Settlement Material Breach - Non-Payment - Retail Property Termination Dispute.

[KdCrandall]

I recently settled a retail property eviction matter in California. It stipulates that the other party would pay two sums within 72 hours of the effective date of the settlement but has not done so and hasn't responded to my emails reminding him of his performance obligations. Does anyone know of a CA case law that speaks to this? BTW - My obligations under the settlement are to dismiss my pending lawsuit with prejudice five days after receiving payment and to vacate the property by 10/31/24 and any property left after that day would be considered abandoned. I do not have a Lawer; so, I will be handling my complaint myself.

 

[quincy]

I recently settled a retail property eviction matter in California. It stipulates that the other party would pay two sums within 72 hours of the effective date of the settlement but has not done so and hasn't responded to my emails reminding him of his performance obligations. Does anyone know of a CA case law that speaks to this? BTW - My obligations under the settlement are to dismiss my pending lawsuit with prejudice five days after receiving payment and to vacate the property by 10/31/24 and any property left after that day would be considered abandoned. I do not have a Lawer; so, I will be handling my complaint myself.

“With prejudice” means you cannot file the same claim again but it does not mean you cannot sue for breach of the settlement agreement.

 

[Zigner]

What is the effective date of the settlement?

 

[adjusterjack]

One option is to file a motion for a default judgment for the amount you originally sued for plus your costs.

Send him a copy. If he doesn't respond you get your default judgment and then your judgement can become a lien on his house. You can garnish wages and levy bank accounts. Execute against non-exempts assets.

 

[quincy]

One option is to file a motion for a default judgment for the amount you originally sued for plus your costs.

Send him a copy. If he doesn't respond you get your default judgment and then your judgement can become a lien on his house. You can garnish wages and levy bank accounts. Execute against non-exempts assets.

KdCrandall, did you dismiss your lawsuit? If so, was it dismissed with prejudice?

If you haven’t dismissed your lawsuit, you can return to the same court to enforce the settlement agreement. If you did dismiss your lawsuit, you will need to file a different lawsuit for breach of the settlement agreement.

 

[quincy]

https://casetext.com/statute/california-codes/california-code-of-civil-procedure/part-2-of-civil-actions/title-8-of-the-trial-and-judgment-in-civil-actions/chapter-8-the-manner-of-giving-and-entering-judgment/section-6646-operative-112025

Your legal recourse depends on whether the court signed off on your settlement agreement and dismissed your lawsuit or if the court retained jurisdiction.

 

[LdiJ]

Since his obligation was to dismiss the suit with prejudice 5 days after receiving payment, and he hasn't received payment yet, I am going to guess that the case is not yet dismissed.

I think that one main issue at this point is if he is still obligated to be out by 10/31?

 

[quincy]

A few important facts are definitely missing.

 

[zddoodah]

Does anyone know of a CA case law that speaks to this?

Why do you think case authority is needed or would be of any benefit whatsoever?

Can't intelligently say more than that without knowing what your (hopefully written) settlement agreement says about what happens in the event of default by the other party.

One option is to file a motion for a default judgment for the amount you originally sued for plus your costs.

Send him a copy. If he doesn't respond you get your default judgment and then your judgement can become a lien on his house. You can garnish wages and levy bank accounts. Execute against non-exempts assets.

A couple problems with this. First, we don't know whether seeking a default judgment is appropriate. The OP told us that the other party didn't pay as agreed, but that doesn't tell us anything about whether the other party has been served or whether a responsive pleading is yet due or whether a responsive pleading has been filed. Second, it's not at all clear what the nature of the lawsuit is. It sounds to me like the OP is a tenant who sued his/her landlord, but we don't know what the basis of the suit is.

I think that one main issue at this point is if he is still obligated to be out by 10/31?

Concur. The OP made it clear that his/her obligation to dismiss the lawsuit is contingent on payment being made, but it's not clear whether the failure to pay also negates the obligation to move out.

 

[KdCrandall]

What is the effective date of the settlement?

Effective date was 10/16/24 and as of today 10/21/24, I have not received the settlement payment

 

[KdCrandall]

KdCrandall, did you dismiss your lawsuit? If so, was it dismissed with prejudice?

If you haven’t dismissed your lawsuit, you can return to the same court to enforce the settlement agreement. If you did dismiss your lawsuit, you will need to file a different lawsuit for breach of the settlement agreement.

I have not dismissed my original complaint. Can I amend it to include the breach of the settlement agreement due to non payment?

 

[Zigner]

They're not even late yet. Weekends generally don't count unless your agreement specifically says they will.

 

[zddoodah]

They're not even late yet. Weekends generally don't count unless your agreement specifically says they will.

???

 

[Zigner]

???

Settlement date, 10/16 (Weds.).
24 hours = 10/17 (Thurs.).
48 hours = 10/18 (Fri.).
Skip Sat. & Sun.
72 hours = 10/21 (Today).

Or were you questioning my overall statement that weekends don't generally count?

 

[quincy]

I have not dismissed my original complaint. Can I amend it to include the breach of the settlement agreement due to non payment?

What exactly is the current status of your lawsuit? You filed and served the complaint and the defendant answered the complaint? Have you appeared in court? If so, did a judge sign off on the settlement? If not, has a court date been scheduled?

How different is the relief you were/are seeking in your complaint to what was agreed to in the settlement?

I take it that you received no payment today. Do you still plan to move out by next Thursday or was the move out date contingent upon the two payments and the subsequent dismissal of your lawsuit?