motion on this ground but admonishes Counsel to carefully proofread documents to ensure they are accurate.
Second, the proposed order does not include the Post-Arbitration Status Conference scheduled for July 30, 2024. On May 13, 2024, the Courts minute order provided the new date. The motions to be relieved as counsel were filed on June 13, 2024, therefore, counsel was aware of the new date but failed to include it in the proposed order. The proposed order is also incomplete in that items 3, 5, 6, 9 and as previously discussed, item 7, have not been completed.
Notwithstanding, the Court GRANTS the motion. Plaintiff must resubmit a correct and complete proposed order prior to the hearing, addressing the items discussed above, including the correct courthouse address in the caption and noting that the order is effective upon the filing of the proof of service of the signed order (Item 5.a.).
CONCLUSION
The Court GRANTS the motion. Plaintiffs Counsel must resubmit a correct and complete proposed order prior to the hearing, addressing the items discussed above, including the correct courthouse address in the caption and noting that the order is effective upon the filing of the proof of service of the signed order (Item 5.a.).
Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days.
Ruling
MARQUEZ vs TUTTOILMONDO
Jul 11, 2024 |
CVSW2310812
MARQUEZ VS MOTION FOR RECONSIDERATION OF
CVSW2310812
TUTTOILMONDO SANCTIONS
Tentative Ruling:
The Motion is DENIED. There are no new facts or law. Plaintiff fails to set forth a sufficient
evidentiary basis upon which to conclude that she was not served with the motion to compel
further responses.
Plaintiff’s motion fails to set forth a sufficient evidentiary basis on which to determine that she
was not served with the motion to compel further responses. Her declaration states that
defendant’s counsel “false[ly] claimed to have mailed me their motion” (Marquez declaration, p.
4, ln. 19), but fails to provide any details regarding plaintiff’s practice of monitoring and
reviewing her mail such that it could reasonably be concluded that she did not receive the
motion, let alone that it was not sent. Meanwhile, there is a valid proof of service attached to
the discovery motion and supplemental evidence in the Espinoza declaration submitted in
opposition to this motion to support a finding that the motion was properly served. Plaintiff in
her reply does not dispute that she was actually aware of the motion by the time of the hearing
but provides no explanation for why she did not object or ask for a continuance if she had not
received actual notice of the motion in time to file an opposition.
Ruling
TRAVELERS COMMERCIAL INSURANCE COMPANY VS GARY L LUCKENBACHER
Jul 11, 2024 |
23SMCV05929
Case Number:
23SMCV05929
Hearing Date:
July 11, 2024
Dept:
P
Tentative Ruling
Travelers Commercial Insurance Co. v. Luckenbacher, Case No. 23SMCV05929
Hearing date July 11, 2024
Travelers Motions for Orders Compelling Responses to Form Interrogatories, Special Interrogatives, and Demand for Production of Documents and Request for Monetary Sanctions
In this uninsured motorist case, plaintiff moves to compel defendants responses to form interrogatories, special interrogatories, and demand for production of documents and requests sanctions. No opposition, which would have been due
nine court days prior to the hearing (Code Civ. Proc. §1005(b)) was filed.
If a party to whom interrogatories or an inspection demand were directed fails to serve a timely response, the propounding party may move for an order compelling responses without objections. Code Civ. Proc. §§2030.290(b), 2031.300(b). Moreover, failure to timely serve responses waives objections to the requests. Code Civ. Proc. §§2030.290(a), 2031.300(a). Failure to verify a response is equivalent to no response at all.
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636.
If a party unsuccessfully made or opposed such a motion, the court shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code Civ. Proc. §§2030.290(c), 2031.300(c). Sanctions may be awarded even though no opposition was filed or the requested discovery was provided after the motion was filed. CRC Rule 3.1348(a).
Defendant failed to respond. See generally Volk decls. All objections to the requests are waived.
Monetary sanctions are warranted. Plaintiffs counsel requests $841.65 for each motion, representing 4 hours of work (2 hours to draft and 2 hours to prepare for and attend the hearing) at counsels hourly rate of $195, plus filing fee of $61.65.
The request for sanctions is granted in a reduced amount because the three motions are virtually identical and are unopposed. The court awards a total of 6 hours (5 hours to draft, 1 hour for hearing) at $195/hour, plus filing fees of $184.95 for three motions.
GRANTED. Defendant to serve complete, verified responses, without objection, within 20 days of this order. The request for sanctions is GRANTED in the total amount of $1,365, plus $184.95 in filing fees, payable within 30 days.
Ruling
SOLIS vs FRIAS
Jul 11, 2024 |
CVRI2306086
MOTION TO COMPEL RESPONSES
TO REQUESTS FOR ADMISSIONS,
CVRI2306086 SOLIS VS FRIAS SET ONE, AND MONETARY
SANCTIONS; EXHIBITS BY JANAE
CHRISTIE SOLIS
Tentative Ruling: Motion denied as the discovery request was served by Plaintiff (a party to the
action) in violation of CCP 1013a.
Ruling
Marcia Kelley vs R.C. Benson & Sons, Inc
Jul 10, 2024 |
23CV02864
23CV02864
KELLEY v. R.C. BENSON & SONS INC.
(UNOPPOSED) MOTION TO INTERVENE
County of Santa Cruz’s motion for leave to intervene is granted. Although the County
failed to attach the proposed complaint in intervention as required under Code of Civil Procedure
section 387, subdivision (c), the Court waives that defect. The complaint in intervention shall be
filed within 14 days of the hearing.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
DALILAH VILLALOBOS, ET AL. VS FINAL TOUCH CONSTRUCTION & DESIGN, ET AL.
Jul 10, 2024 |
20STCV40002
Case Number:
20STCV40002
Hearing Date:
July 10, 2024
Dept:
28
Having set an order to show cause re: dismissal (settlement), the Court rules as follows.
BACKGROUND
On October 19, 2020, Plaintiffs Dalilah Villalobos, by and through her guardian ad litem Laura Eggleston, and Catalina Villalobos, by and through her guardian ad litem Maria Dominguez, filed this action against Defendants Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, Chantra Sun, Lorraine Garcia, Gus Garcia, and Does 1-50 for wrongful death (motor vehicle negligence).
On October 20, 2020, the Court appointed Laura Eggleston to serve as guardian ad litem for Plaintiff Dalilah Villalobos.
On October 29, 2020, the Court appointed Maria Dominguez to serve as guardian ad litem for Catalina Villalobos.
On May 6, 2022, Defendants and Cross-Complainants
Final Touch Construction & Design, Luis Anthony Echeverria, and Luis M. Echeverria
filed an answer and a cross-complaint against Cross-Defendants Roes 1-25 for equitable/implied indemnity, apportionment and contribution, and declaratory relief.
On May 31, 2022, Defendant Chantra Sun filed an answer.
In addition, Cross-Complainant Chantra Sun, individually and as successor-in-interest to the Estate of Katrina Ariana Wilkins-Sun, filed a cross-complaint against Cross-Defendants
Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, and Roes 1-100 for
negligence, wrongful death and survival action damages, equitable/implied indemnity, comparative contribution, apportionment, and tort of another.
On November 29, 2022 and January 4, 2023, the Court dismissed Defendants Lorraine Garcia and Gus Garcia without prejudice at Plaintiffs request.
On June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case on June 5, 2023.
On August 28, 2023, Plaintiffs counsel asked the Court for additional time to submit petitions for approval of minors compromises.
In response, the Court set an order to show cause re: dismissal (settlement) and a status conference re: filing of a petition to approve minors compromise for November 28, 2023.
On November 28, 2023, Plaintiffs counsel asked the Court for a continuance to finish negotiations on the Medi-Cal lien and to file petitions to approve minors compromises.
The Court continued the order to show cause re: dismissal (settlement) and the status conference re: filing of a petition to approve minor's compromise to March 8, 2024.
On March 8, 2024, Plaintiffs counsel did not appear, contact the Court to explain the non-appearance, file a petition to approve minors compromise, or submit a declaration showing good cause.
The Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to April 24, 2024 and ordered counsel to file a declaration at least two court days before April 24, 2024 regarding the status of the petitions and counsel's failure to appear.
On April 22, 2024, Plaintiffs counsel filed a declaration stating his failure to appear at the March 8, 2024 hearing was due to mistake, inadvertence and/or excusable neglect.
Counsel stated: (1) the matter had settled, (2) he was filing petitions to approve minors compromises, and (3) he had reserved hearings on the petitions for May 21, 2024.
Counsel asked the Court to continue the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise for 90 days.
On April 24, 2024, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to May 28, 2024.
The Court ordered that the hearings on petitions to confirm minors compromise reserved for May 28, 2024 were to go forward and moving papers were to be filed timely.
On May 24, 2024, Plaintiffs counsel filed a declaration stating that he did not file the petitions to approve minors compromise timely because
"the guardian ad litems were still selecting the annuity structure for the respective claimants" and counsel was still waiting for fully executed annuity documents.
On
May 28, 2024
, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to July 10, 2024.
Plaintiffs have not filed petitions to approve minors compromises and have not submitted a new declaration showing good cause why the Court should not dismiss the action.
LEGAL STANDARD
Code of Civil Procedure section 583.410 provides:
(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.
(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.
(Code Civ. Proc., § 583.410.)
A discretionary dismissal under [Code of Civil Procedure section 583.410] (or for other delay in prosecution) is without prejudice to renewed litigation.
(L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:190.2, p. 11-83.)
California Rules of Court, rule 3.1385, provides in part:
(b) Dismissal of case
Except as provided in (c) or (d), each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
* * *
(d) Compromise of claims of a minor or disabled person
If the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement, provided the parties have filed appropriate papers to seek court approval of the settlement.
(e) Request for additional time to complete settlement
If a party who has served and filed a notice of settlement under (a) determines that the case cannot be dismissed within the prescribed 45 days, that party must serve and file a notice and a supporting declaration advising the court of that party's inability to dismiss the case within the prescribed time, showing good cause for its inability to do so, and proposing an alternative date for dismissal. The notice and a supporting declaration must be served and filed at least 5 court days before the time for requesting dismissal has elapsed. If good cause is shown, the court must continue the matter to allow additional time to complete the settlement. The court may take such other actions as may be appropriate for the proper management and disposition of the case.
(Cal. Rules of Court, rule 3.1385, subds. (b), (d), (e).)
DISCUSSION
As noted, on June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case.
On August 28, 2023, Plaintiffs counsel confirmed the settlement by asking the Court for additional time to submit petitions to approve minors compromises.
The Court granted the continuance request and granted counsels subsequent continuance requests on November 28, 2023, April 24, 2024, and May 28, 2024.
It is now more than one year after the parties settled the case.
Under California Rules of Court, rule 3.1385(b), except as provided in subdivisions (c) or (d), the Court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
(Cal. Rules of Court, rule 3.1385(b).)
Subdivision (c) of California Rules of Court, rule 3.1385, applies only to conditional settlements.
The notice of settlement here states the settlement was unconditional.
Therefore, subdivision (c) does not apply here.
Subdivision (d) of California Rules of Court, rule 3.1385, states that [i]f the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement,
provided the parties have filed appropriate papers to seek court approval of the settlement
.
(Cal. Rules of Court, rule 3.1385(d), emphasis added.)
Here, Plaintiffs have not filed appropriate papers to seek Court approval of the settlement.
Therefore, subdivision (d) does not prevent the Court from holding an order to show cause hearing.
The Court set the July 10, 2024 order to show cause hearing on May 28, 2024.
Plaintiffs have submitted no papers since May 28, 2024 demonstrating good cause why the case should not be dismissed.
The Court dismisses the case
under
Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
CONCLUSION
Having issued an order to show cause re: dismissal (settlement) on May 28, 2024, and no good cause having been shown, the Court dismisses the case without prejudice
under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
The Court will give notice of this ruling.
Ruling
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS OLUTOYIN OLA TOMAKILI, ET AL.
Jul 11, 2024 |
Echo Dawn Ryan |
19STLC05734
Case Number:
19STLC05734
Hearing Date:
July 11, 2024
Dept:
26
State Farm v. Tomakili, et al.
MOTION TO VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION
(CCP § 664.6)
TENTATIVE RULING:
Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS.
ANALYSIS:
On June 14, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed this subrogation action against Defendant Olutoyin Ola Tomakili (Defendant). Defendant filed an answer on August 16, 2019. On October 26, 2022,
Plaintiff filed a copy of the parties settlement agreement with a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.6. The Court dismissed the action pursuant to the stipulation on November 15, 2022. (Order for Dismissal, 11/15/22.)
On April 17, 2024, Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement, and Enter Judgment. To date, no opposition has been filed.
Legal Standard
The instant motion is brought under Code of Civil Procedure, section 664.6, which states in relevant part:
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.
(Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, parties under section 664.6 meant the litigants themselves, not their attorneys.
(
Levy v. Superior Court
(1995) 10 Cal.4th 578, 586.) The current statute provides that parties includes an attorney who represents the party and an insurers agent. (Code Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (
J.B.B. Investment Partners, Ltd. v. Fair
(2014) 232 Cal.App.4th 974, 985.) The settlement agreement complies with the statutory requirements set forth above because it was signed by both parties and their attorneys. (Motion, Reese Decl., Exh. A, pp. 2-3.)
Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Courts retention of jurisdiction to conform to the statutory language. (
Wackeen v. Malis
(2002) 97 Cal.App.4th 429, 433 [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.].)
The parties request for retention of jurisdiction complies with these requirements because it was made in writing to the Court before the action was dismissed. (Motion, Reese Decl., Exh. A, ¶3.)
The settlement provides that Defendant would pay Plaintiff $12,400.00 through an initial payment from Defendants insurer of $10,000.0, followed by Defendants monthly payments starting on September 1, 2022. (
Id
. at Exh. A, ¶2.) The settlement agreement also provides that upon Defendants default, Plaintiff may seek judgment in the settlement amount, plus costs not to exceed $500.00, less any monies paid. (
Id
. at ¶3.) Payments of $11,100.00 were made towards the settlement, after which Defendant defaulted. (
Id
. at ¶¶4-5 and Exh. C.) Based on the foregoing, Plaintiff is entitled to entry of judgment against Defendant in the amount of $1,300.00 principal ($12,400.00 - $11,100.00) plus costs of $500.00. (
Id
. at ¶8.)
Conclusion
Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS.
Moving party to give notice.
Preview
y= YORK OUN Kk 09 09 Dv INDEX NO. 150597/2014 NYSCEF BOC. NO. 12 RECEIVED NYSCEF: 09/09/2015 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: p, BLUTH PART 22. = Justice — Index Number : 150597/2014 HERNANDEZ, PAULINO A. INDEX NO. vs. MOTION DATE LUXOR TRANSPORT SEQUENCE NUMBER : 001 MOTION SEQ. NO. STRIKE ANSWER — The following papers, numbered 1 to , Were read on this motion to/for Notice of Motion/Order to Show Cause — Affidavits — Exhibits J No(s). Answering Affidavits — Exhibits J Nojs). Replying Affidavits J Nojs). Upon the foregoing papers, it is ordered that this motion is WITHDRAWN PER | ATTACHED STFULATIQN S - - ae Ee NOT CONF. ghi (iS 220N\ . ary one, 52? 09 UN) =a eee ,v.8.C, . (] CASE DISPOSED HON. A! =NE P. BLUTH LJ NON-FINAL DISPOSITION 1, CHECK ONE:...... 2. CHECK AS APPROPRIATE: .......:.000» seedMOTION ts: (IGRANTED ©) DENIED (JGRANTED IN PART CJ OTHER 3. CHECK IF APPROPRIATE: ........ . _] SETTLE ORDER [3 SUBMIT ORDER (D0 NOT POsT CJ FIDUCIARY APPOINTMENT CIREFERENCE A * ost 2015 13:52 FAX = pele ; 09/04/2015 11:58 MolodsSeltz&DeSant la 2128694242 NO. 082 #002 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK ween a wanennennnnnnnnnnew ew nenenenwenennee ner aX PAULINO A. HERNANDEZ, Plaintiff, Index No.: 150597/2014 -against- STIPULATION LUXOR TRANSPORT CORP, and HOWARD D. KLINE Defendants. eeeeeeen necwennereneenenennennsrnenenencenenenennecennnnereneernnnX. IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the respective parties herein that plaintiff, PAULINO A. HERNANDEZ’s, Motion to Strike and/or Preclude, returnable on September 8, 2015, is hercby withdrawn. IT IS FURTHER STIPULATED AND AGREED, by and between the respective parties herein, that defendant’s counsel will provide plaimiff’s office with an Affidavit of No Lxcess within 30 days. Ir iS FURTHER STIPULATED AND AGREICD, by and between the respective parties herein, that a fax copy of this Stipulation shall have the sume force and affect as an original copy. Dated: New York, New York September 4, 2015 SITULMAN LAW OFFICES, P.C. MOLOD SPITZ & DeSANTIS, PG, x2 £ao Gee \ ae By CS By: GALORE) [puecher faintill Attorneys for Defendant 118-35 Queens Blvd., Suite 1250 LUXOR TRANSPORT: 0) and Forest Hills, NY 11375 HOWARD D. KLINE Tel: (718) 205-1010 1430 Broadway, 21" Floor Fax: (718) 205-2066 New York, NY 10018 Tel: (212) 869-3200 Fax: (212) 869-4242 File No.: PIC-4145 MOLOD Spitz & DESANTIS, 1.C. S > - my a - AFFIDAVIT OF SERVICE STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) PATRICK A. BERRY, being duly sworn, deposes and says: I am not a party to this action, am over 18 years of age and reside in Brooklyn, New York. On the 8" day of September, 2015, I electronically filed with the Supreme Court, County of New York, and served by operation of the Court’s electronic filing system, upon the following attorney(s) as appearing on the Supreme Court, State of New York Electronic Filing Website at the email addresses designated by said attorney(s), a true copy of STIPULATION: SHULMAN LAW OFFICES, P.C. Attorneys for Plaintiff 118-35 Queens Blvd., Suite 1250 Forest Hills, NY 11375 Tel: (718) 205-1010 Fax: (718) 205-2066 dmitriyshulman@optonline.net TRICK A¢ Sworn to before me this 8" day of September, 2015 MG Not blio, Stata of New York a Qualif in New iedYork July -- MOLOD Spitz & DESANTIS, P.C. IDS EINES vee fear Vv Oe SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAULINO A. HERNANDEZ, Plaintiff, -against- LUXOR TRANSPORT CORP. and HOWARD D. KLINE, Defendants. STIPULATION MOLOD Spitz & DESANTIS, P.C. Attorneys for Defts. LUXOR TRANSPORT CORP. and HOWARD D. KLINE 1430 BROADWAY. 21ST FLOOR NEW York, NY 10018-3347 (212) 869-3200 To: Attorney(s) for FILE NO.: PIC-4145 Service of a copy of the within is hereby admitted. Dated: Attorney(s) for PLEASE TAKE NOTICE o that the within is a (certified) true copy of a x NOTICE OF & entry duly entered in the office of the clerk of the within named court on Q that an Order of which the within is a true copy will be presented for settlement to the Hon. NOTICE OF 2 SETTLEMENT one of the judges of the within named Court, at on at M. Dated, MOLOD SPITZ & DESANTIS, P.C. Attorneys for To 1430 BROADWAY, 21ST FLOOR New York, NY 10018-3347 Attorney(s) for