Amkor Construction Services, Inc. vs. Sally I. Kim

Motion - Other

Cal. Super. - 4th Dist.September 18, 2014

O O 0 0 N N S N v n RA R W N D N O N D N N N N N N D N o m o m e m e m e m e m e e e e e a 0 0 N N O Y L n H A W N = O O V O 0 0 N D EA E W N = O o Edward W. Choi, SBN. 211334 Paul M. Yi, Esq. SBN 207867 LAW OFFICES OF CHOI & ASSOCIATES, APLC 3435 Wilshire Blvd., Suite 2400 Los Angeles, CA 90010 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Attorneys for Plaintiff/Cross-Defendants AMKOR CONSTRUCTION SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER - UNLIMITED CIVIL AMKOR CONSTRUCTION SERVICES, INC.,) Case No.: 30-2014-00746035-CU-CO-CJC a California corporation, . RESERVATION NO. 72284767 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTS AND AUTHORITIES VS. SALLY I. KIM, M.D., an individual; and DOES 1 to 10 inclusive, Defendants. Date: March 28, 2016 Time: 10:30 A.M. Dept: C26 SALLY I. KIM, M.D., an individual, Cross-Complainant, [C.C.P. § 664.6] VS. N m N u a N a w a t N t w w “ w t “ w a t “ w a t “ w t “ w a t “ w a t “ w a t t “ w a t “ w a t “ w w s t “ w s ? “ s t (Assigned for all purposes to the Hon. Gregory AMKOR CONSTRUCTION SERVICES, INC.,) H. Lewis, Department C26) a California Corporation; BRIAN KIM, an individual; and ROES 1 to 10, inclusive, Cross-Defendants. ) ) ) ) ) TO THE COURT AND TO DEFENDANTS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on March 28, 2016 at 10:30 a.m. or as soon thereafter as the matter may be heard in Department C26 of the Orange County Superior Court, located at PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 1 - - N N N N N O N O N N O N m m m m m d p m e m m m m t em t m d e b 0 0 9 O& O W n A W N = O 0 0 N N N N A W N N - ~ O o © © N A Un A W N 700 W. Civic Center Drive, Santa Ana, California, Plaintiff/ Cross-Defendants AMKOR CONSTRUCTION SERVICES, INC. (hereafter referred to as “Plaintiff”), will and hereby move this Court for an order entering judgment, against Defendant SALLY I. KIM, M.D., (hereafter referred to as “Defendant™) pursuant to a written Settlement Agreement (“Agreement”) signed by Plaintiff and Defendants on August 14, 2015. The grounds for this application are that Plaintiff and Defendants entered into a written settlement agreement where Defendants agreed to pay Plaintiff Seventeen Thousand Five Hundred Dollars ($17,500.00) payable in one lump sum. As a condition ofthe Settlement, Defendant was to sign a long form settlement agreement, which it has refused to do. Instead, Defendant is demanding that the settlement terms be changed and refuses to proceed with the settlement, as stated and agreed to. Thus, Plaintiffbrings the instant motion to enforce the settlement agreement. This motion will be based on this notice and the attached memorandum of points and authorities, Declaration of Edward W. Choi (“Choi Decl.”), the Agreement, and upon such oral and documentary evidence that may be presented at the hearing of said motion Dated: December 10, 2015 Respectfully submitted, LAW OFFICES OF CHOI & ASSOCIATES Edward W. Choi, Esq. Attorneys for PlaintiffAMKOR CONSTRUCTION SERVICES, INC. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 2 - O O 0 0 N N O N v n H h W N N O N N N N N N O N O N O N r m m m oe m e m mm m b m p b p m p t 0 0 3 O N U n B R A W N = O 0 N N N BR E W N = o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Plaintiff/Cross-Defendant AMKOR CONSTRUCTION SERVICES, INC. (“AMKOR” or “Plaintiff”) is a general contractor providing construction services for Defendant SALLY I. KIM, M.D. (“KIM” or “Defendant™) On September 18, 2014, Plaintiff filed the instant Complaint against Defendant for (1) breach of written contract; (2) breach oforal contract; (3) open book account; and (4) quantum meruit for Defendant's failure to pay the balance ofthe original construction contract and failure to pay the monies due for change orders that were approved during the construction. (Declaration of Edward W. Choi (“Choi Decl.”) 2). Defendant filed a Cross Complaint alleging one cause of action for Breach of Contract against PlaintiffAMKOR CONSTRUCTION SERVICES, INC. and its president, Brian Kim. (Choi Decl. 3) The trial date was originally set for September 28, 2015. (Id. at 4) Essentially, this litigation is about Defendant KIM’s wish to “have her cake and eat it too.” On the one hand, KIM requested and approved multiple change orders (usually through her husband, Rollin Kawakita); but on the other hand, KIM refuses to pay for change orders on the basis that the change orders were not approved in writing. Moreover, Defendant KIM demanded that the construction be completed with the change orders, but refused to pay for the construction that was performed. Defendant KIM also refused to pay for the construction, even after the Certificate of Occupancy was obtained, and yet demanded that the “punch list” items be finished. Finally, Defendant KIM refused to allow the “punch list items” to be completed, refused to pay the balance of the initial construction contract and change orders. Plaintiff demanded $ 34,156.00. (Choi Decl. §2) After numerous emails, phone calls and letters that went completely ignored, AMKOR was forced to file this instant litigation. After AMKORfiled the instant Complaint against Defendant, for the first time, Defendant alleged that there were alleged defects existing in the building. Plaintiff and Defendant exchanged written discovery. Plaintiff took KIM’s deposition. In Defendant’s Response to Demand for Production of Documents, Defendant provided verified discovery responses that she alleged there PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 3 - O O 0 N N S N n n b s W N N O N N N N O N O N N O N m m e m e d m d b m e m b e e d e d e d 0 0 N N O A W n B A W N = O O V v 0 0 N Y A W N - = O o were 18 different defects with the construction and that her total damages as a result of Plaintiff's negligence was $128,713.50. (Choi Decl. 5) On August 14, 2015,the parties engaged in a full day mediation with well respected mediator Kenneth Gibbs, Esq. ofJAMS. (Choi Decl. 6) After almost a full day in mediation, the parties were at an impasse that lead to the mediator making a mediator’s proposal. (/d.) The parties agreed to accept the proposal and enter into a binding settlement with a few handwritten conditions imposed. (/d.) (Choi Decl. §7; Exhibit A). The Settlement Agreement called for the Defendant to pay Plaintiff Seventeen Thousand Five Hundred Dollars ($17,500.00) based on the following conditions: 1. AMKOR will repair the roof drains; 2. AMKORwill repair the HVAC; and 3. Third party neutral will sign offon the repairs. On September 9, 2015, Defendant filed a Notice of Conditional Settlement wherein a Request for Dismissal would be filed no later than December 31, 2015. (Choi Decl. 8; Exhibit B) On September 17, 2015, Plaintiff emailed Defendant a long form Settlement Agreement. (/d. at 9) Defendant made revisions and emailed Plaintiffon the same date with its revision. (/d. at 99) On October 7, 2015, Plaintiff provided the names of 3 different contractorsto utilize as a third party neutral. (/d. at 10) On November 11, 2015, Defendant agreed to utilizing Kana Design to approve the repairs. (/d. at §11)Plaintiff provided a final long form Settlement Agreement to Defendant on November 23, 2015. (/d. at 12) Thereafter, Plaintiff emailed Defendant requesting status on the signing ofthe long form settlement agreement on several occasions. (/d. at 12) On December 8, 2015, Defendant emailed Plaintiff and demanded that Plaintiff, instead ofrepairing the roof drains, essentially replace the entire roof! Plaintiff obviously objected to the changing of a material term to the settlement. (/d. at 13) Defendant continues to refuse to sign the long form Settlement Agreement, to finalize the settlement and proceed forward with the settlement. Thus, Plaintiff was compelled to file the instant motion. i" 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 4 - O O 0 0 9 O N w n b h W N N O N N N N O N N N O N r t o m m t p d p d p t em t p d p m e t 0 N N O N n A W N = O V O N S N R A W N y = O IL. ARGUMENT A. CODE OF CIVIL PROCEDURE SECTION 664.6 AUTHORIZES THE COURT TO ENTER JUDGMENT AGAINST DEFENDANTS AND FOR PLAINTIFF Code of Civil Procedure section 664.6 provides, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence ofthe court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enterjudgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction overthe parties to enforce the settlement until performance in full of the terms of the settlement.” (Emphasis added.) Section 664.6 provides a summary procedure by which the trial court can specifically enforce an agreementsettling pending litigation without the need of a second lawsuit. (Kirby v. Southern Cal. Edison (2000) 78 Cal.App.4th 840, 843.) Thelast line of the Settlement Agreement states that “Ifboth sides say yes, we have a deal; if both side say no, we don’t. If one side says yes and one side says no the side saying no will not be informed that the other side said yes. I will onlystate that there is no settlement.” There is no dispute that both sides said “yes”. Indeed, the parties included 4 additional terms to the mediator’s proposal and both sides signed the proposal evidencing their acceptance of the settlement. Thus, the court may enforce this agreement pursuant to C.C.P. §664.6. B. A VALID SETTLEMENT AGREEMENT EXISTS A settlement agreementis a contract, and the legal principles which apply to contracts generally apply to settlement contracts. Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal. App. 4th 724, 732. “In order for acceptance of a proposal to result in the formation of a contract, the proposal ‘must be sufficiently definite, or must call for such definite terms in the acceptance,that the performance promised is reasonably certain.” (/d. at 734) Here, the settlement agreement provides all of the essential terms ofthe settlement. Defendant Sally Kim, M.D.is to pay Amkor the sum of $17,500.00. AMKORis to repairthe roof drains and HVAC. A third party neutral is to sign off on the repairs. Both AMKOR and Sally Kim signed the agreement. There are no uncertain terms. PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 5 - © 0 N N O& O W n A W N N O N N O N D N N O N N N m m m m m d m t m t pe t m d p m e d e d C 0 N N O N n n A W N = O O 0 0 N N N N E E W N = O C. DEFENSE COUNSEL’S FILING OF THE NOTICE OF SETTLEMENT SUPPORTS THE PARTIES MUTUAL AGREEMENT THAT A SETTLEMENT EXISTS Code of Civil Procedure §128.7 (b)states: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice ofmotion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials offactual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” Defendant’s attorney filed a Notice of Conditional Settlement on September 9, 2015. Defendant’s filing ofthe Notice of Conditional Settlement caused the court to vacate the trial date and set an Order to Show Cause Hearing to be set for January 25, 2016. By signing the Notice of Settlement, Defendant’s attorney attested to this Court that this matter had been settled. Thus, in the event that Defendant’s attorney alleges, in his Opposition, that there was no settlement, he has violated C.C.P. §128.7 and should be sanctioned for his false statement made to this Court. nn I n PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 6 - O O 0 0 N N O& O w n A W N N N D N D N N N N N N N m m e m e s e t e m e m em t e b e e t 0 0 N N O N W n R A W N = O 0 0 N Y D W N = o III. CONCLUSION For the foregoing reasons, the Court should grant Plaintiff's motion and enterjudgment in favor of Plaintiffand against Defendant SALLY I. KIM, M.D.in the amount of $17,500.00. Dated: December 10, 2015 Respectfully submitted, LAW OFFICES OF CHOI & ASSOCIATES BY: Ape!We Edward W. Choi. Attorneys for PlaintiffAMKOR CONSTRUCTION SERVICES, INC. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENTAGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF EDWARD W. CHOI - 7 - OF I am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 3435 Wilshire Boulevard, Suite 2400, Los Angeles, California 90010-2006. On December 15, 2015, I served the foregoing document(s) described as: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER ENFORCING SETTLEMENT AGREEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6; MEMORANDUM OF POINTS AND AUTHORITIESon the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: Sonny Koo, Esq. Law Offices of Sonny H. Koo 19800 MacArthur Blvd., Suite 300 Irvine, CA 92612 _X BY MAIL _x_ As follows: Iam “readily familiar” with the practice ofChoi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course ofbusiness. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices ofthe addressee. BY ELECTRONIC SERVICE I caused a true and complete copy ofthe document(s) described above to be transmitted by uploaded to One Legal to be served on the offices ofthe addressees. ___X___ (State) I declare under penalty ofperjury that the foregoing is true and correct. (Federal) I declare under penalty ofperjury that the foregoing is true and correct, and that I am employed in the office ofa member ofthe bar ofthis Court at whose direction the service was made. Executed on December 15, 2015, at Los Angeles, California. lpr Christine Choo PROOF OF SERVICE