Red & White Distribution v. Osteroid Enterprises, 2019 WL 3759458 (Aug 2019)
Issue: Did the settlement agreement here include an unenforceable penalty for non-payment of the settlement amount?
Holding: Yes.
A lender, Osteriod, sued a borrower, R&W. The borrower cross-complained. “The parties then settled all claims for $2.1 million pursuant to a ‘Payment Agreement.’” They also executed a “stipulation for entry of judgment” which provided “in the event of a default on the payment plan, R&W is ‘liable to pay $2,800,000 to the Osteroid Parties, plus interest… reduced by any payments [made].’” R&W defaulted and Osteriod sought and obtained a default judgment for $3.6 million.
The court of appeals reversed as to the amount holding that the additional sum of $700,000 upon default was an unenforceable penalty under Civil Code section 1671 and the Supreme Court of California case of Ridgley v. Topa Thrift & Loan Assn. 17 Cal.4th 970 (1998). “In this case, the stipulated judgment for $2.8 million bears no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of the agreement to settle the dispute for $2.1 million. “[D]amages for the withholding of money are easily determinable—i.e., interest at prevailing rates ….” “The judgment, however, provided for interest at the legal rate from the date of the execution of the stipulated judgment, attorneys’ fees to enforce the judgment, plus $700,000 more than the parties agreed to in their settlement agreement. This additional $700,000 was an unenforceable penalty.”
The court makes an important comment at the end:
“Had the parties intended to settle for $2.8 million, but apply a discount for timely payments, they could have done so expressly. The parties could have, but did not, include terms in the agreement stating R&W is liable to pay the Osteroid Parties $2.8 million, but so long as all payments are timely made in accordance with the payment schedule, the amount due shall be discounted to $2.1 million.”