On July 26, 2012 a
Motion-Secondary
was filed
involving a dispute between
Commerce Bank,
and
Georgina Ann Martinez,
Patrick Martinez,
for civil
in the District Court of Santa Clara County.
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1 File No. 11-02421-0
Robert Scott Kennard
2 State Bar No. 117017
Joseph Helfrick
3 State Bar No. 314258
NELSON & KENNARD
4 5011 Dudley Blvd, Bldg 250, Bay G
McClellan, CA 95652
5 P . O . Box 13807
Sacramento, CA 95853
6 Telephone: ( 9 1 6 ) 920-·2295
Facsimile: ( 916) 92 0 - 0 68 2
7
Attorneys for Plaintiff
8 COMMERCE BANK
9 SUPERIOR COURT OF C AL I F O RN I A , COUNTY OF SANTA CLARA
UNLIMITED CIVIL CASE
10
11
BANK, ) CASE NO. 112CV229192
COMMERCE
)
12
Plaintiff, )
13 ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF MOTION
vs.
14 TO SET ASIDE D I S M I S S AL AND FOR
)
al. ) ENTRY OF JUDGMENT PURSUANT TO
GEORGINA ANN MARTINEZ, et
15
) STIPULATION OF THE PARTIES
Defendants )
16
) Date: November 2 1 , 2019
17 ) Time: 9 : 0 0 a . m .
) Dept: 9
18
)
) Complaint filed: 7/26/12
19
) Trial Date: None
20 )
21 I .
22 Summary of Facts
23 On or about September 12, 2012, Plaintiff COMMERCE BANK
24 ("Plaintiff"), and Defendants GEORGINA ANN MARTINEZ and PATRICK J
25 MARTINEZ ("Defendants") entered into a "Settlement Agreement,"
26 settling the above-captioned case. Pursuant to the agreement, the
27 parties agreed that a judgment could be entered against Defendants,
28 but the judgment would not be entered so long as Defendants made
MEMORANDUM OF POINTS AND AUTHORITIES - 1
1 monthly payments on an agreed settlement amount. The parties
2 expressly agreed that the court shall retain jurisdiction over the
3 parties to enforce the settlement until performance in full of the
4 terms of the agreement. Thereafter, Defendants defaulted on March
5 30, 2019. Plaintiff now moves the court to set aside the dismissal
6 and for entry of judgment, less credit for payments received, plus
7 previous court costs, accrued interest per annum, attorney's fees
8 and court costs incurred in the filing of this motion.
9 II.
10 Discussion
11 Where the parties entered into a written agreement signed by
12 the parties to settle the above-captioned case, the court, upon
13 motion, may enter judgment pursuant to the terms of the settlement.
14 Cal. C . C . P . § 6 6 4 . 6 .
15 For the reasons set forth more explicitly in the Declaration of
16 Joseph Helfrick, filed concurrently herewith, the court should enter
17 judgment in favor of Plaintiff and against Defendants.
18 Ill
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21 Ill
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24 Ill
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27 Ill
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MEMORANDUM OF POINTS AND AUTHORITIES - 2
1 III.
2 Conclusion
3 For the foregoing reasons, Plaintiff moves the court to enforce
4 the settlement agreement and to enter judgment in favor of Plaintiff
5 and against Defendants in the sum of $ 1 8 , 0 7 3 . 5 5 .
6
7 ubmitted,
8
9
Helfrick
11
Atto ey for Plaintiff
COMMERCE BANK
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MEMORANDUM OF POINTS AND AUTHORITIES - 3
Document Filed Date
September 26, 2019
Case Filing Date
July 26, 2012
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1 File No. 11-02421-0 Robert Scott Kennard 2 State Bar No. 117017 Joseph Helfrick 3 State Bar No. 314258 NELSON & KENNARD 4 5011 Dudley Blvd, Bldg 250, Bay G McClellan, CA 95652 5 P . O . Box 13807 Sacramento, CA 95853 6 Telephone: ( 9 1 6 ) 920-·2295 Facsimile: ( 916) 92 0 - 0 68 2 7 Attorneys for Plaintiff 8 COMMERCE BANK 9 SUPERIOR COURT OF C AL I F O RN I A , COUNTY OF SANTA CLARA UNLIMITED CIVIL CASE 10 11 BANK, ) CASE NO. 112CV229192 COMMERCE ) 12 Plaintiff, ) 13 ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF MOTION vs. 14 TO SET ASIDE D I S M I S S AL AND FOR ) al. ) ENTRY OF JUDGMENT PURSUANT TO GEORGINA ANN MARTINEZ, et 15 ) STIPULATION OF THE PARTIES Defendants ) 16 ) Date: November 2 1 , 2019 17 ) Time: 9 : 0 0 a . m . ) Dept: 9 18 ) ) Complaint filed: 7/26/12 19 ) Trial Date: None 20 ) 21 I . 22 Summary of Facts 23 On or about September 12, 2012, Plaintiff COMMERCE BANK 24 ("Plaintiff"), and Defendants GEORGINA ANN MARTINEZ and PATRICK J 25 MARTINEZ ("Defendants") entered into a "Settlement Agreement," 26 settling the above-captioned case. Pursuant to the agreement, the 27 parties agreed that a judgment could be entered against Defendants, 28 but the judgment would not be entered so long as Defendants made MEMORANDUM OF POINTS AND AUTHORITIES - 1 1 monthly payments on an agreed settlement amount. The parties 2 expressly agreed that the court shall retain jurisdiction over the 3 parties to enforce the settlement until performance in full of the 4 terms of the agreement. Thereafter, Defendants defaulted on March 5 30, 2019. Plaintiff now moves the court to set aside the dismissal 6 and for entry of judgment, less credit for payments received, plus 7 previous court costs, accrued interest per annum, attorney's fees 8 and court costs incurred in the filing of this motion. 9 II. 10 Discussion 11 Where the parties entered into a written agreement signed by 12 the parties to settle the above-captioned case, the court, upon 13 motion, may enter judgment pursuant to the terms of the settlement. 14 Cal. C . C . P . § 6 6 4 . 6 . 15 For the reasons set forth more explicitly in the Declaration of 16 Joseph Helfrick, filed concurrently herewith, the court should enter 17 judgment in favor of Plaintiff and against Defendants. 18 Ill 19 20 21 Ill 22 23 24 Ill 25 26 27 Ill 28 MEMORANDUM OF POINTS AND AUTHORITIES - 2 1 III. 2 Conclusion 3 For the foregoing reasons, Plaintiff moves the court to enforce 4 the settlement agreement and to enter judgment in favor of Plaintiff 5 and against Defendants in the sum of $ 1 8 , 0 7 3 . 5 5 . 6 7 ubmitted, 8 9 Helfrick 11 Atto ey for Plaintiff COMMERCE BANK 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES - 3