This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 03:36:03 (UTC).

BYUNG SAM YUN VS PAUL H SWEENEY ET AL

Case Summary

On 01/23/2017 BYUNG SAM YUN filed a Contract - Professional Negligence lawsuit against PAUL H SWEENEY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7790

  • Filing Date:

    01/23/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Plaintiff and Petitioner

YUN BYUNG SAM

Defendants and Respondents

SWEENEY PAUL H.

DOES 1 TO 10

LAW OFFICES OF PAUL H. SWEENEY APC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MCGONIGLE TIMOTHY D. ESQ.

PC TIMOTHY D. MCGONIGLE

Defendant Attorney

CHRISTOPHER REAL ATTORNEY AT LAW

 

Court Documents

MOTION OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H. SWEENEY FOR JUDGMENT ON THE

2/7/2018: MOTION OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H. SWEENEY FOR JUDGMENT ON THE

EX PARTE APPLICATION OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H. SWEENEY FOR AN ORDER SETTING 5 MARCH 2018 OR 27 FEBRUARY 2018 AS THE DATE FOR HEARING DEFENDANTS' MOTION FOR JUDGMENT ON T

2/13/2018: EX PARTE APPLICATION OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H. SWEENEY FOR AN ORDER SETTING 5 MARCH 2018 OR 27 FEBRUARY 2018 AS THE DATE FOR HEARING DEFENDANTS' MOTION FOR JUDGMENT ON T

OPPOSITION OF PLAINTIFF BYUNG SAM YUN TO EX PARTE APPLICATION OF DEFENDANTS FOR AN ORDER SPECIALLY SETTING HEARING ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS;

2/13/2018: OPPOSITION OF PLAINTIFF BYUNG SAM YUN TO EX PARTE APPLICATION OF DEFENDANTS FOR AN ORDER SPECIALLY SETTING HEARING ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS;

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

2/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

NOTICE OF CASE REASSIGNMENT

2/27/2018: NOTICE OF CASE REASSIGNMENT

PLAINTIFF'S EXHTBIT LIST

2/28/2018: PLAINTIFF'S EXHTBIT LIST

NOTICE OF SETTLEMENT OF ENTIRE CASE

3/5/2018: NOTICE OF SETTLEMENT OF ENTIRE CASE

NOTICE OF ORDER TO SHOW CAUSE HEARING

3/6/2018: NOTICE OF ORDER TO SHOW CAUSE HEARING

Declaration

3/11/2019: Declaration

Declaration

5/28/2019: Declaration

Memorandum of Points & Authorities

5/28/2019: Memorandum of Points & Authorities

NOTICE OF CASE MANAGEMENT CONFERENCE

2/24/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF HEARING ON DEMURRER OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H.SWEENEY, A PROFESSIONAL CORPORATION, TO COMPLAINT OF PLAINTIFF BYUNG SAM YUN

3/14/2017: NOTICE OF HEARING ON DEMURRER OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H.SWEENEY, A PROFESSIONAL CORPORATION, TO COMPLAINT OF PLAINTIFF BYUNG SAM YUN

PLAINTIFF'S OPPOSITION TO DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

3/30/2017: PLAINTIFF'S OPPOSITION TO DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

STPULAT1ON TO CONTINUE CASE MANAGEMENT CONFERENCE

4/3/2017: STPULAT1ON TO CONTINUE CASE MANAGEMENT CONFERENCE

Unknown

4/6/2017: Unknown

Unknown

4/13/2017: Unknown

27 More Documents Available

 

Docket Entries

  • 05/28/2019
  • Memorandum of Points & Authorities; Filed by Paul H. Sweeney (Defendant); Law Offices of Paul H. Sweeney, APC (Defendant)

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  • 05/28/2019
  • Declaration (OF CHRISTOPHER REAL SUPPORTING DEFENDANTS' MEMORANDUM IN OPPOSITION); Filed by Paul H. Sweeney (Defendant); Law Offices of Paul H. Sweeney, APC (Defendant)

    Read MoreRead Less
  • 03/29/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5)

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  • 03/11/2019
  • Memorandum of Points & Authorities; Filed by Paul H. Sweeney (Defendant); Law Offices of Paul H. Sweeney, APC (Defendant)

    Read MoreRead Less
  • 03/11/2019
  • Declaration (OF CHRISTOPHER REAL SUPPORTING DEFENDANTS' MEMORANDUM IN OPPOSITION); Filed by Paul H. Sweeney (Defendant); Law Offices of Paul H. Sweeney, APC (Defendant)

    Read MoreRead Less
  • 02/26/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 01/25/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 01/08/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 12/20/2018
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 08/17/2018
  • at 08:30 AM in Department 56; (OSC RE Dismissal; Order of Dismissal) -

    Read MoreRead Less
75 More Docket Entries
  • 03/14/2017
  • NOTICE OF HEARING ON DEMURRER OF DEFENDANTS PAUL H. SWEENEY AND LAW OFFICES OF PAUL H.SWEENEY, A PROFESSIONAL CORPORATION, TO COMPLAINT OF PLAINTIFF BYUNG SAM YUN

    Read MoreRead Less
  • 02/24/2017
  • Notice of Case Management Conference; Filed by Byung Sam Yun (Plaintiff)

    Read MoreRead Less
  • 02/24/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 02/24/2017
  • Notice-Filing; Filed by Byung Sam Yun (Plaintiff)

    Read MoreRead Less
  • 02/24/2017
  • NOTICE OF FILING PROOF OF SERVICE OF SUMMONS AND COMPLAINT ON ALL DEFENDANTS

    Read MoreRead Less
  • 01/27/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 01/27/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/23/2017
  • SUMMONS

    Read MoreRead Less
  • 01/23/2017
  • Complaint; Filed by Byung Sam Yun (Plaintiff)

    Read MoreRead Less
  • 01/23/2017
  • COMPLAINT FOR LEGAL MALPRACTICE

    Read MoreRead Less

Tentative Rulings

Case Number: BC647790    Hearing Date: February 11, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BYUNG SAM YUN,

Plaintiff,

vs.

PAUL H. SWEENEY, et al.,

Defendants.

CASE NO.: BC647790

[TENTATIVE] ORDER RE: MOTION TO ENTER JUDGMENT PURSUANT TO STIPULATION

Date: February 11, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Byung Sam Yun

RESPONDING PARTIES: Defendants Paul H. Sweeney (“Sweeney”) and Law Offices of Paul H. Sweeney, APC

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s complaint arises from the alleged legal malpractice in the underlying action of Balasubramanian v. AppsHosting, Inc., et al., Orange County Superior Court Case No. 30-2015-00767149-CU-PP-CJC (the “Underlying Action”). Plaintiff filed a complaint against Defendants alleging a sole cause of action for: (1) legal malpractice.

According to the declaration of Plaintiff’s counsel, Timothy McGonigle, on October 18, 2018, Plaintiff and Defendants entered into a stipulation for judgment which stated that: (1) Defendants stipulated that judgment can be entered in this action against them for $250,000.00; (2) no judgment would be entered, and Plaintiff would not request the Court to enter a judgment, if Defendants paid $100,000.00 jointly to Plaintiff and his attorney, Timothy D. McGonigle, Esq. no later than December 7, 2018; (3) Plaintiff could apply ex parte for the Court to enter judgment if Defendants did not pay the $100,000.00 by December 7, 2018; and (4) the Los Angeles Superior Court shall retain jurisdiction over the parties pursuant to California Code of Civil Procedure, Section 664.6 to enforce the stipulation for judgment. (McGonigle Decl. at ¶ 15; McGonigle Decl. at Exhibit F.)

On August 19, 2019, Plaintiff filed a motion for entry of judgment pursuant to stipulation on the grounds that: (1) the parties settled this case and stipulated to entry of judgment in the amount of $250,000.00 in favor of Plaintiff and against Defendants but Plaintiff offered Defendants a discount if a lesser sum was paid in full by a date certain; and (2) after several extensions of time, Defendants have not paid the discounted sum and Plaintiff seeks entry of judgment in the amount of $250,000.00. On September 13, 2019, the Court denied without prejudice Plaintiff’s motion for entry of judgment pursuant to stipulation.

On January 15, 2020, Plaintiff filed a second motion for the Court to enter judgment pursuant to situation. Pursuant to his motion, Plaintiff requests that: (1) the Court enter judgment in favor of Plaintiff pursuant to the stipulation for judgment dated October 18, 2018 reached in settlement between the parties; and (2) in the alternative, Plaintiff moves for entry of judgment against Defendants in the amount of $100,000.00 pursuant to said stipulation. Plaintiff asserts that he is entitled to prejudgment interest at the rate of seven percent per annum, and is entitled to recover his costs pursuant to memorandum of costs.

Plaintiff asserts that: (1) the $250,000.00 figure was the compromise settlement and it was not a penalty; (2) even if the Court is still not inclined to enter judgment in the full settlement amount, it should enter judgment in the amount of $100,000.00; and (3) Plaintiff is entitled to prejudgment interest.

Defendants oppose Plaintiff’s motion on the grounds that: (1) the Court should affirm its prior ruling denying Plaintiff’s motion and deny Plaintiff’s renewed motion; (2) the stipulation does not provide for the Court to enter judgment in an amount different than the amount the parties stipulation; (3) Plaintiff cites no legal authority to rebut their argument that the $250,000.00 in a penalty thereby conceding to Defendants for a second time on that issue; and (4) even if Plaintiff were successful, Plaintiff would not be entitled to prejudgment interest because the stipulation does not provide for it.

DISCUSSION

Under California Code of Civil Procedure, Section 664.6 “[i]f 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 settlement until performance in full of the terms of the settlement.” Settlement language cannot “purport[t] to vest the trial court with retained jurisdiction after . . . dismissal.” (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008.) “A court does not retain jurisdiction over a case which has been dismissed.” (Id. at 1010.) “[P]arties who have no case pending in a court [cannot] obtain a judgment from that court.” (Id.) “[A] party must apprise the court, within the settlement agreement or otherwise, of the desire of the parties that the court retain jurisdiction of the case.” (Id.) Even though parties are permitted to request for the court to retain jurisdiction after dismissal, such request must be made during the pendency of the litigation. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.) Like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not their attorneys, spouses, or other such agents. (Id.) If all of these requirements are not met, then enforcement of the agreement must be left to a separate lawsuit. (Id.) “By its express terms, section 664.6 only permits an entry of stipulated judgment by parties to pending litigation.” (Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1112-1113.)

Issue No. 1: The Stipulation as a Penalty

A stipulation for settlement becomes “an unenforceable penalty if it bears no reasonable relationship to the range of actual damages that the parties have anticipated would flow from a breach. The amount set as liquidated damages must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.” (Purcell v. Schweitzer (2014) 224 Cal.App.4th 969, 974-975.) “[T]he relevant breach to be analyzed is the breach of the stipulation, not the breach of the underlying contract.” (Id. at 975, emphasis added.) There must be an attempt to anticipate the damages that would result from the breach of the stipulation. (Id.) “A contractual provision imposing a penalty is ineffective, and the wronged party can collect only the actual damages sustained.” (Vitatech Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 806.) A stipulation for entry of judgment does not have to use the exact phrase liquidated damages but “its legal effect [can] [be] the same as a liquidated damages provision.” (Id.) “[T]he amount of judgment must reasonably relate to the damages likely to arise from the breach of the stipulation, not the alleged breach of the underlying contract, because it is the breach of the stipulation that allows [Plaintiff] to enter judgment against [Defendants].” (Id. at 810.) “The characteristic feature of a penalty is its lack of proportional relation to the damages which may actually flow from failure to perform under a contract.” (Id. at 699.)

Plaintiff’s Evidence in Support of Motion

Plaintiff relevantly declares that: (1) on November 17, 2006, he incorporated AppsHosting, Inc. (“AppsHosting”) along with Ashok Balasubramanian (“Ashok”) and he was the President of AppsHosting, Ashok was the Treasurer of AppsHosting, and Kiwook Uhm was the Secretary of AppsHosting (Yun Decl. at ¶ 1); (2) on January 20, 2015, Ashok filed a shareholder complaint against him, AppsHosting, and others which gave rise to the Underlying Action and he retained Greenburg Traurig, LLP to defend AppsHosting in the Underlying Action and he was advised by them to return separate counsel to defend himself (Id. at ¶ 2); (3) he retained Sweeney and his firm to represent him in the Underlying Action and the arbitration with Judge Marcus (Id. at ¶ 3 and Exhibit A); (4) Sweeney gave him erroneous legal advice and failed to advise him of the proper procedures to be followed to obtain indemnification from AppsHosting of the expenditure of attorneys’ services (Id. at ¶ 4); (5) he paid Sweeney approximately $116,569.58 for his negligent advice and he was seeking that amount back from him as part of his damages in the legal malpractice case as those services had no value (Id.); and (6) on April 28, 2015, the parties in the Underlying Action reached a settlement agreement. (Id. at ¶¶ 5-6.)

Plaintiff also declares that: (1) after the settlement agreement was executed, Ashok initiated arbitration against him before Hon. Michael D. Marcus and claimed that his expenses were unauthorized, and he had to repay AppsHosting for four categories of unauthorized expenses totaling $532, 108.70 (Id. at ¶ 7); (2) on April 29, 2016, Judge Marcus issued the final arbitration award (Id. at ¶ 9 and Exhibit B); (3) the final arbitration award ordered him to pay a total of $275,383.75 to AppsHosting (Id. at ¶ 11); (4) pursuant to a prevailing party clause in the settlement agreement, Judge Marcus ordered him to pay Ashok $43,924.58 in reasonable attorneys’ fees and costs (Id. at ¶ 12); (5) on August 4, 2016 , the Los Angeles Superior Court granted Ashok’s petition to confirm the final arbitration award (Id. at ¶ 13 and Exhibit G); and (6) due to Defendants’ failure to advise him adequately and counsel him, he suffered damages of not less than $281,865.41 including the attorneys’ fees he paid to Sweeney. (Id. at ¶ 15.)

McGonigle relevantly declares that: (1) on January 23, 2017, he commenced this action on behalf of Plaintiff and against Defendants for legal malpractice (McGonigle Decl. at ¶ 1 and Exhibit H); (2) the parties negotiated numerous settlements and stipulation in this case (Id. at ¶¶ 5-9, 15 and Exhibits C, D, E, F, and G); (3) Plaintiff has been very patient and Defendants have continued to provide excuses for delays in paying the settlement and have not paid the discounted sum of $100,000.00 to avert entry of judgment in favor of Plaintiff and against Defendants in the amount of $250,000.00 (Id. at ¶ 16); (4) more than eighteen months have passed since Defendants promised to pay a discounted sum in order to avoid the entry of judgment against them for $250,000.00 (Id. at ¶ 16); and (5) there is no evidence that the $250,000.00 judgment was ever intended as a penalty for breach of the settlement agreement and it was suggested by Defendants’ counsel of record, Mr. Real. (Id. at ¶ 18 and Exhibit N.)

McGonigle also declares that: (1) the stipulation was compromise of the more than $319,000.00 that Plaintiff was required to pay under the arbitration award which was based on hard numbers and it was not a penalty (Id. at ¶ 18); (2) Sweeney is an experienced lawyer and would have never agreed to a penalty and the fact that Plaintiff offered Defendants a substantial discount was not to create a penalty for Defendants to avoid, but it was offered as an incentive for Defendants to pay a reduced sum voluntarily so that Plaintiff could avoid further litigation costs (Id.); (3) given that more than a year has passed since Defendants first agreed to pay a discounted sum by a date certain to limit their exposure to a judgment for more than $319,000.00, it appears that Defendants are no longer interested in paying the discounted sum to avoid the stipulated judgment for $250,000.00 (Id.) ; and (4) at minimum, if the Court will not enter the amount of $250,000 as stipulated by the parties, the Court should enter judgment in the amount of $100,000.00.

Defendants’ Evidence in Opposition

Defendants present the declaration of their counsel, Christopher Real (“Real”), who declares that: (1) on March 2, 2018, he sent a letter to Plaintiff’s counsel in this action and he did not discuss the $250,000.00 amount in his letter or negotiate with him before writing to him or any time afterwards; (2) he simply sent the letter with a proposed stipulation and Plaintiff’s counsel signed it; (3) he never admitted liability in this action; and (4) he never endeavored with Plaintiff’s counsel to determine the damages, if any, that Plaintiff would incur if the stipulation to pay the $100,000.00 were breached.

Analysis with Respect to $250,000.00 Entry of Judgment

Here, the Court finds that Plaintiff has not submitted sufficient evidence for the Court: (1) to find that the stipulated judgment amount of $250,000.00 is not a penalty; and (2) that the stipulated judgment amount of $250,000.00 bears a reasonable relationship to the actual damages Plaintiff would incur if the stipulation was breached. Thus, the Court denies Plaintiff’s request to enter judgment in the amount of $250,000.00 pursuant to the parties’ October 18, 2018 stipulation.

Analysis with Respect to $100,000.00 Entry of Judgment

The Court finds that Plaintiff’s request for the Court, in the alternative, to enter judgment in the amount of $100,000.00 is warranted. Defendants cite to Jones for the proposition that a “trial court is under a duty to render a judgment that is in exact conformity with an agreement or stipulation of the parties.” (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840.) The Court finds Jones distinguishable from the instant action because in Jones the argument of Defendants was that the judgment entered was beyond the jurisdiction of the trial court because: (1) it included interest; and (2) it failed to include a provision for stay of execution. (Id. at 838-839.) Here, there is no issue of prejudgment interest in the stipulated judgment and there is no issue of stay of execution and Jones is not persuasive. Moreover, the Court finds that it is empowered to reduce the judgment pursuant to the stipulation of parties to a lesser amount. (Greentree Financial Group, Inc. v Execute Sports, Inc. (2008) 163 Cal.App.4th 495, 502.) In Greentree, “plaintiff sued defendant for breach of contract arising from a failure to pay plaintiff $45,000 for financial services.” (Vitatech Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 808.) “The parties reached a settlement they memorialized in a stipulation for entry of judgment, which provided the defendant would pay the plaintiff $20,000 in two installments, and if the defendant failed to make either payment the plaintiff could enter judgment against the defendant for the full amount sought in the plaintiff’s complaint, including interest and attorney fees.” (Id. at 809.) Although the Greentree court rejected plaintiff’s argument that the amount specified in the judgment was reasonably related to the damages because the relevant breach was a breach of the stipulation, and not the underlying contract and plaintiff failed to show a reasonable relation with respect to damages that would be incurred from a breach of the stipulation, the Greentree court allowed plaintiff to recover pursuant to the stipulation and entered a judgment in the reduced amount that had been agreed to be paid in settlement. (Id. at 809-810; see also Greentree Financial Group, Inc. v Execute Sports, Inc. (2008) 163 Cal.App.4th 495, 502.)

Thus, the Court GRANTS Plaintiff’s request to enter judgment in the amount of $100,000.00 pursuant to the October 18, 2018 stipulation under Greentree.[1]

As such, the Court GRANTS Plaintiff’s motion to enter judgment pursuant to stipulation and enters judgment against Defendants in the amount of $100,000.00 pursuant to the parties’ stipulation.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 11th day of February 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Court denies Plaintiff’s request for prejudgment interest as prejudgment interest was not included in the stipulation reached between the parties. (Vitatech International, Inc. v. Sporn (2017) 16 Cal.App.5th 796, 815.)