On 07/31/2014 TITANIUM POWER GROUP INC filed a Contract - Other Contract lawsuit against DAVID WHITFIELD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARC MARMARO. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
TITANIUM POWER GROUP INC.
R4 ENERGY GROUP INC.
DOES 1 THROUGH 100 INCLUSIVE
H.H.N. DEVELOPMENT CORP.
MARATHON FINANCIAL FACTORING SERVICES
NASH RODNEY C.
R4 ENERGY GROUP INC.
DOES 1 THROUGH 100
LAW OFFICES OF H JOSEPH NOURMAND APC
H. JOSEPH NOURMAND APC
LYLE F. GREENBERG LAW OFFICES OF
CLARKSON RILEY RUBIN LLP
DACORSI PLACENCIO PC
DACORSI PLACENCIO PC
8/26/2014: PROOF OF SERVICE OF SUMMONS
8/26/2014: PROOF OF SERVICE SUMMONS
9/17/2014: DEFENDANTS DAVID WHITFIELJ) GREGORY WIHTFIELD AND R4 ENERGY GROUP, INC.?S NOTJCE OF DEMURRER
9/17/2014: DEFENDANTS DAVID WIFITFIELD, GREGORY WHITFIELD AND R4 ENERGY GROUP, INC.?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
9/17/2014: DEFET%DANTS DAVID WHITFIELD, GREGORY WIHTFIELJ) AND K4 ENERGY GROUP, INC.?S DEMURRER
9/19/2014: DEFENDANT H.H.N. DEVELOPMENT CORP. DBA MARATHON FINANCIAL?S CROSS-COMPLAINT FOR: 1. BREACH OF WRITTEN CONTRACT; ETC
9/19/2014: DEFENDANT AND CROSS- COMPLAINANT H.H.N. DEVELOPMENT CORP. DBA MARATHON FINANCIAL?S NOTICE OF JOINDER RE: DEMURRER OF DEFENDANTS DAVID WHJTFIELD, GREGORY WHITFIELD AND R4 ENERGY GROUP, INC.
1/16/2015: DEFENDANT AND CROSS-COMPLAINANT, H.H.N. DEVELOPMENT CORP., DBA MARATHON FINANCIAL'S SUBSTITUTION OF ATTORNEY
5/6/2015: COURT'S RULING
6/5/2015: SUBSTITUTION OF ATTORNEY-CIVIL
8/18/2015: AMENDED NOTICE OF RULINGS AT CASE MANAGEMENT CONFERENCE AND OF REFERRAL OF CASE FOR COMPLETION OF MANDATORY SETTLEMENT CONFERENCE
10/6/2015: Minute Order
12/8/2015: NOTICE OF UNAVAILABILITY OF COUNSEL
3/1/2016: SUBSTITUTION OF ATTORNEY
3/15/2016: Minute Order
3/18/2016: Minute Order
3/24/2016: REQUEST FOR DISMISSAL, WITH PREJUDICE AND STIPULATION AND REQUEST THAT THE COURT RETAIN JURISDICTION OVER ALL PARTIES UNDER CCP SECTION 664.6
Order Filed by ClerkRead MoreRead Less
Request ( FOR DISMISSAL & Stip & Request to retain jurisdiction over all parties ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Partial Dismissal (with Prejudice) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Declaration (of H. Joseph Nourmand re Settlement and Trial Preparation by plaintiff ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Ex-Parte Application Filed by Defendant/RespondentRead MoreRead Less
Substitution of Attorney (for Cross-Defendant Robbie Jackson d/b/a "Our4 Energy" ) Filed by Former Attorney for Def/RespondentRead MoreRead Less
Substitution of Attorney (for Gregory Whitfield ) Filed by Former Attorney for Def/RespondentRead MoreRead Less
Substitution of Attorney (for David Whitfield ) Filed by Former Attorney for Def/RespondentRead MoreRead Less
Notice (of unavailability of atty 12-17 thru 12-31, 2015 ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Partial Dismissal (w/o Prejudice) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Cross-complaint Filed by Attorney for Deft/RespntRead MoreRead Less
Joinder Filed by Attorney for Deft/RespntRead MoreRead Less
Answer to Complaint Filed by Attorney for Deft/RespntRead MoreRead Less
Demand for Jury Trial Filed by Attorney for Deft/RespntRead MoreRead Less
Supporting Docs/ P's & A's Filed by Attorney for Deft/RespntRead MoreRead Less
Demurrer Filed by Attorney for Deft/RespntRead MoreRead Less
Request for Judicial Notice Filed by Attorney for Deft/RespntRead MoreRead Less
Notice (OF DEM. ) Filed by Attorney for Deft/RespntRead MoreRead Less
Proof-Service/Summons (X7 ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Complaint Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Case Number: BC553409 Hearing Date: March 18, 2021 Dept: 37
HEARING DATE: March 18, 2021
CASE NUMBER: BC553409
CASE NAME: Titanium Power Group Inc. v. David Whitfield, et al.
MOVING PARTY: Plaintiff, Titanium Power Group, Inc.
OPPOSING PARTIES: Defendants, David Whitfield, Gregory Whitfield and Robbie Jackson
TRIAL DATE: None – Court Ordered Dismissal March 28, 2016
PROOF OF SERVICE: OK
MOTION: Plaintiff’s Motion to Enforce Settlement
OPPOSITION: March 5, 2021
REPLY: March 10, 2021
TENTATIVE: Plaintiff’s motion is granted. Judgment will be entered against Defendants Gregory Whitfield aka Greg Whitfield, Robbie Jackson, and David Whitfield, jointly and severally, in the sum of $450,000 plus interest thereon at the legal rate of ten percent (10%) per annum from the date of entry of Judgment until Judgment is paid in full. Plaintiff is to give notice.
This action arises out of toilet retrofit service contracts (the “Contracts”) between Plaintiff, Titanium Power Group, Inc. (“Plaintiff”) and Defendants, Gregory Whitfield and David Whitfield. Plaintiff alleges that the parties agreed to enter into the Contracts in 2013 by which Defendants would solicit contracts from consumers to have low flow toilets pursuant to the rebate program offered by the Los Angeles Department of Water and Power (“DWP”) and would pay Plaintiff 100% of the rebates from the DWP. Plaintiff allegedly agreed to arrange all work for installation of toilets pursuant to the Contracts and further agreed to pay Defendants a sum for each contract solicited. After entering into the Contracts, Plaintiff alleges that it performed as agreed but that all Defendants wrongfully conspired to keep the DWP rebates for themselves, despite Plaintiff’s repeated attempts to obtain payment.
Plaintiff’s Complaint, filed July 31, 2014 alleges ten causes of action as follows: (1) breach of oral contract (2) conversion, (3) conversion, (4) money had and received, (5) fraud and deceit, (6) fraud and deceit, (7) negligent misrepresentation, (8) breach of fiduciary duty, (9) constructive trust, (10) restitution and injunctive relief.
On September 19, 2014, Defendant H.H.N. Development Corp., dba Marathon Financial (“Marathon”) filed a Cross-Complaint against Robbie Jackson (“Jackson”), individually and dba OUR4 Energy for breach of contract, breach of the implied covenant of good faith and fair dealing and indemnity and contribution.
On June 5, 2015, David Whitfield and Gregory Whitfield filed a Cross-Complaint against Plaintiff.
On October 2, 2015, Marathon filed a Notice of Settlement indicating that all disputes pursuant to Marathon have been settled pursuant to a Stipulation re: Settlement. Subsequently, Plaintiff dismissed Marathon from the Complaint without prejudice on November 6, 2015.
On March 24, 2016, Plaintiff filed a “Request for Dismissal with Prejudice and Stipulation and Request that the Court Retain Jurisdiction over all Parties under CCP 664.6” (the “RFD”) Plaintiff’s Stipulation provides as follows:
The parties request that the Complaint be dismissed with prejudice;
The parties request that the Cross-Complainant of David Whitfield, Gregory Whitfield and Jackson be dismissed with prejudice and;
The parties stipulate that the court retain jurisdiction over “Plaintiff/Cross-Defendant TITANIUM POWER GROUP, INC., a Nevada corporation, and In Pro Per Defendants/Cross-Complainants, DAVID WHITFIELD, GREGORY WHITFIELD, ROBBIE JACKSON and R4 ENERGY GROUP INC. (originally sued in the action as R4 ENERGY, an entity) for the purposes of enforcement of the terms of the settlement.”
All parties signed the Stipulation. On March 25, 2016, the court dismissed the action pursuant to the Stipulation and retained jurisdiction as requested, pursuant to Code of Civil Procedure section 664.6.
On December 28, 2020, Plaintiff’s Ex Parte Application to Vacate Conditional Dismissal and to Enforce Settlement Pursuant to C.C.P. 664.6 was denied. The court’s ruling indicated that Plaintiff was to file a properly noticed motion in order for the court to consider the relief sought.
Plaintiff refiled its Ex Parte Application as a noticed motion on February 4, 2021. The motion now comes on for hearing. David Whitfield, Gregory Whitfield and Robbie Jackson (“Defendants”) oppose the motion.
Plaintiff’s Objections to Declaration of Robbie Jackson
Objection 1: Sustained.
Plaintiff’s Objections to Declaration of Greg Whitfield
Overruled: 1-2, 4-7
Pursuant to Code of Civil Procedure, section 664.6, “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.) The court must determine whether the settlement agreement is valid and binding. (Kohn v. Jaymar-Ruby (1994) 23 Cal. App. 4th 1530, 1533.) “In order to be enforceable pursuant to the summary procedures of section 664.6, a settlement agreement must either be entered into orally before a court … or must be in writing and signed by the parties.” (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Courts will not set aside a valid settlement agreement absent fraud, undue influence, or excusable neglect. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 260; see also Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339; Fraters Glass & Paint Co. v. Southwestern Const. Co. (1930) 107 Cal.App.1, 6.)
Plaintiff contends that judgment should be entered against Defendants because Defendants have failed to make payments pursuant to the Settlement Agreement and Stipulation for Entry of Judgment (the “Stipulation”) signed by the parties on March 15, 2016. (Motion, 3; Declaration of Joseph Nourmand (“Nourmand”), Exh. A; Declaration of Yoni Ghermezi (“Ghermezi”), Exhs. 1-2.)
The Stipulation provides in pertinent part:
“IT IS HEREBY STIPULATED AND AGREED that the failure of Defendants to timely make the required payments under the Settlement Agreement shall entitle Plaintiff to seek immediate entry of a Judgment against Defendants on the terms set forth herein.
IT IS FURTHER STIPULATED AND AGREED that Judgment shall not be sought to be entered so long as Defendants timely comply with all of the terms of the Settlement Agreement. However, upon the occurrence of any default of any provision of the Settlement Agreement, Judgment shall be entered forthwith in favor of Plaintiff and against Defendants jointly and severally.
IT IS FURTHER STIPULATED AND AGREED that any Judgment obtained by Plaintiff pursuant to this Stipulation shall provide that Plaintiff is entitled to recover all attorneys’ fees and costs incurred by Plaintiff in obtaining and enforcing the same.”
(Nourmand Decl., Exh. A.)
Additionally, the Settlement Agreement provides in pertinent part as follows:
Acknowledgment of Debt Owed by the Whitfield Parties. The Whitfield Parties and each of them agree that as of the date of this Settlement Agreement and in connection with the allegations detailed in the Complaint and the Action, they are jointly and severally indebted to Titanium in the amount of Four Hundred and Fifty Thousand Dollars ($450,000) plus interest payments as detailed in section 4(iii) below. (the “Debt”)
24. Entire Agreement. This Settlement Agreement and the Stipulated Judgment constitutes the entire agreement between the Parties pertaining to the subject matter of the Settlement Agreement and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties, both oral and written. No Party is relying upon any warranties, representations, facts, definitions, or inducements not specifically set forth in this Settlement Agreement. Irrespective of the content of any previous discussions, considerations, or representations, this Settlement Agreement and the Stipulated Judgment shall control, and no other matter may be used to modify, expand, or diminish the provisions of this Settlement Agreement. This Settlement Agreement and the Stipulated Judgment may not be modified by any oral agreement, and except as stated herein, no supplement, modification, or amendment of this Settlement Agreement or the Stipulated Judgment shall be effective unless it is in a writing executed by all of the Parties. Each of the Parties further acknowledges that no other Party nor agent or attorney of any other Party has made any promise or warranty whatsoever, express or implied, not contained in this Settlement Agreement concerning the subject matter hereof in order to induce the execution of the same. Each of the Parties further acknowledges, represents and warrants that he, she or it has not executed this Settlement Agreement in reliance upon any promise, representation or warranty not contained therein.
(Ghermezi Decl., Exh. 1.) The Whitfield Parties is defined to include David Whitfield, Gregory Whitfield and Jackson. (Id., 1.) The Settlement Agreement then provides for a payment schedule for the amount owed by Defendants. Additionally, Ghermezi attests in support of the instant motion that Defendants have not made any of the required payments pursuant to the Settlement Agreement and Stipulation. (Ghermezi Decl. ¶¶ 4-7.)
In opposition, Defendants contend that Plaintiff’s motion must be denied because it was modified by a subsequent oral agreement between the parties. (Opposition, 8-9.) They also claim that Plaintiff owes Selah approximately $2,000,000 and that it should be offset against any recovery under the settlement agreement
In reply, Plaintiff contends that Defendants’ argument in opposition regarding a subsequent oral agreement must be disregarded because the court’s inquiry in a motion to enforce settlement must be limited to the terms of the written settlement agreement. Additionally, Plaintiff contends that Defendants’ remaining arguments fail because the Settlement Agreement provides that it can only be modified in writing. (Reply, 3-5.)
The court finds that the Settlement Agreement is valid and binding. Defendants do not dispute that they signed the Settlement Agreement and Stipulation, or that they have not made payments pursuant to the Settlement Agreement. Additionally, the Settlement Agreement provides at paragraph 24 that it may not be modified except by writing, and Defendants have submitted no evidence demonstrating that the parties entered into such a written modification of the Settlement Agreement. If Selah has claims against Plaintiff, they would need to be enforced separately from the Settlement Agreement and Judgment.
For these reasons, Plaintiff’s motion is granted.
Plaintiff’s motion is granted. Judgment will be entered against Defendants Gregory Whitfield aka Greg Whitfield, Robbie Jackson, and David Whitfield, jointly and severally, in the sum of $450,000 plus interest thereon at the legal rate of ten percent (10%) per annum from the date of entry of Judgment until Judgment is paid in full. Plaintiff is to give notice.