This case was last updated from Los Angeles County Superior Courts on 11/19/2021 at 03:55:19 (UTC).

MICHAEL ABKARIAN VS AW COLLISION SCI ET AL

Case Summary

On 10/06/2017 MICHAEL ABKARIAN filed a Labor - Wrongful Termination lawsuit against AW COLLISION SCI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Not Classified By Court.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8654

  • Filing Date:

    10/06/2017

  • Case Status:

    Not Classified By Court

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELAINE LU

 

Party Details

Plaintiff

ABKARIAN MICHAEL

Defendants

MARTINEZ JUAN

IBRAHIM JOSEPH

SCI AW COLLISION

Attorney/Law Firm Details

Plaintiff Attorneys

BOYAJIAN ERIC ALBERT ESQ.

HENNIG ROBERT ALAN ESQ.

RUIZ BRANDON K

ZARGARIAN AMARAS

Defendant Attorneys

LONG CHRISTINE HEATHER

WILSON DENNIS PATRICK ESQ.

WHITE ALESHIA MAE

 

Court Documents

Proof of Service -

6/18/2018: Proof of Service -

NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA TO HUNTINGTON MEDICAL FOUNDATION AND FOR SANCTIONS IN TILE AMOUNT OF $2,917.50; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF BR

4/11/2018: NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA TO HUNTINGTON MEDICAL FOUNDATION AND FOR SANCTIONS IN TILE AMOUNT OF $2,917.50; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF BR

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE JULY 11, 2019 OSC HEARING RE: DISMISSAL; [PROPOSED] ORDER

6/10/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE JULY 11, 2019 OSC HEARING RE: DISMISSAL; [PROPOSED] ORDER

Proof of Service (not Summons and Complaint)

6/13/2019: Proof of Service (not Summons and Complaint)

Notice of Ruling

8/8/2019: Notice of Ruling

Proof of Service by Mail

8/8/2019: Proof of Service by Mail

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

8/9/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

9/23/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Notice - NOTICE OF CONTINUED HEARING ON OSC RE DISMISSAL

9/24/2019: Notice - NOTICE OF CONTINUED HEARING ON OSC RE DISMISSAL

Motion re: - MOTION RE: ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6

10/11/2019: Motion re: - MOTION RE: ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6

Application - APPLICATION TO FILE PORTIONS OF PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT UNDER SEAL [C.R.C., RULE 2.551]

10/11/2019: Application - APPLICATION TO FILE PORTIONS OF PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT UNDER SEAL [C.R.C., RULE 2.551]

Proof of Service (not Summons and Complaint)

10/11/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

10/17/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

10/17/2019: Proof of Service (not Summons and Complaint)

Notice of Lodging - NOTICE OF LODGING OF THE UNREDACTED VERSION OF PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND DECLARATI

10/17/2019: Notice of Lodging - NOTICE OF LODGING OF THE UNREDACTED VERSION OF PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND DECLARATI

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING ON PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND CONCURRENTLY FI

10/18/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING ON PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND CONCURRENTLY FI

Opposition - OPPOSITION TO PLAINTIFF'S EX PARTE

10/22/2019: Opposition - OPPOSITION TO PLAINTIFF'S EX PARTE

Order - ORDER RE: PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING ON PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND CONCURRE

10/23/2019: Order - ORDER RE: PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING ON PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT ON SETTLEMENT PURSUANT TO CAL. CODE OF CIV. PROC. 664.6 AND CONCURRE

149 More Documents Available

 

Docket Entries

  • 05/25/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Vacated by Court

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  • 04/06/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Vacated by Court

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  • 03/15/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion - Other (DEFENDANT JUAN MARTINEZ'S NOTICE OF JOINDER AND JOINDER IN DEFENDANT AW COLLISION SCI?S MOTION TO DISMISS PURSUANT TO THE COURT?S ORDER AT THE JANUARY 24, 2020 TRIAL SETTING CONFERENCE) - Not Held - Continued - Court's Motion

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  • 03/08/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion - Other (of Joinder to Defendant AW Collision's MOTION TO DISMISS PURSUANT TO THE COURT?S ORDER AT THE JANUARY 24, 2020 TRIAL SETTING CONFERENCE) - Not Held - Continued - Court's Motion

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  • 11/10/2020
  • Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Jury Trial ((5-6 day est.)) - Not Held - Vacated by Court

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  • 11/09/2020
  • Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Jury Trial ((5-6 day est.)) - Not Held - Continued - Court's Motion

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  • 10/27/2020
  • Docketat 09:00 AM in Department 26, Elaine Lu, Presiding; Final Status Conference ((JT 11/10/2020)) - Not Held - Vacated by Court

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  • 09/29/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Further Discovery Responses (MOTION TOCOMPEL FURTHER RESPONSES TOREQUESTS FOR ADMISSION (SET ONE)AND FORM INTERROGATORIES?GENERAL AND FOR SANCTIONS IN THEAMOUNT OF $5,760.00 AGAINSTDEFENDANT JUAN MARTINEZ AND HISATTORNEYS OF RECORD) - Not Held - Vacated by Court

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  • 09/24/2020
  • DocketNotice of Ruling; Filed by AW COLLISION SCI (Defendant)

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  • 09/22/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion - Other (DEFENDANT JOSEPH IBRAHIM?S NOTICE OF JOINDER AND JOINDER IN DEFENDANT AW COLLISION SCI?S MOTION TO DISMISS PURSUANT TO THE COURT?S ORDER AT THE JANUARY 24, 2020 TRIAL SETTING CONFERENCE) - Held

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241 More Docket Entries
  • 11/08/2017
  • DocketNOTICE OF CHANGE OF ADDRESS AND PHONE NUMBERS OF THE LAW OFFICES OF ERIC A. BOYAJIAN

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  • 11/08/2017
  • DocketNotice of Change of Address or Other Contact Information; Filed by Plaintiff/Petitioner

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  • 10/25/2017
  • Docketat 3:00 PM in Department 42; (Affidavit of Prejudice; Court makes order) -

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  • 10/25/2017
  • DocketMinute Order

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  • 10/25/2017
  • DocketMinute order entered: 2017-10-25 00:00:00; Filed by Clerk

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  • 10/12/2017
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by MICHAEL ABKARIAN (Plaintiff)

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  • 10/12/2017
  • DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC 170.6)

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  • 10/06/2017
  • DocketSUMMONS

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  • 10/06/2017
  • DocketComplaint; Filed by MICHAEL ABKARIAN (Plaintiff)

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  • 10/06/2017
  • DocketCOMPLAINT FOR: 1. UNPAID OVERTIME WAGES; ETC

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Tentative Rulings

Case Number: ****8654    Hearing Date: September 22, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

 

Superior Court of California

County of Los Angeles

Department 26

michael abkarian,

Plaintiff,

v.

aw collision sc1; joseph ibrahim; juan martinez; et al.,

Defendants.

Case No.: ****8654

Hearing Date: September 22, 2020

[TENTATIVE] order RE:

defendants Juan Martinez and joseph ibrahim’s Motion to dismiss

Background

On October 10, 2017, plaintiff Michael Abkarian (“Plaintiff”) filed the instant action against defendants AW Collision SC1 (“AW”), Joseph Ibrahim (“Ibrahim”), and Juan Martinez (“Martinez”) (collectively “Defendants”) for claims arising from Plaintiff’s employment with AW. On May 6, 2019, Plaintiff filed a notice of settlement as to the entire case noting that a request for a dismissal would be filed no later than August 2, 2019. No dismissal was filed. On October 11, 2019, Plaintiff filed a motion for entry of judgment pursuant to the settlement agreement against AW. On November 25, 2019, Plaintiff’s motion for entry of judgment was granted. In the November 25, 2019 order, the Court continued the OSC re-dismissal as to the remaining defendants to December 24, 2019, which was continued to January 24, 2020. (Minute Order 12/24/19.) On December 16, 2019, the court entered judgment against AW.

At the January 24, 2020, hearing the court requested briefing as to whether the November 25, 2019, order entering judgment pursuant to the settlement agreement under Code of Civil Procedure ; 664.6 also required dismissal of Ibrahim and Martinez.

On August 26, 2020, AW filed the instant motion pursuant to the January 24, 2020 request.[1] (Long Decl. ¶ 5.) Defendants Ibrahim and Martinez filed joinders on September 1, 2020, and August 28, 2020 respectfully. On September 11, 2020, Plaintiff filed an opposition. On September 15, 2020, AW filed a reply.

Request for Judicial Notice

Defendants request judicial notice of:

  1. Complaint filed by Plaintiff Michael Abkarian on October 6, 2017;

  2. Notice of Settlement Filed by Plaintiff Michael Abkarian on May 6, 2019;

  3. Plaintiff Michael Abkarian’s Motion for Entry of Judgment pursuant to California Code of Civil Procedure ; 664.6; Declaration of Eric A. Boyajian in Support Thereof filed on October 11, 2019;

  4. Settlement Agreement attached to Declaration of Eric A. Boyajian in Support of Plaintiff’s Motion for Entry of Judgment pursuant to California Code of Civil Procedure ; 664.6 filed October 11, 2019;

  5. Ex Parte Application for an Order Advancing the Hearing on Plaintiff’s Motion for Entry of Judgment on Settlement Pursuant to California Code of Civil Procedure ; 664.6 filed by Plaintiff Michael Abkarian on October 18, 2019;

  6. Court’s Minute Order dated November 25, 2019 re: Hearing on Motion to Enforce Settlement; Order to Show Cause;

  7. Notice of Ruling on Plaintiff’s Motion for Entry of Judgment on Settlement Pursuant to California Code of Civil Procedure ; 664.6 filed by Plaintiff Michael Abkarian on November 27, 2019;

  8. Court’s Minute Order dated January 24, 2020 re: Trial Setting Conference as to the Remaining Defendants; and

  9. Notice of Ruling at Trial Setting Conference filed by Plaintiff Michael Abkarian on January 27, 2020.

Defendants make these requests pursuant to Evidence Code section 452, subdivision (d)(1). Plaintiffs do not oppose.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, ; 450.) Evidence Code section 452 lists matters that are subject to judicial notice, which includes records of any court of this state. (Id., ; 452(d)(1).)

In regard to the documents for which the Court grants judicial notice, the court is not mandated to accept the truth of its their contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Accordingly, the Court grants Defendants’ unopposed requests for judicial notice.

Legal Standard

Code of Civil Procedure ; 664.6 provides that “[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.” In ruling on a motion to enter judgment the trial court acts as a trier of fact. It must determine whether the parties entered into a valid and binding settlement. To do so it may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.) The Court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the Court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).

Pursuant to the court's inherent power to correct “clerical mistakes in its judgments” (CCP ; 473(d)), the court may correct a judgment entered pursuant to Code of Civil Procedure ; 664.6 that fails to conform to the settlement agreement. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673.)

Discussion

Defendants contend that the entry of judgment pursuant to the settlement agreement requires the dismissal of Defendants Ibrahim and Martinez pursuant to the settlement agreement. Plaintiff opposes contending that dismissal of Defendants Ibrahim and Martinez is conditional on Defendant AW’s payment of the judgment amount.

“[W]hen a settlement pursuant to a stipulated judgment disposes of the entire case, a dismissal of the action generally follows as a matter of law.” (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1155.) When dismissal is mandatory “each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.” (Cal. Rules of Court, rule 3.1385(b).) “If the settlement agreement conditions dismissal of the entire case on the satisfactory completion of specified terms that are not to be performed within 45 days of the settlement, including payment in installment payments, the notice of conditional settlement served and filed by each plaintiff or other party seeking affirmative relief must specify the date by which the dismissal is to be filed. [¶] … If the plaintiff or other party required to serve and file a request for dismissal within 45 days after the dismissal date specified in the notice does not do so, the court must dismiss the entire case unless good cause is shown why the case should not be dismissed.” (Cal. Rules of Court, rule 3.1385(c)(1-2).)

Accordingly, the court turns to the settlement agreement to determine whether the dismissals of Defendants Ibrahim and Martinez was conditional. The settlement agreement in relevant part states:

3. Dismissals. Within five days of Plaintiff's counsel’s receipt of the total Settlement Payment described in Paragraph I of this Agreement, Plaintiff will file or cause to be filed a Request to Dismissal of the Entire Action with prejudice all of remaining claims alleged in the Action, each Party bearing their own attorneys' fees and costs.

4. Acknowledgement of Payment of All Compensation. Plaintiff acknowledges and agrees that upon the receipt of the Settlement Payment described in Paragraph 1 of this Agreement, he and his counsel will have been paid in full all amounts owed by Defendant to Plaintiff that said payments constitute a full and complete accord and satisfaction of any and all claims of Plaintiff, and that said Plaintiff is entitled to no other compensation or payment, including without limitation, in the form of salary, commissions, bonuses, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other compensation or earnings, emotional distress damages, physical injury damages, and punitive damages, and that he has no claims at all of any kind, including claims for discrimination, retaliation, harassment, wrongful termination, breach of contract or covenant, Labor Code claims, Fair Employment and Housing Act claims, wages, liquidated damages, attorneys' fees or costs, against Defendant and/or Released Parties (defined in Paragraph 6 of this Agreement).

6. Release of Claims.

Plaintiff releases, remises and forever discharges, Juan Martinez, Joseph, Ibrahim, AW Collision SC 1 and any of their/its related or affiliated entities, and each of their respective past and present shareholders, owners, officers, directors, members, consultants, employees, attorneys, heirs, successor, assigns and agents (“Released Parties”), of and from any and all claims, demands, express or implied contract rights, actions, causes of action, charges, debts, demands, damages, liabilities, costs, attorneys' fees, and/or expenses of any kind, nature, and character, at law or in equity, accrued or inchoate, arising under any federal, state or other law, whether known or unknown, filed or otherwise, sounding in discrimination, harassment, tort, contract, equity, or otherwise, including, but not limited to, foreseen or unforeseen, disclosed or undisclosed, anticipated or unanticipated, and expected or unexpected claims, damages, losses, costs, expenses, and liabilities and consequences thereof that Plaintiff has had, now has or may have, for any reason whatsoever against the Released Parties (“Released Claims”).

(Request for Judicial Notice [“RJN”] 4 [italics added].)

Pursuant to paragraph 3 of the settlement agreement, Plaintiff’s filing of a request for dismissal of the action was conditioned upon payment of the settlement amount. However, Plaintiff has failed to demonstrate good cause why dismissal should not be entered following his filing of the notice of settlement. (Cal. Rules of Court, rule 3.1385(c)(2).)

Here, the settlement agreement expressly releases all claims against Defendants Ibrahim and Martinez under paragraph 6 of the settlement agreement. Plaintiff’s contention that this release is conditional upon payment under paragraph 4 is unavailing. Paragraph 4 merely states that payment of the settlement amount will “constitute a full and complete accord and satisfaction of any and all claims of Plaintiff, … against Defendant and/or Released Parties (defined in Paragraph 6 of this Agreement).” (RJN 4.) Contrary to Plaintiff’s contention, paragraph 4 does not condition the release of claims against Defendants Ibrahim and Martinez as stated in paragraph 6 of the agreement. Nor does the language of paragraph 6 condition the release of claims against Defendants Ibrahim and Martinez on payment or any other term. Accordingly, as all claims have been released against Defendants Ibrahim and Martinez there is no good cause to not enter the dismissal of these defendants.

Plaintiff has waived his argument that the court should not enforce the release as illegal, contrary to public policy, or unjust. In entering judgment pursuant to Code of Civil Procedure ; 664.6 “the court [is] not permitted to modify the existing settlement agreement without the mutual consent of the parties.” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1375.) Rather the court must “either approve or reject the proposed settlement and consent judgment.” (Id. at pp.1376–1377.) Plaintiff is the party who moved for enforcement of the Settlement Agreement and urged the court to treat the payment terms of the Settlement Agreement as akin to entry of judgment. Having done so, Plaintiffs fail to explain why the payment terms should not be treated as akin to entry of judgment for all purposes, including the dismissal of Defendants Ibrahim and Martinez. As the court has already granted Plaintiffs’ motion to enter judgment pursuant to the terms of the settlement agreement, the court will not now adopt a modified reading of the settlement agreement.

As the court finds that Plaintiff fails to demonstrate good cause not to dismiss Defendants Ibrahim and Martinez under California Rules of Court, Rule 3.1385(c)(2), the Court declines to address Defendants’ additional arguments.

Conclusion and order

Based on the foregoing above, Defendants Joseph Ibrahim and Juan Martinez are dismissed with prejudice.

Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: September 22, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] In opposition, Plaintiff contends that AW does not have standing to bring this motion as judgment has been entered against them. The court disagrees. The Court specifically requested briefing on this issue. Moreover, Defendants Martinez and Ibrahim, against whom judgment has not been entered against, have filed joinders to the instant motion.



Case Number: ****8654    Hearing Date: November 25, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

MICHAEL ABKARIAN,

Plaintiff,

v.

AW COLLISION SCI, et al.,

Defendants.

Case No.: ****8654 [Related to BC675725]

Hearing Date: November 25, 2019

[TENTATIVE] order RE:

Plaintiff michael abkarian’s Motion for entry of judgment on settlement pursuant to C.C.P. ;664.6

BACKGROUND

On October 6, 2017, Plaintiff Michael Abkarian (“Plaintiff”) filed a complaint against Defendants AW Collision SCI, Joseph Ibrahim, and Juan Martinez (collectively “Defendants”), asserting causes of action for unpaid overtime wages, meal period violations, rest period violations, failure to reimburse necessary business expenses, failure to provide accurate wage statements, failure to provide wages due upon discharge, harassment, failure to prevent discrimination and harassment, employment discrimination, wrongful constructive discharge, retaliation, and unfair business practices.

On November 29, 2017, Defendant AW Collision SCI filed an answer to the complaint.

On December 16, 2017, Defendant Joseph Ibrahim filed an answer to the complaint.

On December 18, 2017, Defendant Juan Martinez filed an answer to the complaint.

On May 6, 2019, Plaintiff filed a Notice of Settlement of the Entire Case.

On October 11, 2019, Plaintiff filed a motion for entry of judgment on settlement against defendant AW Collision SCI (“Defendant AW”), pursuant to C.C.P. ;664.6, along with an application to file portions of the motion under seal. The motion was noticed for hearing on May 27, 2020.

On October 23, 2019, the Court granted Plaintiff’s ex parte application and advanced the hearing on the motion to enforce settlement and application to file under seal to November 25, 2019.

On November 12, 2019, Defendant AW filed an opposition to the motion. On November 18, 2019, Plaintiff filed a reply. On November 21, 2019, Defendant AW filed a surreply.[1]

Legal Standard

C.C.P. ;664.6 provides that “[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.” In hearing a C.C.P. ;664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment. (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.) The Court may also receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.) The Court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the Court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).

Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (; 664.6) or was made orally before the court. [Citation.]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304.)

The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) “Parties” under CCP ; 664.6 means the litigants themselves, and not their attorneys, must expressly consent to settlement. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 [“we conclude that the term ‘parties’ as used in section 664.6…means the litigants themselves, and does not include their attorneys of record”].)

DISCUSSION

Plaintiff moves for an order entering judgment against Defendant AW Collision SCI (“Defendant AW”) based on the parties’ written and signed settlement agreement, pursuant to C.C.P. ;664.6.

Application to File Under Seal

As a preliminary matter, Plaintiff’s application to file portions of the instant motion under seal is denied.

The Court may order a record sealed if it finds that (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the request is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d).)

Plaintiff seeks to seal all references to the dollar amounts of the settlement payments agreed upon by the parties in their settlement agreement. (Application, pg. 2.) However, Plaintiff’s application is not accompanied by a declaration containing facts sufficient to justify the sealing. (See CRC 2.550(d) and 2.551(b)(1).) Plaintiff only filed the application to comply with the Stipulation and Protective Order. (Declaration of Zargarian ¶2; Exhibit 1.) (Application, pg. 3.) However, the “court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (CRC 2.551(a).) Moreover, Plaintiff essentially concedes that the application to seal is unsupported. The application provides, in pertinent part, as follows: “Plaintiff does not believe the factors listed in Rule 2.550 are met here, as any judgment entered by this Court enforcing the terms of the parties’ settlement agreement would presumably reference the dollar amounts of the settlement payments agreed to by the parties” and, as such, “this information will ultimately become available in the public record, whether or not this application to seal is granted.” (Application, pg. 3.) Nor does Defendant AW’s surreply establish the necessary factors under Cal. Rules of Court, rule 2.550(d).

Thus, Plaintiff’s application to file portions of the instant motion under seal is denied. Plaintiff is ordered to publicly file its unredacted motion to enforce settlement unless prior to the hearing on this motion Defendant files and serves supplemental briefing and evidence from which the Court may find the necessary factors under Cal. Rules of Court, rule 2.550(d).

Motion to Enforce Settlement

Plaintiff is entitled to an order, pursuant to C.C.P. ;664.6, entering judgment against Defendant AW in accordance with the terms of terms of the parties’ settlement agreement. Plaintiff has submitted evidence that the parties entered into a written settlement agreement on April 26, 2019. (Declaration of Boyajian ¶2; Exhibit A.) The settlement agreement is signed by Plaintiff and Defendant AW (via Ben Lamond). (Declaration of Boyajian ¶2; Exhibit A.) Defendants agreed to pay $160,000.00 in settlement funds after receipt of Plaintiff’s executed agreement. (Declaration of Boyajian ¶2; Exhibit A.) Per the agreement, the settlement would be paid within 90 days. The parties agreed $5,000.00 of the settlement funds would be characterized as wages and $155,000.00 of the settlement funds would be paid to Plaintiff’s attorney in the form of a check payable to Law Offices of Eric Boyajian Lawyer Trust Account. (Declaration of Boyajian ¶2; Exhibit A.) The settlement agreement contains all material terms. (Declaration of Boyajian ¶2; Exhibit A.) Plaintiff filed a Notice of Settlement of Entire Case on May 3, 2019. (Declaration of Boyajian ¶3; Exhibit B.) Defendant AW has not paid the settlement funds. (Declaration of Boyajian ¶¶4-10; Exhibits C-H.)

In opposition, Defendant AW represents it “is not intentionally avoiding the payment of the settlement in this case,” “Plaintiff’s counsel is aware of Defendant’s financial situation and the need to secure funding, which required a set total dollar amount and a payment plan in the class action matter,” and Plaintiff filed an unnecessary motion to increase attorneys’ fees. (Opposition, pg. 3.) However, Defendant AW’s motion is not supported by admissible evidence. Defendant AW does not provide the Court with a declaration explaining why the settlement funds have not been timely paid, identifying the efforts made by Defendant AW, if any, to secure funding for payment of the settlement, and providing a timeline for payment of the settlement funds. Nor does Defendant AW point the Court to any provision within the settlement agreement that establish a contingency for the settlement payments or that justify a delay of payment beyond 90 days.

The opposition states that it “is the expectation of Defense counsel that [delivery of the funds] will be completed before the time for hearing on this motion.” (Opposition, pg. 3.) However, Defendant has produced no evidence of such payment prior to the hearing on this motion. Accordingly, Plaintiff’s motion is granted.

CONCLUSION AND ORDER

Plaintiff’s application to file portions of the motion for entry of judgment on settlement pursuant to C.C.P. ;664.6 under seal is denied.

Plaintiff’s motion for entry of judgment on settlement pursuant to C.C.P. ;664.6 is granted. Judgment shall be entered in favor of Plaintiff Michael Abkarian and against defendant AW Collision SCI in the amount of $160,000.

Plaintiff is ordered to provide notice of this order, and file proof of service of such within five days.

DATED: November 25, 2019 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Defendant did not seek leave to file a surreply. Nonetheless, the Court will, in its discretion, consider all briefing, including Defendant’s surreply.



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