This case was last updated from Los Angeles County Superior Courts on 10/27/2020 at 08:19:25 (UTC).

B&Y FASHION INC ET AL VS ORLANDO F CABANDAY ET AL

Case Summary

On 04/17/2018 B Y FASHION INC filed a Contract - Other Contract lawsuit against ORLANDO F CABANDAY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and MONICA BACHNER. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2606

  • Filing Date:

    04/17/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

MONICA BACHNER

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

BIRMAN BENNY

B&Y FASHION INC

B&Y FASHION INC.

Defendants, Respondents and Cross Plaintiffs

DOES 1 TO 10

CABANDAY LAW GROUP

CABANDAY ORLANDO F

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ROSTON MATTHEW E. ESQ.

ROSTON MATTHEW E ESQ.

Plaintiff and Cross Defendant Attorney

ROSTON MATTHEW E ESQ.

 

Court Documents

Notice - NOTICE OF HEARING ON ITS MOTION TO ENFORCE SETTLEMENT AND REQUEST FOR SANCTIONS

7/15/2020: Notice - NOTICE OF HEARING ON ITS MOTION TO ENFORCE SETTLEMENT AND REQUEST FOR SANCTIONS

Declaration - DECLARATION OF ORLANDO F. CABANDAY RE MEET AND CONFER FOR JOINT TRIAL DOCUMENTS

2/13/2020: Declaration - DECLARATION OF ORLANDO F. CABANDAY RE MEET AND CONFER FOR JOINT TRIAL DOCUMENTS

Exhibit List - EXHIBIT LIST JOINT EXHIBIT LIST

2/13/2020: Exhibit List - EXHIBIT LIST JOINT EXHIBIT LIST

Request for Dismissal

11/6/2019: Request for Dismissal

Motion in Limine - MOTION IN LIMINE NO., 3 TO EXCLUDE EVIDENCE NOT DISCLOSED IN DISCOVERY

10/24/2019: Motion in Limine - MOTION IN LIMINE NO., 3 TO EXCLUDE EVIDENCE NOT DISCLOSED IN DISCOVERY

Motion in Limine - MOTION IN LIMINE NO., 1 TO EXCLUDE EVIDENCE RELATED TO PLAINTIFF BENNY BIRMAN'S CRIMINAL CONVICTION FOR NON-CREDIBILITY PURPOSES AND B & Y FASHION, INC.'S CORPORATE DOCUMENTS

10/24/2019: Motion in Limine - MOTION IN LIMINE NO., 1 TO EXCLUDE EVIDENCE RELATED TO PLAINTIFF BENNY BIRMAN'S CRIMINAL CONVICTION FOR NON-CREDIBILITY PURPOSES AND B & Y FASHION, INC.'S CORPORATE DOCUMENTS

Exhibit List

10/31/2019: Exhibit List

Witness List

10/31/2019: Witness List

Declaration - DECLARATION OF MATTHEW E. ROSTON IN COMPLIANCE WITH LOS ANGELES SUPERIOR COURT RULE 3.57

11/1/2019: Declaration - DECLARATION OF MATTHEW E. ROSTON IN COMPLIANCE WITH LOS ANGELES SUPERIOR COURT RULE 3.57

Minute Order - Minute Order (Status Conference; Order to Show Cause Re: Sanctions for PLai...)

3/6/2019: Minute Order - Minute Order (Status Conference; Order to Show Cause Re: Sanctions for PLai...)

Minute Order -

8/15/2018: Minute Order -

ANSWER TO CROSS-COMPLAINT

9/7/2018: ANSWER TO CROSS-COMPLAINT

CROSS-COMPLAINT FOR BREACH OF RETAINER AGREEMENTS AND QUANTUM MERUIT

8/2/2018: CROSS-COMPLAINT FOR BREACH OF RETAINER AGREEMENTS AND QUANTUM MERUIT

SUMMONS - CROSS-COMPLAINT FOR BREACH OF RETAINER AGREEMENTS AND QUANTUM MERUIT

8/2/2018: SUMMONS - CROSS-COMPLAINT FOR BREACH OF RETAINER AGREEMENTS AND QUANTUM MERUIT

CASE MANAGEMENT STATEMENT -

8/2/2018: CASE MANAGEMENT STATEMENT -

CIVIL DEPOSIT

8/9/2018: CIVIL DEPOSIT

CASE MANAGEMENT STATEMENT -

8/9/2018: CASE MANAGEMENT STATEMENT -

NOTICE OF CASE MANAGEMENT CONFERENCE

4/19/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

57 More Documents Available

 

Docket Entries

  • 10/22/2020
  • Docketat 08:30 AM in Department 24; Order to Show Cause Re: Dismissal - Not Held - Advanced and Vacated

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  • 10/06/2020
  • Docketat 1:30 PM in Department 24; Court Order

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  • 10/06/2020
  • DocketCertificate of Mailing for ((Court Order) of 10/06/2020); Filed by Clerk

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  • 10/06/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/16/2020
  • DocketOrder ([Proposed]); Filed by B&Y Fashion, Inc. (Plaintiff)

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  • 09/02/2020
  • Docketat 09:30 AM in Department 24; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 09/02/2020
  • Docketat 09:30 AM in Department 24; Hearing on Motion to Enforce Settlement ((filed on 6/24/20)) - Held - Motion Granted

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  • 09/02/2020
  • DocketMinute Order ( (Hearing on Motion to Enforce Settlement (filed on 6/24/20); O...)); Filed by Clerk

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  • 07/27/2020
  • Docketat 08:30 AM in Department 24; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Continued - Court's Motion

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  • 07/15/2020
  • DocketNotice (of Hearing on Its Motion to Enforce Settlement and Request for Sanctions); Filed by B&Y Fashion, Inc. (Plaintiff)

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95 More Docket Entries
  • 07/03/2018
  • DocketDECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

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  • 07/03/2018
  • DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER

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  • 04/24/2018
  • DocketFIRST AMENDED COMPLAINT FOR DAMAGES FOR: 1) BREACH OF CONTRACT; ETC.

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  • 04/24/2018
  • DocketFirst Amended Complaint; Filed by B&Y Fashion Inc (Plaintiff); Benny Birman (Plaintiff)

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  • 04/24/2018
  • DocketFirst Amended Complaint for Damages for: 1) Breach of Contract 2) Conversion 3) Breach of Fiduciary Duty 4) Unjust Enrichment; Filed by B&Y Fashion, Inc. (Plaintiff); Benny Birman (Plaintiff)

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  • 04/19/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/19/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/17/2018
  • DocketComplaint; Filed by B&Y Fashion Inc (Plaintiff); Benny Birman (Plaintiff)

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  • 04/17/2018
  • DocketSUMMONS

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  • 04/17/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1) BREACH OF CONTRACT ;ETC

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Tentative Rulings

Case Number: BC702606    Hearing Date: September 02, 2020    Dept: 24

Plaintiffs B&Y Fashion Inc. and Benny Birman’s motion to enter judgment pursuant to CCP section 664.6 is GRANTED.

On April 17, 2018, Plaintiffs B&Y Fashion Inc. and Benny Birman (collectively “Plaintiffs”) filed the instant breach of contract action against Defendants Orlando F. Cabanday (“Cabanday”) and Cabanday Law Group (“CLG”) (collectively “Defendants”).

Plaintiffs allege that Defendants failed to disburse settlement proceedings from their trust account following a settlement of an underlying suit. The Complaint states four causes of action for: 1) breach of contract; 2) conversion; 3) breach of fiduciary duty; and 4) unjust enrichment.

On August 2, 2018, Defendants filed a cross-complaint against B&Y for breach of retainer agreements and quantum meruit.

On June 24, 2020, Plaintiffs filed a motion to enforce settlement. No opposition was filed.

Legal Standard

Pursuant to CCP 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.”

“Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37;Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1262.) In ruling on a motion under § 664.6, the trial judge may receive oral testimony, or may determine the motion upon declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the agreement was reached at a court hearing, the court can resolve the dispute on the basis of its own notes or recollection of what was agreed to (as well as any transcripts of the proceedings). (Richardson v. Richardson(1986) 180 Cal.App.3d 91, 97.)

Settlements require the personal consent of all parties either orally before the court or in writing, signed by the parties, in order to be enforceable under section 664.6. (Critzer v. Enos (2010) 187 Cal.App.4th 1242.) The term “parties” as used in section 664.6 means the litigants themselves, not their attorneys of record or other agents. (Cortez v. Kenneally (1996) 44 Cal.App.4th 523, 530.) In a multi-party action, all parties do not need to agree to the settlement in the same manner; some parties may stipulate to the settlement in open court while others stipulate in writing. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421; see also Provost v. Regents of Univ. of Calif. (2011) 201 Cal.App,4th 1289, 1299 [individual dismissed defendants were third party beneficiaries and were not required to sign for agreement to be enforceable under section 664.6].)

Discussion

Plaintiffs provide the following evidence. On February 18, 2020, two weeks before trial, the parties attended a mediation session with Bruce Isaacs, Esq. ("Isaacs") at Signature Resolution. (Roston Decl., ¶ 2. ) Following the mediation, Isaacs sent all parties a mediator's proposal to resolve the case which was entitled "MEDIATOR'S PROPOSAL- SHORT FORM STIPULATION FOR SETTLEMENT" ("Short Form Agreement"). On February 22, 2020, the Short Form Agreement was signed by all parties. (Roston Decl., ¶¶ 2-3, Ex. B.) The Short Form Agreement contained the material terms of the parties’ agreement. (Ibid.) The Short Form Agreement specifically references CCP section 664.6 to ensure its enforcement in the event that disagreements arose in completing the final written agreement.

The long form agreement does not meet the procedural requirements without the signature of all parties. Only the Birmans and B&Y signed the long form agreement. (See Roston Decl., Ex. D.)

As Plaintiffs have demonstrated that they fully executed a settlement agreement in writing, the Court will enter judgment pursuant to its terms. The Short Form Agreement provides that Defendants would provide Plaintiffs with $8,750.00.

Accordingly, Plaintiffs’ motion is GRANTED. Judgment will be entered for Plaintiffs and against Defendants for $8,750.00.

The request for sanctions per CCP section 128.5 is DENIED. Plaintiffs supply insufficient authority demonstrating that failing to pay a settlement agreement or fully execute a long-form settlement could be considered a frivolous “action or tactic” under the statute.

Moving party is ordered to give notice.