Preview
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Miohael G. Miller, Bar No. 136491
Kelsey L. O'Rourke, Bar No. 322676
PERRY, JOHNSON, ANDERSON, MILLER
FILED
'DEe 2 3 2021
& MOSKOWITZ, LLP
3 438 lrt Street,4rh Floor
California 95401 Crlifomit
Sana Rosa,
4 525-8800 DeputyCh*
le: 545-8242
5 Email:
6
7
Attorneys for Plaintiff, Justino Duran
8 Hernandez
9
SUPERTOR COURT OF THE STATE OF CALIFORNIA
l0
COUNTY OF SONOMA
ll
t2
JUSTINO DURAN HERNANDEZ, scv-264987
t3
PlaintifL
t4 @trIoRDER
MOTION
ONPLNNTIFF'S
TO ENFORCE SETTLEMENT
t5 v. AI\[D ENTER JTJDGMENT
l6 ESTABAN DIAZ, DIAZ MARBLE TILE Date: October 27,2021
& STONE, LLC, and DOES l-25, Time: 3:00 p.m.
t7 Dept.: r6
Defendants.
t8 Action Filed: August 15,2019
l9 TrialDates: April 13, 14,15,2021
20
ASSICNED FOR ALL PURPOSES TO
2l HONORABLE PATRICK BRODERICK
22
23 PlaintiffJustino Duran Hernandez's Motion to Enforce Settlement and Enter Judgment
24 carne on regularly at the above-stated date, time and courtroom.
25 The Court, having reviewed Plaintiff s motion and papers filed in support of the
26 motion, issued a tentative ruling attached hereto as Exhibit A and incorporated herein by
27 reference. No one contested the Court's tentative ruling.
28 Because no one contested the tentative ruling, the tentative ruling attached hereto as
S MO1ION TO EN ENTERJUDGMENT
I Exhibit A became the Order of the Court and is the Order of the Court.
2 IT IS SO ORDERBD.
3
4 DATED: /? I?-z lrp'r HONORABLE
JUDGE
PATRICK
OF THE SUPERIOR COURT
BRODERICK
5
6
7 Approved as to form and content:
8
Dated:
9 John Sinclair, Esq.
Attorney for Defendants
l0 ESTABAN DIAZ,DIAZ MARBLE TILE &
STONE. LLC
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t4
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PLATNTIFF'S TOENFORCE ENTERJUDCMENT
EXHIBITA
10n7n1,$tWNn 16 -
Ci\il Dept Lar & Motion Calsdar I Somrna Superl6 Court
THE SUPEITIOR COURT OIt CALITORNIT\
COUNTY OF SONOMA
TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesdan October 27, 2021, 3:00 p.m.
Courtroom 16 - Hon. Patrlck M. Broderlck
3035 Cleveland Avenue, Sulte 200, Santa Roga
PLEASE NOTE: ln accordance with the Order of the Presiding Judge
issued June 14,2021, a party or representative of a party may appear
personally in Courtroom 16 or may appear remotely through Zoom.
Social distancing among members of the public is no longer required
and capacity shall be the normal courtroom capacity. Masks shall be
required for all in person appearances, SourtCall is not p-erulttedtol
this calendar.
TO JOIN "ZOOi/|" ONLINE,
Courtroom {6
Meeti ng lD : 824-7 526-7360
Passcode:840359
pwd:MQs4\40ltsSa ysWnd&g
TO JOIN "ZOOM' BY PHONE,
By Phone (same meetirg lD ard password as listed abow)
(669) 900€833 US (San Jose)
The bllowing tentative rulings willbecome he ruding of the Court mless a parlydesires to be
heard. lf you desire to appear and present oral argument as to any motion, YOU MUST notiff the
Court by telephone at (ZgZ)lilt-G72I- and all o0rer opposing parties of yow lntent to appear !y.
4:00 p,n lqdA)/,-[Egday"October26,2021. Parties inmotionsforclaimsof exemptionare
exempt fom his requlrement.
srchil-dopt-t$larrndion
sondnaooulr.ca.go/a{lreaenlccr/tcntalhordln0 t/19
1uiilA,6i5plffi trll, & Mouon Calenda. I Soncfna Swerlor Court
Ci\al D€pt 18 -
mt specified what discowrytheywould need to do thatthey are now unable to do. The factual additions
to tre SAC are based upon discowry conducted and inbrmation provided from the Debndants ortheir
employees. Additionally, Debndants will be taking deposifons of the Lessee Plaintfr' owners and/or
managers overthe rerttvrlo weeks. (Supp.Gross Decl., tltl3€.) Questiors regarding the factul
allegatiors in the amendments may be directed to hem.
ln sum, Defendants have not shown prejudice. Accordingly, the motion is GRANTED.
Plalntlft'coungel shall submit a wrltten order to the courl consistent with thie ruling and in compliance
with Califomla
Rules of Gonrt, Rule 3.1312.
4. SgV-264987,@i
This matter is on calendarforthe motion of PlaintiffJustino Duran Hernandez ("Plaintiff') bran order
and judgment enforcing the setflement agreement executed by the parties in May of 2021. The motlon
is GRANTED.
Code of Civil Procedure section 664.6 provides, in relevant part "lf parties to pending litigation
stipulate, in a writing sigred by the parties outside of the presence of the court or orally before the court,
br setUement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the
terms of he settlement lf requested by the parties, the court may retain furisdiction owr the parties to
enbrce the settement untl perbmance in fullof tm tems of the setflement."
The parties executed a written set0ement agreement in May o12021 ("Agreemenf). (O'Rourke decl.,
E$lbitA.) ltprovided fordefendant Estaban Diaz ('Dia/') to pay Plaintiffthe toblsum of $145,000
without interest as follows: within 60 after the efiective date of the Agreement Diaz shall pay Plaintiff
$10,000; on or before October 31,2021, Diazshall pay Plaintiff $50,000; on or before April 30, 2022,
Diazshallpay Plaintiff$85,000. (lbid.\ ln exchange and witrin 120 days of the efrective date of the
Agreement, Plaintifi shall deliwr a signed and notarized deed of trust to the property located at 3902
Story Point Road, Santa Rosa, and shallwitMraw the lis pendens and dismlss this action. (lbid.)
DefendanF have failed to make the payments required by the Agreement, (O'Rouke decl., flS.) The
Agreement states that this Court shall retain jurisdiction orrer the parties pursuant to Code of Civil
Procedure section 664.6 to enforce the Agreement, Accordingly, the motion is GMNTED.
The Agreement allows for attorney fees and costs in enficrcing the agreement. (O'Rourke decl., E$ibit
A,1112.) Plaintiffs courselsent6.3 hours preparing the motion. (ld. atfl9.) Counsel's hourlyrate is
somr5 cqrb.cs.g o/orllrb'lq{c6,l€nad\F'rdlru r/cjrll-@l-'l$l4v.modm 9/19
Af,
t027r21, 858 Mdlm Cdendar I Sormn Swcrlc
18 - Lew &
Ciril Dept Cotrt
$250. (lbid;) Plainfifralso irrcuned $90 ln court costs. (/d. atfl10.) Accordirgly, bes and costs are
awadsd in the amount of $1,665.
Plalntlfs coungel shall submlt a written oder to the coufi consistent with this rullng and ln compliancewith Calibrnla
Rules of Couil, Rule 3.1912.
ronoma.cqrb.cagovsllm-tdtlc6rbiladbnllngddral-dept1&laurmdm ldtg
scv-264987
PROOF OF SERVICE BY MAIL
I certiff that I am an employee of the Superior Court of Californi4 County of Sonoma, and that
my business address is 600 Administation Drive, Room 107-J, Santa Rosa" California 95403; that I am
not a party to this case; that I am over the age of l8 years; that I am readily familiar with this office's
practice for collection and processing of correspondence for mailing with the United States Postal
Service; and that on the date shown below I placed a tnre copy of the foregoing attached papers in an
envelolr, sealed and addressed as shown below, for collection and rnailing at Santa Rosq California"
first class, postage fully prepaid, following ordinary business practices.
t2129/2021 Arlene Junior
Court Executive Of,Ecer
J Deputy Clerk
ADDRESSEES
MICHAEL G MILLER
Perry Johnson Anderson Miller & MoskowitzLLP
438 First Sfreet 4th Floor
Santa Rosa CA 95401
Preview
I .' Miohael G. Miller, Bar No. 136491 Kelsey L. O'Rourke, Bar No. 322676 PERRY, JOHNSON, ANDERSON, MILLER FILED 'DEe 2 3 2021 & MOSKOWITZ, LLP 3 438 lrt Street,4rh Floor California 95401 Crlifomit Sana Rosa, 4 525-8800 DeputyCh* le: 545-8242 5 Email: 6 7 Attorneys for Plaintiff, Justino Duran 8 Hernandez 9 SUPERTOR COURT OF THE STATE OF CALIFORNIA l0 COUNTY OF SONOMA ll t2 JUSTINO DURAN HERNANDEZ, scv-264987 t3 PlaintifL t4 @trIoRDER MOTION ONPLNNTIFF'S TO ENFORCE SETTLEMENT t5 v. AI\[D ENTER JTJDGMENT l6 ESTABAN DIAZ, DIAZ MARBLE TILE Date: October 27,2021 & STONE, LLC, and DOES l-25, Time: 3:00 p.m. t7 Dept.: r6 Defendants. t8 Action Filed: August 15,2019 l9 TrialDates: April 13, 14,15,2021 20 ASSICNED FOR ALL PURPOSES TO 2l HONORABLE PATRICK BRODERICK 22 23 PlaintiffJustino Duran Hernandez's Motion to Enforce Settlement and Enter Judgment 24 carne on regularly at the above-stated date, time and courtroom. 25 The Court, having reviewed Plaintiff s motion and papers filed in support of the 26 motion, issued a tentative ruling attached hereto as Exhibit A and incorporated herein by 27 reference. No one contested the Court's tentative ruling. 28 Because no one contested the tentative ruling, the tentative ruling attached hereto as S MO1ION TO EN ENTERJUDGMENT I Exhibit A became the Order of the Court and is the Order of the Court. 2 IT IS SO ORDERBD. 3 4 DATED: /? I?-z lrp'r HONORABLE JUDGE PATRICK OF THE SUPERIOR COURT BRODERICK 5 6 7 Approved as to form and content: 8 Dated: 9 John Sinclair, Esq. Attorney for Defendants l0 ESTABAN DIAZ,DIAZ MARBLE TILE & STONE. LLC ll t2 fr 13 IH t4 6V *? -u >J l5 F= l6 l7 l8 l9 20 2l 22 23 24 25 26 27 28 PLATNTIFF'S TOENFORCE ENTERJUDCMENT EXHIBITA 10n7n1,$tWNn 16 - Ci\il Dept Lar & Motion Calsdar I Somrna Superl6 Court THE SUPEITIOR COURT OIt CALITORNIT\ COUNTY OF SONOMA TENTATIVE RULINGS LAW & MOTION CALENDAR Wednesdan October 27, 2021, 3:00 p.m. Courtroom 16 - Hon. Patrlck M. Broderlck 3035 Cleveland Avenue, Sulte 200, Santa Roga PLEASE NOTE: ln accordance with the Order of the Presiding Judge issued June 14,2021, a party or representative of a party may appear personally in Courtroom 16 or may appear remotely through Zoom. Social distancing among members of the public is no longer required and capacity shall be the normal courtroom capacity. Masks shall be required for all in person appearances, SourtCall is not p-erulttedtol this calendar. TO JOIN "ZOOi/|" ONLINE, Courtroom {6 Meeti ng lD : 824-7 526-7360 Passcode:840359 pwd:MQs4\40ltsSa ysWnd&g TO JOIN "ZOOM' BY PHONE, By Phone (same meetirg lD ard password as listed abow) (669) 900€833 US (San Jose) The bllowing tentative rulings willbecome he ruding of the Court mless a parlydesires to be heard. lf you desire to appear and present oral argument as to any motion, YOU MUST notiff the Court by telephone at (ZgZ)lilt-G72I- and all o0rer opposing parties of yow lntent to appear !y. 4:00 p,n lqdA)/,-[Egday"October26,2021. Parties inmotionsforclaimsof exemptionare exempt fom his requlrement. srchil-dopt-t$larrndion sondnaooulr.ca.go/a{lreaenlccr/tcntalhordln0 t/19 1uiilA,6i5plffi trll, & Mouon Calenda. I Soncfna Swerlor Court Ci\al D€pt 18 - mt specified what discowrytheywould need to do thatthey are now unable to do. The factual additions to tre SAC are based upon discowry conducted and inbrmation provided from the Debndants ortheir employees. Additionally, Debndants will be taking deposifons of the Lessee Plaintfr' owners and/or managers overthe rerttvrlo weeks. (Supp.Gross Decl., tltl3€.) Questiors regarding the factul allegatiors in the amendments may be directed to hem. ln sum, Defendants have not shown prejudice. Accordingly, the motion is GRANTED. Plalntlft'coungel shall submit a wrltten order to the courl consistent with thie ruling and in compliance with Califomla Rules of Gonrt, Rule 3.1312. 4. SgV-264987,@i This matter is on calendarforthe motion of PlaintiffJustino Duran Hernandez ("Plaintiff') bran order and judgment enforcing the setflement agreement executed by the parties in May of 2021. The motlon is GRANTED. Code of Civil Procedure section 664.6 provides, in relevant part "lf parties to pending litigation stipulate, in a writing sigred by the parties outside of the presence of the court or orally before the court, br setUement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of he settlement lf requested by the parties, the court may retain furisdiction owr the parties to enbrce the settement untl perbmance in fullof tm tems of the setflement." The parties executed a written set0ement agreement in May o12021 ("Agreemenf). (O'Rourke decl., E$lbitA.) ltprovided fordefendant Estaban Diaz ('Dia/') to pay Plaintiffthe toblsum of $145,000 without interest as follows: within 60 after the efiective date of the Agreement Diaz shall pay Plaintiff $10,000; on or before October 31,2021, Diazshall pay Plaintiff $50,000; on or before April 30, 2022, Diazshallpay Plaintiff$85,000. (lbid.\ ln exchange and witrin 120 days of the efrective date of the Agreement, Plaintifi shall deliwr a signed and notarized deed of trust to the property located at 3902 Story Point Road, Santa Rosa, and shallwitMraw the lis pendens and dismlss this action. (lbid.) DefendanF have failed to make the payments required by the Agreement, (O'Rouke decl., flS.) The Agreement states that this Court shall retain jurisdiction orrer the parties pursuant to Code of Civil Procedure section 664.6 to enforce the Agreement, Accordingly, the motion is GMNTED. The Agreement allows for attorney fees and costs in enficrcing the agreement. (O'Rourke decl., E$ibit A,1112.) Plaintiffs courselsent6.3 hours preparing the motion. (ld. atfl9.) Counsel's hourlyrate is somr5 cqrb.cs.g o/orllrb'lq{c6,l€nad\F'rdlru r/cjrll-@l-'l$l4v.modm 9/19 Af, t027r21, 858 Mdlm Cdendar I Sormn Swcrlc 18 - Lew & Ciril Dept Cotrt $250. (lbid;) Plainfifralso irrcuned $90 ln court costs. (/d. atfl10.) Accordirgly, bes and costs are awadsd in the amount of $1,665. Plalntlfs coungel shall submlt a written oder to the coufi consistent with this rullng and ln compliancewith Calibrnla Rules of Couil, Rule 3.1912. ronoma.cqrb.cagovsllm-tdtlc6rbiladbnllngddral-dept1&laurmdm ldtg scv-264987 PROOF OF SERVICE BY MAIL I certiff that I am an employee of the Superior Court of Californi4 County of Sonoma, and that my business address is 600 Administation Drive, Room 107-J, Santa Rosa" California 95403; that I am not a party to this case; that I am over the age of l8 years; that I am readily familiar with this office's practice for collection and processing of correspondence for mailing with the United States Postal Service; and that on the date shown below I placed a tnre copy of the foregoing attached papers in an envelolr, sealed and addressed as shown below, for collection and rnailing at Santa Rosq California" first class, postage fully prepaid, following ordinary business practices. t2129/2021 Arlene Junior Court Executive Of,Ecer J Deputy Clerk ADDRESSEES MICHAEL G MILLER Perry Johnson Anderson Miller & MoskowitzLLP 438 First Sfreet 4th Floor Santa Rosa CA 95401