On 09/06/2017 IVAN LIANG filed a Contract - Business lawsuit against LIANGS KITCHEN MPK INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS and RUPERT A. BYRDSONG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DALILA CORRAL LYONS
RUPERT A. BYRDSONG
LIANG & LEE HOLDING INC
LIANG & LEE HOLDING INC.
LIANG'S KITCHEN MPK INC
LIANG'S KITCHEN ARTESIA'S INC
DOES 1 TO 50
CINDY'S NOODLE LAND INC
KITCHEN SHANG JIE
LIANG'S KITCHEN MPK INC.
LIANG'S KITCHEN ARTESIA'S INC.
CINDY'S NOODLE LAND INC.
DU CHUNMING DBA SHANG JIE KITCHEN
HSU RAY ESQ.
LIN VINCENT Y. ESQ.
LIN VINCENT Y.
11/15/2017: ANSWER TO COMPLAINT FOR DAMAGES: 1. BREACH OF CONTRACT 2. BREACH OF FIDUCIARY DUTY 3. NEGLIGENT MISREPRESENTATION; ETC
11/15/2017: CROSS COMPLAINT FOR DAMAGES: 1. BREACH OF CONTRACT 2. BREACH OF FIDUCIARY DUTY 3. NEGLIGENT MISREPRESENTATION; ETC
9/29/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
9/21/2017: ORDER TO SHOW CAUSE HEARING
9/21/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
9/6/2017: COMPLAINT FOR DAMAGES (1) BREACH OF CONTRACT ;ETC
at 1:30 PM in Department 20, Dalila Corral Lyons, Presiding; Status Conference (reSettlement) - Not Held - Advanced and VacatedRead MoreRead Less
at 1:30 PM in Department 20, Dalila Corral Lyons, Presiding; Order to Show Cause Re: (why this court should not strike the Cross-Complaint filed on November 15, 2017 by Liang's Kitchen Artesia, Inc., a California Corporation) - HeldRead MoreRead Less
at 1:30 PM in Department 20, Dalila Corral Lyons, Presiding; Order to Show Cause Re: (why this court should not impose sanctions against plaintiffs, for their failure to proceed with default against defendant Liang's Kitchen Artesia's Inc. and/or failure by said defendant to file a response to the First Amended Complaint) - Not Held - Advanced and VacatedRead MoreRead Less
Minute Order ( (ORDER TO SHOW CAUSE WHY THIS COURT SHOULD NOT STRIKE THE CROS...)); Filed by ClerkRead MoreRead Less
Notice of Ruling (RE SETTLEMENT); Filed by Liang & Lee Holding Inc. (Plaintiff); Ivan Liang (Plaintiff)Read MoreRead Less
at 3:00 PM in Department 20, Dalila Corral Lyons, Presiding; Non-Appearance Case Review (of Plaintiffs' Status Report re Settlement) - HeldRead MoreRead Less
Minute Order ( (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...) of 05/31/2019); Filed by ClerkRead MoreRead Less
Notice of Settlement (of Entire Case); Filed by Liang & Lee Holding Inc. (Plaintiff); Ivan Liang (Plaintiff)Read MoreRead Less
at 09:30 AM in Department 20, Dalila Corral Lyons, Presiding; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
NOTICE OF HEARING ON DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF [CINDY'S NOOODLE LAND AND CHUNMING DU] DEMURRER TO COMPLAINT WITH DECLARATION OF VINCENT Y. LINRead MoreRead Less
Notice of Case Management Conference; Filed by Ivan Liang (Plaintiff); Liang & Lee Holding Inc. (Plaintiff)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES (1) BREACH OF CONTRACT ;ETCRead MoreRead Less
Complaint; Filed by nullRead MoreRead Less
Case Number: BC674730 Hearing Date: December 12, 2019 Dept: 20
Judge Dalila Corral Lyons
Hearing Date: Thursday, December 12, 2019
Case Name: Liang, et al. v. Liang’s Kitchen MPK, Inc., et al.
Case No.: BC674730
Motion: Enforce Settlement
Moving Party: Plaintiffs Ivan Liang and Liang & Lee Holding, Inc.
Responding Party: *UNOPPOSED*
Ruling: Plaintiffs Ivan Liang and Liang & Lee Holding, Inc.’s motion to enforce the Settlement Agreement between Plaintiffs Ivan Liang and Liang & Lee Holding, Inc. (“Plaintiffs”) and Defendants Liang’s Kitchen MPK, Inc. and Yan Cao (“Defendants”) and order Defendants to pay Plaintiffs $10,000.00 in compliance with the terms of the Parties’ Settlement Agreement is GRANTED conditioned upon the dismissal of the cross-complaint filed by three cross-complainants on 11/15/17 and all the other defendants not part of the Settlement Agreement, Cindy’s Noodle Land, Inc., Chunming Du and Liang’s Kitchen, Artesia, Inc.
Once the cross-complaint and the three defendants are dismissed the Court will enter judgment per this ruling.
Plaintiffs are ORDERED to file by December 16, 2019 a proposed judgment consistent with Plaintiffs’ and Defendants’ May 5, 2019 Settlement Agreement in favor of Plaintiffs and against Defendants in the amount of $10,000.00. The judgment will not be entered unless all these conditions are met.
The OSC re dismissal is continued from December 12, 2019 to January 2, 2020. Once the judgment is entered, this OSC will be vacated.
Moving Party to give notice.
On September 06, 2017 the Complaint was filed. On January 10, 2018 Plaintiffs Ivan Liang (“Liang”) and Liang & Lee Holding, Inc. (“Holding”) (collectively “Plaintiffs”) filed the First Amended Complaint (“FAC”) against Defendants Liang’s Kitchen MPK, Inc. (“MPK”), Liang’s Kitchen Artesia Inc. (“Artesia”), Cindy’s Noodle Land, Inc. (“Noodle Land”), Yan Cao (“Cao”), Chunming Du (“Du”) d/b/a Shang Jie Kitchen, and Does 1 through 50 for (1) breach of contract; (2) breach of fiduciary duty; (3) negligent misrepresentation; (4) actual fraud; (5) constructive fraud; (6) accounting; (7) trademark misappropriation; (8) trademark infringement (the Lanham Act); and (9) unfair competition—deceptive business practice (Business & Professions Code § 17200 et seq.).
Plaintiffs allege MPK was originally operated by Plaintiffs and in 2011 Cao entered into a written contract to purchase a 75% share of MPK. Plaintiffs allege pursuant to the agreement (1) Plaintiffs would retain 25% of their share in MPK; (2) Cao would pay 5% of the monthly gross income to Plaintiffs for management every month; (3) Cao would submit monthly accounting and books to verify the income information; (4) Cao could only use Plaintiffs’ service mark, trademark, and Plaintiffs’ recipes for food upon timely monthly payment and accounting; and (5) Cao was responsible for her own profits and losses for the restaurant business. Plaintiffs allege in August 2012 Plaintiffs and Cao entered into a similar contract for Cao’s purchase of a 75% share of Artesia. Plaintiffs allege Cao brought Du on to manage the restaurants and advertise the restaurants using Plaintiffs’ service mark and trademark. Plaintiffs allege in 2015 Cao breached the agreement as to MPK by failing to make the monthly payments, failing to provide monthly accounting, and failing to cease use of Plaintiffs’ service mark and trademark. Plaintiffs allege Cao claimed payments ceased because MPK suffered a loss, but no accounting was provided. And Plaintiffs allege in January 2017 they demanded accounting records for MPK and Artesia for the last three years and to cease use of Plaintiffs’ service mark and trademark, but such demand was unanswered. Plaintiffs allege the defendants incorporated Noodle Land, but continue to use and advertise the restaurant business with Plaintiffs’ service mark.
On November 15, 2017 MPK, Artesia, and Cao (collectively “Cross-Complainants”) filed the Cross-Complaint against Liang and Holding (collectively “Cross-Defendants”) and Roes 1 through 20 for (1) breach of contract; (2) breach of fiduciary duty; (3) negligent misrepresentation; (4) fraud; (5) accounting; (6) unjust enrichment; (7) breach of the implied covenant of good faith and fair dealing; and (8) unfair competition—deceptive business practice (Business & Professions Code § 17200 et seq.). Cross-Complainants allege Holding stopped supplying foods by the end of 2014. Cross-Complainants allege Cao received oral instructions to stop making financial reports and make monthly payments and instead Cao made such payments to Anita Yang, an employee at MPK’s headquarters until December 2015. Cross-Complainants allege they were abandoned by MPK’s headquarters and now Liang brings an action that results from his bad faith actions.
On May 30, 2019, Plaintiffs filed a Notice of Settlement of Entire Case. To date, Plaintiffs have not dismissed this complaint or the remaining non-settling defendants nor has the cross-complaint filed on 11/15/17 been dismissed.
Plaintiffs now seek to enforce a May 7, 2019 Settlement Agreement (“Settlement Agreement”) between Plaintiffs and Defendants Cao and MPK (“Parties”). Plaintiffs ask the Court to enter judgment for $10,000.00, pursuant to the Settlement Agreement.
A. Failure to Oppose
The moving party generally bears the initial burden of proof on its motion. Therefore, lack of opposition does not automatically entitle plaintiff to prevail on the motion. However, a party’s failure to file opposition can be considered as an admission that the motion is meritorious, and the Court can refuse to hear oral argument from such party. Oral argument should not be allowed because it is improper to introduce legal theories without notice to opposing counsel and the court. Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.
B. Valid Settlement Agreement
“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.” CCP § 664.6.
Courts are empowered to enter judgments pursuant to oral settlements made before the court or written settlements signed by the parties. Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428; CCP § 664.6; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶12:952. In deciding motions made under Section 664.6, judges “must determine whether the parties entered into a valid and binding settlement.” Kohn v. Jaymar-Ruby (1994) 23 Cal. App. 4th 1530, 1533. In deciding whether to enforce a settlement, courts have the power to decide disputed facts, and to interpret the agreement. Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶12:977 – 12:978.5.
Here, there is no basis to decline to enforce the Settlement Agreement between the Parties. On May 7, 2019, the Parties executed the Settlement Agreement which expressly provides that Defendants Cao and MPK agreed to send Plaintiffs “one check for Ten-Thousand Dollars and Zero Cents ($10,000.00) to be made by the end of the July 25, 2019.” Hsu Decl., Exh. 1, ¶ 1. All Parties signed the Settlement Agreement and none contest the validity of the Settlement Agreement. Hsu Decl., Exh. 1 at p. 5. Based upon these facts, the Court finds that the Parties entered into a valid and binding settlement agreement enforceable pursuant to CCP Section 664.6.
Courts may receive evidence, determine disputed facts including the terms the Parties previously agreed upon, and enter the terms of a settlement agreement as a judgment, but may not newly create material terms. Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360. Courts also cannot address ambiguities in material terms by filling in the gaps, or adjudicate differences between the Parties, as distinguished from just settling or interpreting the settlement provisions. Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1460.
Plaintiffs provide satisfactory, uncontroverted evidence that Defendants Cao and MPK failed to send a $10,000.00 check on July 25, 2019. Under the Settlement Agreement, the check at issue was to be made payable to Plaintiffs’ attorney’s trust account. Hsu Decl., Exh. 1, ¶ 1. Plaintiff’s attorney declares he never received from Defendants Cao and MPK a $10,000 check on or after July 25, 2019. Hsu Decl. ¶ 7. Therefore, Defendants Cao and MPK breached the Settlement Agreement and have given no reason excusing that breach.
C. Attorney Fees and Costs
Plaintiffs also request an award of attorney fees and costs for bringing this motion to enforce the settlement agreement, pursuant to paragraphs 9 and 10 of the Settlement Agreement.
Paragraph 9 provides “if either party violates this Agreement by suing the other party for any reason for which suit is precluded by this Agreement, the suing party agrees that he/she will pay all costs and expenses incurred by the non-suing party in defending such a lawsuit, including reasonable attorneys’ fees, in the event that the non-suing party prevails in any such suit.” Hsu Decl., Exh. 1, ¶ 9. By its terms, Paragraph 9 does not apply here because neither Plaintiffs nor Defendants Cao and MPK have filed a second suit.
Paragraph 10 provides “if either party successfully sues the other party for enforcement of this Agreement, the prevailing party shall receive its reasonable attorneys’ fees and expenses for pursuing said action.” Hsu Decl., Exh. 1, ¶ 10. By its terms, Paragraph 10 does not apply here because Plaintiffs have not sued Defendants Cao and MPK to enforce the Settlement Agreement. Although Plaintiffs style this motion as one to enforce the Settlement Agreement under the Court’s retained jurisdiction pursuant to CCP § 664.6, Plaintiffs have not dismissed the original lawsuit. The Court does not retain jurisdiction under CCP § 664.6 until Plaintiffs dismiss the original lawsuit, an action that would normally deprive the Court of jurisdiction and thus necessitate that the Court retain jurisdiction. Because the original lawsuit continues, the Court is merely entering judgment consistent with the terms of the Settlement Agreement, as permitted by the first sentence of CCP § 664.6.
Instead, Plaintiffs have essentially requested that the Court enter judgment consistent with the Settlement Agreement in the original suit for trademark infringement. Plaintiffs have not filed a complaint for breach of the Settlement Agreement. Paragraph 10 does not apply because, by the plain meaning of the terms, the Settlement Agreement’s reference to suing the other party and paying fees in “said action” refer to expenses of prosecuting a separate breach of contract lawsuit only. Had the Parties meant to allow recovery of attorney fees and costs for any motion in the original suit to ensure compliance with the Settlement Agreement, the Parties could have used broader language. All Parties were represented by counsel and all counsel signed the Settlement Agreement to show approval “as to form and content.” Hsu Decl., Exh. 1 at p. 6. Lastly, the Parties agreed that “[e]xcept as specified herein, each party will bear its respective costs and fees, including attorney’s fees incurred in the litigation of this matter.” Hsu Decl., Exh. 1, ¶ 5. Paragraph 5’s limitation on awards of attorney fees and costs, except where specifically excepted, reinforces an interpretation that the language in Paragraph 10 applies only when a separate lawsuit is filed to enforce the Settlement Agreement.
Therefore, the Settlement Agreement’s Paragraphs 9 and 10 do not allow for an award of attorney fees and costs here.
Accordingly, Plaintiffs Ivan Liang and Liang & Lee Holding, Inc.’s motion to enforce the Settlement Agreement between Plaintiffs Ivan Liang and Liang & Lee Holding, Inc. and Defendants Liang’s Kitchen MPK, Inc. and Yan Cao and to order Defendants Liang’s Kitchen MPK, Inc. and Yan Cao to pay $10,000.00 within five days of this order in compliance with the terms of the Parties’ Settlement Agreement is GRANTED.
Hon. Dalila C. Lyons
Judge, Los Angeles Superior Court