Preview
1 Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
2 1050 Hyde Street ELECTRONICALLY
San Francisco, CA 94109-4917 F I L E D
3 Telephone: (415) 308-9008 Superior Court of California,
Email: nhk111730@sbcglobal.net County of San Francisco
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06/06/2019
Attorney for Plaintiff, KIM KONAMI Clerk of the Court
5 BY: GINA GONZALES
Deputy Clerk
6 SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
7 UNLIMITED JURISDICTION
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KIM KONAMI, ) Case Number: CGC-15-548211
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10 Plaintiff, ) PLAINTIFF’S RESPONSE TO OSC;
) DECLARATION OF NEAL KONAMI;
11 vs. ) [PROPOSED] ORDER; EXHBIT A;
) AND PROOF OF SERVICE
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ARYAN DAVANI, GEORGE KONTRIDZE, )
13 DANIEL C. METZ, TAMRA VAN WYK, ) Date: June 11, 2019 @10:30 am
KEVIN F. DUNNELL, ANNIKA NILSEN, ) Dept.: 610
14 & DOES 1 TO 25, )
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) Action Filed: September 30, 2015
Defendants. ) Mandatory Settlement Conf.: 11/20/18
16 ) Trial Date: December 3, 2019
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Plaintiff, KIM KONAMI, on behalf of the Settling Parties submits the following response
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to the Court’s Order to Show Cause RE Dismissal of the above-entitled action.
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21 On June 3, 2019, Plaintiff’s attorney e-filed and served the attached “Request of the
22 Parties for Retention of Court Jurisdiction Pursuant to C.C.P. Section 664.6 to Enforce Terms of
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Settlement Agreement; Memorandum of Points and Authorities; Declaration of Neal H. Konami;
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[Proposed] Order; Exhibits 1 and A; and Proof of Service.” (See: “EXHIBIT A”)
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Since that time, Plaintiff’s attorney has closely monitored the Court’s website and the lawsuit’s
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27 Register of Actions to confirm the filing and calendaring of the Request. He also made
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PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211)
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telephone and email inquiries to the Court’s E-Filing Hotline, as well as to e-filing service
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provider, RAPID LEGAL. As of 4:28 PM this afternoon, Plaintiff’s attorney received an email
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and voicemail message from Rapid Legal’s customer service manager saying their records still
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5 show Plaintiff’s e-filed Request as “in process,” or “still currently pending in the court’s queue to
6 be reviewed.”
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Given this unexpected processing delay, Plaintiff, on behalf of the Parties, respectfully
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objects to the Court’s dismissal of the instant action on June 11, 2019, and requests a 21-day
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extension of time or until July 2, 2019, for Plaintiff’s attorney to confirm the Court’s review and
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11 acceptance of the Parties’ e-filed Request for the Court’s retained jurisdiction to enforce the
12 terms of their settlement agreement pursuant to C.C.P. § 664.6, pre-dismissal by Plaintiff of her
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entire lawsuit with prejudice.
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DATED: June 6, 2019 /s/ Neal H. Konami, Esq.
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Neal H. Konami, Esq. (SBN 111730)
19 Attorney for PLAINTIFF, Kim Konami
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PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211)
1 Declaration of Neal H. Konami in Support of Response to OSC RE Dismissal
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1. I, Neal H. Konami, Esq., am the sole attorney for Plaintiff Kim Konami in this lawsuit,
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and I declare the following in support of the Plaintiff’s, and the Settling Parties’, request for a
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30-day extension of time for the Court’s processing of the Parties’ Request for the Court’s
6 retained jurisdiction pursuant to CCP Section 664.6, which was e-filed with the Court and served
7 on June 3, 2019;
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2. On June 3, 2019, I e-filed and served the attached “Request of the Parties for Retention of
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Court Jurisdiction Pursuant to C.C.P. Section 664.6 to Enforce Terms of Settlement Agreement;
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11 Memorandum of Points and Authorities; Declaration of Neal H. Konami; [Proposed] Order;
12 Exhibits 1 and A; and Proof of Service.” I have closely monitored the Court’s website and the
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lawsuit Register of Actions since June 3, 2019. I have made telephone and email inquiries to the
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Court’s E-Filing Hotline, as well as to my e-filing service provider, RAPID LEGAL. And only
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as of 4:28 PM this afternoon did I learn from Rapid Legal’s customer service manager that their
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17 records show Plaintiff’s e-filed Request transmitted to the Court the morning of June 3, 2019, to
18 still be “in process,” or “still currently pending in the court’s queue to be reviewed.”
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3. Given this unexpected processing delay, Plaintiff respectfully objects to dismissal of the
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instant action on June 11, 2019, and requests a 21-day extension of time, or until July 2, 2019,
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for Plaintiff’s attorney to confirm the filing, processing, acceptance, and calendaring of the
23 Parties’ Request for the Court’s retained jurisdiction pursuant to C.C.P. § 664.6 to enforce the
24 terms of their settlement agreement, which was fully negotiated and duly executed by all of the
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Settling Parties and their attorneys of record.
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4. And once the Court orders its retained jurisdiction to enforce the settlement agreement, I
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PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211)
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will file the Plaintiffs agreed upon Request for Voluntary Dismissal of her entire lawsuit as soon
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as possible.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct, and to the best of my knowledge and belief
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Dated: June 6, 2019
Ne~l730)
Attorney for Plaintiff, Kim Konami
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PLAINTIFF ' S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-1 5-548211)
1 Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
2 1050 Hyde Street
San Francisco, CA 94109-4917
3 Telephone: (415) 308-9008
Email: nealkonami@sbcglobal.net
4
Attorney for Plaintiff, KIM KONAMI
5
6 SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
7 UNLIMITED JURISDICTION
8
KIM KONAMI, ) Case Number: CGC-15-548211
9
)
10 Plaintiff, ) [PROPOSED] ORDER
)
11 vs. ) Continued Order to Show Cause
) Re: Dismissal (CRC 3.1385)
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ARYAN DAVANI, GEORGE KONTRIDZE, )
13 DANIEL C. METZ, TAMRA VAN WYK, )
KEVIN F. DUNNELL, ANNIKA NILSEN, )
14 & DOES 1 TO 25, )
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) Department 610
Defendants. ) Date: June 11, 2019
16 ) Time: 10:30 am
)
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TO: ALL COUNSEL AND SELF-REPRESENTED LITIGANTS
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The June 11, 2019 CRC 3.1385 ORDER TO SHOW CAUSE is canceled. And a
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21 California Rules of Court, Rule 3.1385 dismissal hearing is hereby continued to and set for July
22 2, 2019 at 10:30 am in Department 610, CIVIC CENTER COURTHOUSE.
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Pursuant to California Rules of Court, Rule 3.1385 the court will dismiss this case unless
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good cause is shown as to why it should not be dismissed.
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Dated:
28 JUDGE OF THE SUPERIOR COURT
PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211)
1
Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
2
1050 Hyde Street
San Francisco, CA 94109-4917
3
Telephone: (415) 308-9008
Email: nhk111730@sbcglobal.net
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Attorney for Plaintiff,
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KIM KONAMI
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7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
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UNLIMITED JURISDICTION
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KIM KONAMI, ) Case Number: CGC-15-548211
11 )
Plaintiff, ) PROOF OF ELECTRONIC SERVICE RE:
12 ) PLAINTIFF’S RESPONSE TO OSC
vs. )
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)
14 )
ARYAN DAVANI, GEORGE KONTRIDZE, )
15 DANIEL C. METZ, TAMRA VAN WYK, )
KEVIN F. DUNNELL, ANNIKA NILSEN, ) Hearing: June 11, 2019 10:30am
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& DOES 1 TO 25, ) Department 610
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Defendants. )
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PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF’S RESPONSE TO OSC (Case No. CGC-15-548211)
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PROOF OF SERVICE
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I, Neal Konami, declare: I am over 18 years of age, employed in the City and County of
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San Francisco, and not a party to the within action; my business address is 1050 Hyde Street,
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San Francisco, California 94109-4917; that on the date referenced below I emailed:
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PLAINTIFF’S RESPONSE TO OSC
6 (Re: Kim Konami vs. Aryan Davani et al; Case No. CGC-15-548211, Superior Court of
California, County of San Francisco.)
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to the following email recipients using their valid email addresses:
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Gregory R. de la Peña, Esq.
& Kevin “Anderson” Franco, Esq.
11 One Embarcadero Center, Suite 2860
San Francisco, CA 94111-3758
12 Email: gdelapena@dlphlaw.com & afranco@dlphlaw.com
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(Attorneys for Jayne Y. Yee, Carol L. Yee, Esq., & David Shawn Yee, Esq.)
14 Frank M. Tse, Esq.
315 Montgomery St., 10th Floor
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San Francisco, CA 94104-1823
16 Email: franktse.law@gmail.com
(Attorney for Jayne Yee, Carol Yee, David “Shawn” Yee & Zelda Mgmt., Inc.)
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John F. Van De Poel, Jr., Esq.
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& Nicolet Corliss, Esq.
19 1600 S. Main St., Suite 325
Walnut Creek, CA 94596-8812
20 Email: jvandepoel@vanlevylaw.com & ncorliss@vanlevylaw.com
(Attorneys for Aryan Davani & Davani Marble, Inc.)
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22 George Kontridze
1 Saint Francis Place #2512
23 San Francisco, CA 94107-1349
Email: george.kontridze@gmail.com
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25 Daniel C. Metz
1740 Washington Street
26 San Francisco, CA 94109-3674
Email: danielmetzconsulting@gmail.com
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PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF’S RESPONSE TO OSC (Case No. CGC-15-548211)
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Kevin F. Dunnell
2 76 Parmenter Road
Hudson, MA 01749-3214
3 Email: kevinfd@urnich.edu
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5 to their valid email addresses. This Certificate of Service is executed on June 6, 2019 at San
6 Francisco, California. I certify under penalty of perjury that the foregoing is true and correct.
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10 Neal H. Konami
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PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF'S RESPONSE TO OSC (Case No. CGC-15-548211)
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3 EXHIBIT A
4 “REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION
PURSUANT TO C.C.P. § 664.6, TO ENFORCE TERMS OF SETTLEMENT
5 AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION
OF NEAL H. KONAMI; [PROPOSED] ORDER; EXHIBITS 1 & A; AND PROOF OF
6 SERVICE, E-FILED JUNE 3, 2019”
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PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211)
From: operations@rapidlegal.com
To: Nealkonami@sbcglobal.net
Subject: Order Confirmation for KIM KONAMI VS. ARYAN DAVANI ET AL, Case # CGC-15-548211
Date: Monday, June 03, 2019 6:30:13 AM
Court eFile Order Confirmation
This confirms Rapid Legal has received your Court eFiling order to eFile the following
document(s):
REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO
CCP SECTION 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT; MEMO OF
POINTS AND AUTHORITIES; DECLARATION OF NEAL H. KONAMI; [PROPOSED]
ORDER; EXHIBITS 1 AND A; AND PROOF OF SERVICE
At: Civic Center Courthouse (eFiling)
Your document(s) have been electronically transmitted to the court today (Mon, Jun 3, 2019)
and placed in the queue for review by the Clerk.
Once your eFile order has been reviewed you will receive a status update with details stating if
your documents were Accepted, Partially Accepted or Rejected by the Clerk, followed by your
conformed or received copy(s) or else rejection notice.
Should you have any questions, please contact Customer Support at 1-800-366-5445, email
operations@rapidlegal.com or you can log in and manage your cases and orders at
www.rapidlegal.com
Thank you for using Rapid Legal.
Order(s): 2749286
Billing Code: Plaintiff's Motion for Entry of Judgment Per CCP S
eFile Transaction Number(s): 100046301
This automated message is being sent by Rapid Legal, Inc. It is intended exclusively for the individuals and/or entities to which it is
addressed. This communication including any links or attachments, may contain information that is proprietary, confidential, privileged
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Contact Us Privacy PolicyTerms of Service
1 Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
2 1050 Hyde Street
San Francisco, CA 94109-4917
3 Telephone: (415) 308-9008
Email: nhk111730@sbcglobal.net
4
Attorney for Plaintiff, KIM KONAMI
5
6 SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
7 UNLIMITED JURISDICTION
8
KIM KONAMI, ) Case Number: CGC-15-548211
9
)
10 Plaintiff, ) REQUEST OF THE PARTIES FOR
) RETENTION OF COURT JURISDICTION
11 vs. ) PURSUANT TO CCP § 664.6 TO
) ENFORCE TERMS OF SETTLEMENT
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ARYAN DAVANI, GEORGE KONTRIDZE, ) AGREEMENT; MEMORANDUM OF
13 DANIEL C. METZ, TAMRA VAN WYK, ) POINTS & AUTHORITIES;
KEVIN F. DUNNELL, ANNIKA NILSEN, ) DECLARATION OF NEAL H. KONAMI;
14 & DOES 1 TO 25, ) [PROPOSED] ORDER; EXHIBITS 1 & A;
15
) AND PROOF OF SERVICE
Defendants. )
16 )
) Hearing Date: June 26, 2019 @9:30 am
17 ) Dept. 501
18
) Hon. Charles F. Haines
)
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20 On behalf of the Plaintiff, Defendants, and their Attorneys of Record, and Departments 501 and
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610:
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NOTICE IS HEREBY GIVEN that on Wednesday, June 26, 2019, at 9:30 am, or as soon
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24 thereafter as the matter can be heard in Department 501 of this Court, Plaintiff Kim Konami, on
25 behalf of herself and the settling Defendants, request the Court’s retained jurisdiction to enforce
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all of the terms contained in their final settlement agreement attached herein as “Exhibit A.”
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO
ENFORCE TERMS OF SETTLEMENT AGREEMENT
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The Request of the settling parties is based upon this notice, memorandum of points and
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authorities, declaration of Neal H. Konami, and the attached settlement agreement, with the most
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recent signature dates as of May 30, 2019. [See: attached “Exhibit A” (Para. 1., Pg. 3 of
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5 Settlement Agreement).]
6 The Real Property Court (Dept. 501) generally makes its tentative rulings by 3:00 p.m.
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the court day before the hearing, or on Tuesday, June 25, 2019. The complete text of the
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tentative ruling may be downloaded for Department 501 from the Court’s website at
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www.sfsuperior.org and clicking on the online services link, or you can telephone (415) 551-
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11 4000. If anyone does not agree with, or does not wish to “submit” to the Court’s tentative ruling,
12 they must comply with the Court’s Local Rule, cited above, and give notice promptly to the
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parties’ attorneys by telephone, but no later than 4 p.m. the day before the hearing unless the
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tentative ruling has specified that a hearing is required.
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DATED: June 3, 2019 /s/ Neal H. Konami, Esq.
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Neal H. Konami, Esq. (SBN 111730)
19 Attorney for PLAINTIFF, Kim Konami
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO
ENFORCE TERMS OF SETTLEMENT AGREEMENT
1 Memorandum of Points and Authorities
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I. Background
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Following a Mandatory Settlement Conference before Commissioner Pang V. Ly on
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November 20, 2018, the Parties entered into a verbal and written § 664.6 settlement agreement,
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which included their request that the Court retain its jurisdiction to enforce the terms of their
7 settlement. However, it was also agreed that Defendants’ counsel would be responsible for the
8 drafting of a “final” settlement agreement by November 30, 2018. After months of negotiation
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and counter-drafting, the settling parties and their counsel have finally executed the
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“CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE”
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12 attached to, and incorporated into the [Proposed] Order as “Exhibit A” (“Agreement”). On Page
13 3, Paragraph 1. of the Agreement, the settling parties “stipulate that the Court shall retained
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jurisdiction, after a Request for Dismissal with Prejudice has been filed, to specifically enforce
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this settlement AGREEMENT pursuant to Code of Civil Procedure § 664.6.”
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Plaintiff now files the Request of the Parties for the Court’s Order retaining its
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18 jurisdiction to enforce the terms of their Agreement, and before Plaintiff voluntarily dismisses
19 her entire lawsuit with prejudice.
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Argument
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In order for the Court to enforce the terms of the Parties’ C.C.P. § 664.6 Agreement, they
22 must affirmatively file their “Request” for the Court’s retained jurisdiction and a Proposed
Order before Plaintiff voluntarily dismisses her entire lawsuit with prejudice.
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A motion for entry of judgment pursuant to § 664.6 can only be filed while the lawsuit is
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still pending. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206; Wackeen v. Malis
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26 (2002) 97 Cal.App.4th 429,433; Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004,
27 1008, 1010. The controlling case decision is Sayta v. Chu (2017) 17 Cal.App.5th 960, 962, 966,
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO
ENFORCE TERMS OF SETTLEMENT AGREEMENT
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& 967-968, with the lesson for litigators post-settlement being that “although section 664.6
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provides a valuable tool in aid of enforcing settlements, it does not float in the ether to be drawn
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upon whenever a party seeks enforcement.” (Sayta, supra at 967, citing Hagan Engineering, Inc.
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5 v. Mills (2003) 115 Cal.App.4th 1004, 1010; Wackeen v. Malis (2002) 97 Cal.App.4th 429, 441;
6 and DeSaulles v. Community Hospital of Monterrey Peninsula (2016) 62 Cal.4th 1140, 1155-
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1156.)
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Thus, when a CCP § 664.6 settlement agreement includes a voluntary dismissal of the
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lawsuit, then at least one of the parties must affirmatively “request” that the trial court retain its
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11 subject matter jurisdiction, and necessarily before the Plaintiff’s voluntary dismissal with
12 prejudice deprives the Court of any jurisdiction over the case whatsoever. (See: Weil & Brown,
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Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12.982, pp. 12(II)-
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134 to 12(II)-135 [a “court loses subject matter jurisdiction when an action is voluntarily
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dismissed[;] … it [thereafter] has no power to enforce a settlement” (italics added)].) (See also:
17 Mesa RHF Partners, L.P. v. City of Los Angeles, et al. (Filed March 29, 2019, B288355 &
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B288356) ___ Cal.App.2nd ___ [19 C.D.O.S. 3029, 3031, & “Footnote 3”])
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Conclusion
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For all of the above reasons, the Court should grant the Request of the Parties for the
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22 Court’s retained jurisdiction to enforce the terms of their Agreement pursuant to C.C.P. § 664.6,
23 and after Plaintiff voluntary dismisses her entire lawsuit with prejudice.
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DATED: June 3, 2019 /s/ Neal H. Konami, Esq.
26 Neal H. Konami, Esq. (SBN 111730)
Attorney for PLAINTIFF, Kim Konami
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO
ENFORCE TERMS OF SETTLEMENT AGREEMENT
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Declaration of Neal H. Konami
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I, Neal H. Konami, Esq. am the sole attorney for Plaintiff Kim Konami in this lawsuit,
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and I declare the following in support of this joint request for the Court' s retained jurisdiction
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pursuant to CCP Section 664.6:
6 1. The "CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL
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RELEASE" ("Agreement") attached as "Exhibit A" is the result of intensive "final" settlement
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negotiations and drafting initiated after the Mandatory Settlement Conference on November 20,
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2018, conducted by Commissioner Pang V. Ly. I have reviewed the Agreement to confirm that
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11 it has been properly executed by all of the Parties, as well as their respective counsel;
12 2. I have also confirmed with Defendants' counsel I am the one responsible for drafting,
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filing, noticing, and appearance at the hearing on June 26, 2019. And per the terms of the
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Agreement, I will be filing the Plaintiff's Request for Dismissal with Prejudice as soon as the
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Court enters its Order retaining its jurisdiction post-dismissal.
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17 6. I hereby file the Request of the Parties for the Court' s retained jurisdiction to enforce the
18 settlement terms contained within their§ 664.6 Agreement duly executed by all of the Parties
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct, and to the best of my knowledge and belief
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Dated: June 3, 2019
Neal H. Konami, Esq. (SBN 111730)
26 Attorney for Plaintiff, Kim Konami
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 T
ENFORCE TERMS OF SETTLEMENT AGREEMENT
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EXHIBIT 1
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[PROPOSED] ORDER
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[TWO (2) PAGES TOTAL]
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO
C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT
Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
1050 Hyde Street
San Francisco, CA 94109-4917
Telephone: (415) 308-9008
Email: nealkonami@sbcglobal.net
Attorney for Plaintiff, KIM KONAMI
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
KIM KONAMI, ) Case Number: CGC-15-548211
)
Plaintiff, ) [PROPOSED] ORDER
)
vs. )
)
ARYAN DAVANI, GEORGE KONTRIDZE, )
DANIEL C. METZ, TAMRA VAN WYK, )
KEVIN F. DUNNELL, ANNIKA NILSEN, )
& DOES 1 TO 25, ) Dept.: 501
) Judge: Hon. Charles F. Haines
Defendants. )
)
)
WHEREAS, the Parties have agreed upon and stipulated to their Request that the Court
retain its jurisdiction over the Parties to enforce all of the terms of their settlement agreement,
and without this Order constituting any evidence against, or any admission by any party
regarding any such issue of fact or law;
AND WHEREAS, the Parties agree to continue to be bound by the terms of their
settlement agreement;
NOW THEREFORE, before any testimony was taken, and without trial or adjudication
of any issue of fact or law, and upon consideration of their “Settlement Agreement” pursuant to
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"EXHIBIT 1"
CCP § 664.6, dated November 20, 2018, duly executed by all of the Parties, filed herein, and
good cause appearing, it is ORDERED, ADJUDGED AND DECREED:
1. “Settlement Agreement” refers to the document attached hereto as “Exhibit A.”
2. The Parties by and through their respective attorneys have stipulated to their request for
the Court’s retained jurisdiction to enforce this Order, which incorporates by reference all of the
terms of their Settlement Agreement, which is enforceable as against the settling Parties, and
incorporated by reference into this Order.
3. The Parties have settled without a trial or adjudication of any issues of fact or law. This
Order shall not constitute any evidence in favor of, any admission by, or any estoppels by a third
party against any Party to the Settlement Agreement regarding any issue of fact or law. This
Order represents an agreed upon resolution of all disputed claims in order to avoid protracted and
expensive litigation, consistent with the public policy underlying C.C.P. § 664.6.
4. The Court hereby retains its jurisdiction over this settlement and to enforce compliance
with this Order. The Parties may apply to this Court at any time for further orders and directions
as may be necessary or appropriate to carry out or construe this Order, including enforcement of
compliance and punishment for violations of any of its provisions.
Dated:
HON. CHARLES F. HAINES
JUDGE OF THE SUPERIOR COURT
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"EXHIBIT 1"
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4 “CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE”
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REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO
C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT
"EXHIBIT A"
"EXHIBIT A"
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Neal H. Konami, Esq. (SBN 111730)
Attorney at Law
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1050 Hyde Street
San Francisco, CA 94109-4917
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Telephone: (415) 308-9008
Email: nhk111730@sbcglobal.net
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Attorney for Plaintiff,
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KIM KONAMI
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
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UNLIMITED JURISDICTION
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KIM KONAMI, ) Case Number: CGC-15-548211
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Plaintiff, ) PROOF OF ELECTRONIC SERVICE RE:
12 ) REQUEST OF THE PARTIES FOR
vs. ) RETENTION OF COURT JURISDICTION
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) PURSUANT TO C.C.P. SECTION 664.6
14 ) TO ENFORCE TERMS OF SETTLEMENT
ARYAN DAVANI, GEORGE KONTRIDZE, ) AGREEMENT; MEMORANDUM OF
15 DANIEL C. METZ, TAMRA VAN WYK, ) POINTS & AUTHORITIES;
KEVIN F. DUNNELL, ANNIKA NILSEN, ) DECLARATION OF NEAL H. KONAMI;
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& DOES 1 TO 25, ) [PROPOSED] ORDER; ATTACHED
17 ) EXHIBITS “1” & “A”
Defendants. )
18 )
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) Hearing: June 26, 2019 @9:30am
) Department 501
20 ) Hon. Charles F. Haines
)
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PROOF OF ELECTRONIC SERVICE RE: REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION
PURSUANT TO C.C.P. SECTIONS 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT, MEMORANDUM OF POINTS
& AUTHORITIES, DECLARATION OF NEAL H. KONAMI, [PROPOSED] ORDER, ATTACHED EXHIBITS “1” & “A”
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PROOF OF SERVICE
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I, Neal Konami, declare: I am over 18 years of age, employed in the City and County of
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San Francisco, and not a party to the within action; my business address is 1050 Hyde Street,
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San Francisco, California 94109-4917; that on the date referenced below I either emailed and/or
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deposited in the United States mails, in an envelope bearing the requisite postage, copies of:
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REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION
7 PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT
AGREEMENT; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF
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NEAL H. KONAMI;[PROPOSED] ORDER, EXHIBITS “1” & “A”
9 (Re: Kim Konami vs. Aryan Davani et al; Case No. CGC-15-548211, Superior Court of
California, County of San Francisco.)
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addressed to:
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Gregory R. de la Peña, Esq.
13 & Kevin “Anderson” Franco, Esq.
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One Embarcadero Center, Suite 2860
San Francisco, CA 94111-3758
15 Email: gdelapena@dlphlaw.com & afranco@dlphlaw.com
(Attorneys for Jayne Y. Yee, Carol L. Yee, Esq., & David Shawn Yee, Esq.)
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17 Frank M. Tse, Esq.
315 Montgomery St., 10th Floor
18 San Francisco, CA 94104-1823
Email: franktse.law@gmail.com
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(Attorney for Jayne Yee, Carol Yee, David “Shawn” Yee & Zelda Mgmt., Inc.)
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John F. Van De Poel, Jr., Esq.
21 & Nicolet Corliss, Esq.
1600 S. Main St., Suite 325
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Walnut Creek, CA 94596-8812
23 Email: jvandepoel@vanlevylaw.com & ncorliss@vanlevylaw.com
(Attorneys for Aryan Davani & Davani Marble, Inc.)
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George Kontridze
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1 Saint Francis Place #2512
26 San Francisco, CA 94107-1349
Email: george.kon
Preview
1 Neal H. Konami, Esq. (SBN 111730) Attorney at Law 2 1050 Hyde Street ELECTRONICALLY San Francisco, CA 94109-4917 F I L E D 3 Telephone: (415) 308-9008 Superior Court of California, Email: nhk111730@sbcglobal.net County of San Francisco 4 06/06/2019 Attorney for Plaintiff, KIM KONAMI Clerk of the Court 5 BY: GINA GONZALES Deputy Clerk 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 7 UNLIMITED JURISDICTION 8 KIM KONAMI, ) Case Number: CGC-15-548211 9 ) 10 Plaintiff, ) PLAINTIFF’S RESPONSE TO OSC; ) DECLARATION OF NEAL KONAMI; 11 vs. ) [PROPOSED] ORDER; EXHBIT A; ) AND PROOF OF SERVICE 12 ARYAN DAVANI, GEORGE KONTRIDZE, ) 13 DANIEL C. METZ, TAMRA VAN WYK, ) Date: June 11, 2019 @10:30 am KEVIN F. DUNNELL, ANNIKA NILSEN, ) Dept.: 610 14 & DOES 1 TO 25, ) 15 ) Action Filed: September 30, 2015 Defendants. ) Mandatory Settlement Conf.: 11/20/18 16 ) Trial Date: December 3, 2019 ) 17 18 Plaintiff, KIM KONAMI, on behalf of the Settling Parties submits the following response 19 to the Court’s Order to Show Cause RE Dismissal of the above-entitled action. 20 21 On June 3, 2019, Plaintiff’s attorney e-filed and served the attached “Request of the 22 Parties for Retention of Court Jurisdiction Pursuant to C.C.P. Section 664.6 to Enforce Terms of 23 Settlement Agreement; Memorandum of Points and Authorities; Declaration of Neal H. Konami; 24 [Proposed] Order; Exhibits 1 and A; and Proof of Service.” (See: “EXHIBIT A”) 25 Since that time, Plaintiff’s attorney has closely monitored the Court’s website and the lawsuit’s 26 27 Register of Actions to confirm the filing and calendaring of the Request. He also made 28 -1- PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211) 1 telephone and email inquiries to the Court’s E-Filing Hotline, as well as to e-filing service 2 provider, RAPID LEGAL. As of 4:28 PM this afternoon, Plaintiff’s attorney received an email 3 and voicemail message from Rapid Legal’s customer service manager saying their records still 4 5 show Plaintiff’s e-filed Request as “in process,” or “still currently pending in the court’s queue to 6 be reviewed.” 7 Given this unexpected processing delay, Plaintiff, on behalf of the Parties, respectfully 8 objects to the Court’s dismissal of the instant action on June 11, 2019, and requests a 21-day 9 extension of time or until July 2, 2019, for Plaintiff’s attorney to confirm the Court’s review and 10 11 acceptance of the Parties’ e-filed Request for the Court’s retained jurisdiction to enforce the 12 terms of their settlement agreement pursuant to C.C.P. § 664.6, pre-dismissal by Plaintiff of her 13 entire lawsuit with prejudice. 14 15 16 17 DATED: June 6, 2019 /s/ Neal H. Konami, Esq. 18 Neal H. Konami, Esq. (SBN 111730) 19 Attorney for PLAINTIFF, Kim Konami 20 21 22 23 24 25 26 27 28 -2- PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211) 1 Declaration of Neal H. Konami in Support of Response to OSC RE Dismissal 2 1. I, Neal H. Konami, Esq., am the sole attorney for Plaintiff Kim Konami in this lawsuit, 3 and I declare the following in support of the Plaintiff’s, and the Settling Parties’, request for a 4 5 30-day extension of time for the Court’s processing of the Parties’ Request for the Court’s 6 retained jurisdiction pursuant to CCP Section 664.6, which was e-filed with the Court and served 7 on June 3, 2019; 8 2. On June 3, 2019, I e-filed and served the attached “Request of the Parties for Retention of 9 Court Jurisdiction Pursuant to C.C.P. Section 664.6 to Enforce Terms of Settlement Agreement; 10 11 Memorandum of Points and Authorities; Declaration of Neal H. Konami; [Proposed] Order; 12 Exhibits 1 and A; and Proof of Service.” I have closely monitored the Court’s website and the 13 lawsuit Register of Actions since June 3, 2019. I have made telephone and email inquiries to the 14 Court’s E-Filing Hotline, as well as to my e-filing service provider, RAPID LEGAL. And only 15 as of 4:28 PM this afternoon did I learn from Rapid Legal’s customer service manager that their 16 17 records show Plaintiff’s e-filed Request transmitted to the Court the morning of June 3, 2019, to 18 still be “in process,” or “still currently pending in the court’s queue to be reviewed.” 19 3. Given this unexpected processing delay, Plaintiff respectfully objects to dismissal of the 20 instant action on June 11, 2019, and requests a 21-day extension of time, or until July 2, 2019, 21 22 for Plaintiff’s attorney to confirm the filing, processing, acceptance, and calendaring of the 23 Parties’ Request for the Court’s retained jurisdiction pursuant to C.C.P. § 664.6 to enforce the 24 terms of their settlement agreement, which was fully negotiated and duly executed by all of the 25 Settling Parties and their attorneys of record. 26 4. And once the Court orders its retained jurisdiction to enforce the settlement agreement, I 27 28 -3- PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211) 1 will file the Plaintiffs agreed upon Request for Voluntary Dismissal of her entire lawsuit as soon 2 as possible. 3 4 I declare under penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct, and to the best of my knowledge and belief 6 7 10 8 9 Dated: June 6, 2019 Ne~l730) Attorney for Plaintiff, Kim Konami 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- PLAINTIFF ' S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-1 5-548211) 1 Neal H. Konami, Esq. (SBN 111730) Attorney at Law 2 1050 Hyde Street San Francisco, CA 94109-4917 3 Telephone: (415) 308-9008 Email: nealkonami@sbcglobal.net 4 Attorney for Plaintiff, KIM KONAMI 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 7 UNLIMITED JURISDICTION 8 KIM KONAMI, ) Case Number: CGC-15-548211 9 ) 10 Plaintiff, ) [PROPOSED] ORDER ) 11 vs. ) Continued Order to Show Cause ) Re: Dismissal (CRC 3.1385) 12 ARYAN DAVANI, GEORGE KONTRIDZE, ) 13 DANIEL C. METZ, TAMRA VAN WYK, ) KEVIN F. DUNNELL, ANNIKA NILSEN, ) 14 & DOES 1 TO 25, ) 15 ) Department 610 Defendants. ) Date: June 11, 2019 16 ) Time: 10:30 am ) 17 18 TO: ALL COUNSEL AND SELF-REPRESENTED LITIGANTS 19 The June 11, 2019 CRC 3.1385 ORDER TO SHOW CAUSE is canceled. And a 20 21 California Rules of Court, Rule 3.1385 dismissal hearing is hereby continued to and set for July 22 2, 2019 at 10:30 am in Department 610, CIVIC CENTER COURTHOUSE. 23 Pursuant to California Rules of Court, Rule 3.1385 the court will dismiss this case unless 24 good cause is shown as to why it should not be dismissed. 25 26 27 Dated: 28 JUDGE OF THE SUPERIOR COURT PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211) 1 Neal H. Konami, Esq. (SBN 111730) Attorney at Law 2 1050 Hyde Street San Francisco, CA 94109-4917 3 Telephone: (415) 308-9008 Email: nhk111730@sbcglobal.net 4 Attorney for Plaintiff, 5 KIM KONAMI 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 8 UNLIMITED JURISDICTION 9 10 KIM KONAMI, ) Case Number: CGC-15-548211 11 ) Plaintiff, ) PROOF OF ELECTRONIC SERVICE RE: 12 ) PLAINTIFF’S RESPONSE TO OSC vs. ) 13 ) 14 ) ARYAN DAVANI, GEORGE KONTRIDZE, ) 15 DANIEL C. METZ, TAMRA VAN WYK, ) KEVIN F. DUNNELL, ANNIKA NILSEN, ) Hearing: June 11, 2019 10:30am 16 & DOES 1 TO 25, ) Department 610 17 ) Defendants. ) 18 ) 19 20 21 22 23 24 25 26 27 28 -1- PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF’S RESPONSE TO OSC (Case No. CGC-15-548211) 1 PROOF OF SERVICE 2 I, Neal Konami, declare: I am over 18 years of age, employed in the City and County of 3 San Francisco, and not a party to the within action; my business address is 1050 Hyde Street, 4 San Francisco, California 94109-4917; that on the date referenced below I emailed: 5 PLAINTIFF’S RESPONSE TO OSC 6 (Re: Kim Konami vs. Aryan Davani et al; Case No. CGC-15-548211, Superior Court of California, County of San Francisco.) 7 8 to the following email recipients using their valid email addresses: 9 10 Gregory R. de la Peña, Esq. & Kevin “Anderson” Franco, Esq. 11 One Embarcadero Center, Suite 2860 San Francisco, CA 94111-3758 12 Email: gdelapena@dlphlaw.com & afranco@dlphlaw.com 13 (Attorneys for Jayne Y. Yee, Carol L. Yee, Esq., & David Shawn Yee, Esq.) 14 Frank M. Tse, Esq. 315 Montgomery St., 10th Floor 15 San Francisco, CA 94104-1823 16 Email: franktse.law@gmail.com (Attorney for Jayne Yee, Carol Yee, David “Shawn” Yee & Zelda Mgmt., Inc.) 17 John F. Van De Poel, Jr., Esq. 18 & Nicolet Corliss, Esq. 19 1600 S. Main St., Suite 325 Walnut Creek, CA 94596-8812 20 Email: jvandepoel@vanlevylaw.com & ncorliss@vanlevylaw.com (Attorneys for Aryan Davani & Davani Marble, Inc.) 21 22 George Kontridze 1 Saint Francis Place #2512 23 San Francisco, CA 94107-1349 Email: george.kontridze@gmail.com 24 25 Daniel C. Metz 1740 Washington Street 26 San Francisco, CA 94109-3674 Email: danielmetzconsulting@gmail.com 27 28 -2- PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF’S RESPONSE TO OSC (Case No. CGC-15-548211) 1 Kevin F. Dunnell 2 76 Parmenter Road Hudson, MA 01749-3214 3 Email: kevinfd@urnich.edu 4 5 to their valid email addresses. This Certificate of Service is executed on June 6, 2019 at San 6 Francisco, California. I certify under penalty of perjury that the foregoing is true and correct. 7 8 9 10 Neal H. Konami 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- PROOF OF ELECTRONIC SERVICE RE: PLAINTIFF'S RESPONSE TO OSC (Case No. CGC-15-548211) 1 2 3 EXHIBIT A 4 “REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6, TO ENFORCE TERMS OF SETTLEMENT 5 AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NEAL H. KONAMI; [PROPOSED] ORDER; EXHIBITS 1 & A; AND PROOF OF 6 SERVICE, E-FILED JUNE 3, 2019” 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO OSC RE DISMISSAL (Case No. CGC-15-548211) From: operations@rapidlegal.com To: Nealkonami@sbcglobal.net Subject: Order Confirmation for KIM KONAMI VS. ARYAN DAVANI ET AL, Case # CGC-15-548211 Date: Monday, June 03, 2019 6:30:13 AM Court eFile Order Confirmation This confirms Rapid Legal has received your Court eFiling order to eFile the following document(s): REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO CCP SECTION 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT; MEMO OF POINTS AND AUTHORITIES; DECLARATION OF NEAL H. KONAMI; [PROPOSED] ORDER; EXHIBITS 1 AND A; AND PROOF OF SERVICE At: Civic Center Courthouse (eFiling) Your document(s) have been electronically transmitted to the court today (Mon, Jun 3, 2019) and placed in the queue for review by the Clerk. Once your eFile order has been reviewed you will receive a status update with details stating if your documents were Accepted, Partially Accepted or Rejected by the Clerk, followed by your conformed or received copy(s) or else rejection notice. Should you have any questions, please contact Customer Support at 1-800-366-5445, email operations@rapidlegal.com or you can log in and manage your cases and orders at www.rapidlegal.com Thank you for using Rapid Legal. Order(s): 2749286 Billing Code: Plaintiff's Motion for Entry of Judgment Per CCP S eFile Transaction Number(s): 100046301 This automated message is being sent by Rapid Legal, Inc. It is intended exclusively for the individuals and/or entities to which it is addressed. This communication including any links or attachments, may contain information that is proprietary, confidential, privileged or otherwise exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate any part of this message, or any part of any links or attachments thereto. If you have received this message in error, please notify the sender immediately by email and delete all copies of the message and attachments from your records. © 2019 Rapid Legal Inc. All Rights Reserved. 15345 Fairfield Ranch Road, Suite 200, Chino Hills, CA 91709 Contact Us Privacy PolicyTerms of Service 1 Neal H. Konami, Esq. (SBN 111730) Attorney at Law 2 1050 Hyde Street San Francisco, CA 94109-4917 3 Telephone: (415) 308-9008 Email: nhk111730@sbcglobal.net 4 Attorney for Plaintiff, KIM KONAMI 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 7 UNLIMITED JURISDICTION 8 KIM KONAMI, ) Case Number: CGC-15-548211 9 ) 10 Plaintiff, ) REQUEST OF THE PARTIES FOR ) RETENTION OF COURT JURISDICTION 11 vs. ) PURSUANT TO CCP § 664.6 TO ) ENFORCE TERMS OF SETTLEMENT 12 ARYAN DAVANI, GEORGE KONTRIDZE, ) AGREEMENT; MEMORANDUM OF 13 DANIEL C. METZ, TAMRA VAN WYK, ) POINTS & AUTHORITIES; KEVIN F. DUNNELL, ANNIKA NILSEN, ) DECLARATION OF NEAL H. KONAMI; 14 & DOES 1 TO 25, ) [PROPOSED] ORDER; EXHIBITS 1 & A; 15 ) AND PROOF OF SERVICE Defendants. ) 16 ) ) Hearing Date: June 26, 2019 @9:30 am 17 ) Dept. 501 18 ) Hon. Charles F. Haines ) 19 20 On behalf of the Plaintiff, Defendants, and their Attorneys of Record, and Departments 501 and 21 610: 22 NOTICE IS HEREBY GIVEN that on Wednesday, June 26, 2019, at 9:30 am, or as soon 23 24 thereafter as the matter can be heard in Department 501 of this Court, Plaintiff Kim Konami, on 25 behalf of herself and the settling Defendants, request the Court’s retained jurisdiction to enforce 26 all of the terms contained in their final settlement agreement attached herein as “Exhibit A.” 27 -1- 28 REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT 1 The Request of the settling parties is based upon this notice, memorandum of points and 2 authorities, declaration of Neal H. Konami, and the attached settlement agreement, with the most 3 recent signature dates as of May 30, 2019. [See: attached “Exhibit A” (Para. 1., Pg. 3 of 4 5 Settlement Agreement).] 6 The Real Property Court (Dept. 501) generally makes its tentative rulings by 3:00 p.m. 7 the court day before the hearing, or on Tuesday, June 25, 2019. The complete text of the 8 tentative ruling may be downloaded for Department 501 from the Court’s website at 9 www.sfsuperior.org and clicking on the online services link, or you can telephone (415) 551- 10 11 4000. If anyone does not agree with, or does not wish to “submit” to the Court’s tentative ruling, 12 they must comply with the Court’s Local Rule, cited above, and give notice promptly to the 13 parties’ attorneys by telephone, but no later than 4 p.m. the day before the hearing unless the 14 tentative ruling has specified that a hearing is required. 15 16 17 DATED: June 3, 2019 /s/ Neal H. Konami, Esq. 18 Neal H. Konami, Esq. (SBN 111730) 19 Attorney for PLAINTIFF, Kim Konami 20 21 22 23 24 25 26 27 28 -2- REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT 1 Memorandum of Points and Authorities 2 I. Background 3 Following a Mandatory Settlement Conference before Commissioner Pang V. Ly on 4 November 20, 2018, the Parties entered into a verbal and written § 664.6 settlement agreement, 5 6 which included their request that the Court retain its jurisdiction to enforce the terms of their 7 settlement. However, it was also agreed that Defendants’ counsel would be responsible for the 8 drafting of a “final” settlement agreement by November 30, 2018. After months of negotiation 9 and counter-drafting, the settling parties and their counsel have finally executed the 10 “CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE” 11 12 attached to, and incorporated into the [Proposed] Order as “Exhibit A” (“Agreement”). On Page 13 3, Paragraph 1. of the Agreement, the settling parties “stipulate that the Court shall retained 14 jurisdiction, after a Request for Dismissal with Prejudice has been filed, to specifically enforce 15 this settlement AGREEMENT pursuant to Code of Civil Procedure § 664.6.” 16 Plaintiff now files the Request of the Parties for the Court’s Order retaining its 17 18 jurisdiction to enforce the terms of their Agreement, and before Plaintiff voluntarily dismisses 19 her entire lawsuit with prejudice. 20 Argument 21 In order for the Court to enforce the terms of the Parties’ C.C.P. § 664.6 Agreement, they 22 must affirmatively file their “Request” for the Court’s retained jurisdiction and a Proposed Order before Plaintiff voluntarily dismisses her entire lawsuit with prejudice. 23 A motion for entry of judgment pursuant to § 664.6 can only be filed while the lawsuit is 24 still pending. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206; Wackeen v. Malis 25 26 (2002) 97 Cal.App.4th 429,433; Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 27 1008, 1010. The controlling case decision is Sayta v. Chu (2017) 17 Cal.App.5th 960, 962, 966, 28 -3- REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT 1 & 967-968, with the lesson for litigators post-settlement being that “although section 664.6 2 provides a valuable tool in aid of enforcing settlements, it does not float in the ether to be drawn 3 upon whenever a party seeks enforcement.” (Sayta, supra at 967, citing Hagan Engineering, Inc. 4 5 v. Mills (2003) 115 Cal.App.4th 1004, 1010; Wackeen v. Malis (2002) 97 Cal.App.4th 429, 441; 6 and DeSaulles v. Community Hospital of Monterrey Peninsula (2016) 62 Cal.4th 1140, 1155- 7 1156.) 8 Thus, when a CCP § 664.6 settlement agreement includes a voluntary dismissal of the 9 lawsuit, then at least one of the parties must affirmatively “request” that the trial court retain its 10 11 subject matter jurisdiction, and necessarily before the Plaintiff’s voluntary dismissal with 12 prejudice deprives the Court of any jurisdiction over the case whatsoever. (See: Weil & Brown, 13 Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12.982, pp. 12(II)- 14 134 to 12(II)-135 [a “court loses subject matter jurisdiction when an action is voluntarily 15 16 dismissed[;] … it [thereafter] has no power to enforce a settlement” (italics added)].) (See also: 17 Mesa RHF Partners, L.P. v. City of Los Angeles, et al. (Filed March 29, 2019, B288355 & 18 B288356) ___ Cal.App.2nd ___ [19 C.D.O.S. 3029, 3031, & “Footnote 3”]) 19 Conclusion 20 For all of the above reasons, the Court should grant the Request of the Parties for the 21 22 Court’s retained jurisdiction to enforce the terms of their Agreement pursuant to C.C.P. § 664.6, 23 and after Plaintiff voluntary dismisses her entire lawsuit with prejudice. 24 25 DATED: June 3, 2019 /s/ Neal H. Konami, Esq. 26 Neal H. Konami, Esq. (SBN 111730) Attorney for PLAINTIFF, Kim Konami 27 28 -4- REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT 1 Declaration of Neal H. Konami 2 I, Neal H. Konami, Esq. am the sole attorney for Plaintiff Kim Konami in this lawsuit, 3 and I declare the following in support of this joint request for the Court' s retained jurisdiction 4 5 pursuant to CCP Section 664.6: 6 1. The "CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL 7 RELEASE" ("Agreement") attached as "Exhibit A" is the result of intensive "final" settlement 8 negotiations and drafting initiated after the Mandatory Settlement Conference on November 20, 9 2018, conducted by Commissioner Pang V. Ly. I have reviewed the Agreement to confirm that 10 11 it has been properly executed by all of the Parties, as well as their respective counsel; 12 2. I have also confirmed with Defendants' counsel I am the one responsible for drafting, 13 filing, noticing, and appearance at the hearing on June 26, 2019. And per the terms of the 14 Agreement, I will be filing the Plaintiff's Request for Dismissal with Prejudice as soon as the 15 Court enters its Order retaining its jurisdiction post-dismissal. 16 17 6. I hereby file the Request of the Parties for the Court' s retained jurisdiction to enforce the 18 settlement terms contained within their§ 664.6 Agreement duly executed by all of the Parties 19 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct, and to the best of my knowledge and belief 22 23 24 25 Dated: June 3, 2019 Neal H. Konami, Esq. (SBN 111730) 26 Attorney for Plaintiff, Kim Konami 27 28 -5- REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 T ENFORCE TERMS OF SETTLEMENT AGREEMENT 1 2 3 EXHIBIT 1 4 [PROPOSED] ORDER 5 [TWO (2) PAGES TOTAL] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT Neal H. Konami, Esq. (SBN 111730) Attorney at Law 1050 Hyde Street San Francisco, CA 94109-4917 Telephone: (415) 308-9008 Email: nealkonami@sbcglobal.net Attorney for Plaintiff, KIM KONAMI SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION KIM KONAMI, ) Case Number: CGC-15-548211 ) Plaintiff, ) [PROPOSED] ORDER ) vs. ) ) ARYAN DAVANI, GEORGE KONTRIDZE, ) DANIEL C. METZ, TAMRA VAN WYK, ) KEVIN F. DUNNELL, ANNIKA NILSEN, ) & DOES 1 TO 25, ) Dept.: 501 ) Judge: Hon. Charles F. Haines Defendants. ) ) ) WHEREAS, the Parties have agreed upon and stipulated to their Request that the Court retain its jurisdiction over the Parties to enforce all of the terms of their settlement agreement, and without this Order constituting any evidence against, or any admission by any party regarding any such issue of fact or law; AND WHEREAS, the Parties agree to continue to be bound by the terms of their settlement agreement; NOW THEREFORE, before any testimony was taken, and without trial or adjudication of any issue of fact or law, and upon consideration of their “Settlement Agreement” pursuant to -1- "EXHIBIT 1" CCP § 664.6, dated November 20, 2018, duly executed by all of the Parties, filed herein, and good cause appearing, it is ORDERED, ADJUDGED AND DECREED: 1. “Settlement Agreement” refers to the document attached hereto as “Exhibit A.” 2. The Parties by and through their respective attorneys have stipulated to their request for the Court’s retained jurisdiction to enforce this Order, which incorporates by reference all of the terms of their Settlement Agreement, which is enforceable as against the settling Parties, and incorporated by reference into this Order. 3. The Parties have settled without a trial or adjudication of any issues of fact or law. This Order shall not constitute any evidence in favor of, any admission by, or any estoppels by a third party against any Party to the Settlement Agreement regarding any issue of fact or law. This Order represents an agreed upon resolution of all disputed claims in order to avoid protracted and expensive litigation, consistent with the public policy underlying C.C.P. § 664.6. 4. The Court hereby retains its jurisdiction over this settlement and to enforce compliance with this Order. The Parties may apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Order, including enforcement of compliance and punishment for violations of any of its provisions. Dated: HON. CHARLES F. HAINES JUDGE OF THE SUPERIOR COURT -2- "EXHIBIT 1" 1 2 3 EXHIBIT A 4 “CONFIDENTIAL FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE” 5 [THIRTEEN (13) PAGES TOTAL] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST OF PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" "EXHIBIT A" 1 Neal H. Konami, Esq. (SBN 111730) Attorney at Law 2 1050 Hyde Street San Francisco, CA 94109-4917 3 Telephone: (415) 308-9008 Email: nhk111730@sbcglobal.net 4 Attorney for Plaintiff, 5 KIM KONAMI 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 8 UNLIMITED JURISDICTION 9 10 KIM KONAMI, ) Case Number: CGC-15-548211 11 ) Plaintiff, ) PROOF OF ELECTRONIC SERVICE RE: 12 ) REQUEST OF THE PARTIES FOR vs. ) RETENTION OF COURT JURISDICTION 13 ) PURSUANT TO C.C.P. SECTION 664.6 14 ) TO ENFORCE TERMS OF SETTLEMENT ARYAN DAVANI, GEORGE KONTRIDZE, ) AGREEMENT; MEMORANDUM OF 15 DANIEL C. METZ, TAMRA VAN WYK, ) POINTS & AUTHORITIES; KEVIN F. DUNNELL, ANNIKA NILSEN, ) DECLARATION OF NEAL H. KONAMI; 16 & DOES 1 TO 25, ) [PROPOSED] ORDER; ATTACHED 17 ) EXHIBITS “1” & “A” Defendants. ) 18 ) 19 ) Hearing: June 26, 2019 @9:30am ) Department 501 20 ) Hon. Charles F. Haines ) 21 22 23 24 25 26 27 28 -1- PROOF OF ELECTRONIC SERVICE RE: REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION PURSUANT TO C.C.P. SECTIONS 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT, MEMORANDUM OF POINTS & AUTHORITIES, DECLARATION OF NEAL H. KONAMI, [PROPOSED] ORDER, ATTACHED EXHIBITS “1” & “A” 1 PROOF OF SERVICE 2 I, Neal Konami, declare: I am over 18 years of age, employed in the City and County of 3 San Francisco, and not a party to the within action; my business address is 1050 Hyde Street, 4 San Francisco, California 94109-4917; that on the date referenced below I either emailed and/or 5 deposited in the United States mails, in an envelope bearing the requisite postage, copies of: 6 REQUEST OF THE PARTIES FOR RETENTION OF COURT JURISDICTION 7 PURSUANT TO C.C.P. § 664.6 TO ENFORCE TERMS OF SETTLEMENT AGREEMENT; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF 8 NEAL H. KONAMI;[PROPOSED] ORDER, EXHIBITS “1” & “A” 9 (Re: Kim Konami vs. Aryan Davani et al; Case No. CGC-15-548211, Superior Court of California, County of San Francisco.) 10 11 addressed to: 12 Gregory R. de la Peña, Esq. 13 & Kevin “Anderson” Franco, Esq. 14 One Embarcadero Center, Suite 2860 San Francisco, CA 94111-3758 15 Email: gdelapena@dlphlaw.com & afranco@dlphlaw.com (Attorneys for Jayne Y. Yee, Carol L. Yee, Esq., & David Shawn Yee, Esq.) 16 17 Frank M. Tse, Esq. 315 Montgomery St., 10th Floor 18 San Francisco, CA 94104-1823 Email: franktse.law@gmail.com 19 (Attorney for Jayne Yee, Carol Yee, David “Shawn” Yee & Zelda Mgmt., Inc.) 20 John F. Van De Poel, Jr., Esq. 21 & Nicolet Corliss, Esq. 1600 S. Main St., Suite 325 22 Walnut Creek, CA 94596-8812 23 Email: jvandepoel@vanlevylaw.com & ncorliss@vanlevylaw.com (Attorneys for Aryan Davani & Davani Marble, Inc.) 24 George Kontridze 25 1 Saint Francis Place #2512 26 San Francisco, CA 94107-1349 Email: george.kon