Judge: Alison Mackenzie, Case: 21SMCV00462, Date: 2023-05-11 Tentative Ruling

Case Number: 21SMCV00462    Hearing Date: May 11, 2023    Dept: 207

Background

Plaintiff American Express National Bank, successor by merger to American Express Bank, FSB (“Plaintiff”) brought this action against Defendants David Golshirazi, aka David K Goldhirzian, aka David K Goldhirazi, aka David Goldharazi, aka David J Golshirazian, individually and dba Intl Supplie (“Defendants”) seeking to collect alleged amounts due and owing for unpaid credit card services. This action was previously dismissed following the Court’s entry of a stipulation filed by the parties which settled Plaintiff’s claims against Defendants. As part of this settlement, Defendants were required to make monthly payments to Plaintiff or face entry of a stipulated judgment against them. Plaintiff now moves the Court to vacate the dismissal of this action and enter judgment against Defendants, claiming they have failed to make the monthly payments required by the parties’ agreement. Plaintiff’s motion is unopposed.

Legal Standard

Code Civ. Proc. § 664.6 provides a summary procedure that enables judges to enforce a settlement agreement by entering a judgment pursuant to the terms of the parties’ settlement. In particular, the statute provides:

(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.

(C.C.P.¿§ 664.6(a)-(b).)

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.) One of the requirements is that the agreement must be signed by the parties “seeking to enforce the agreement under section 664.6 and against whom the agreement is sought to be enforced.” (Harris v. Rudin, Richman & Appel (1999) 74¿Cal.App.4th 299, 305.) The purpose of this requirement is to “facilitate the summary nature of the proceeding by decreasing the likelihood of misunderstandings and ‘minimiz[ing] the possibility of conflicting interpretations of the settlement.” (Id. [citing Levy v. Superior Court (1995) 10 Cal. 4th 578, 585].)

Analysis

On February 22, 2022, the parties filed a Stipulation for Conditional Entry of Judgment. (Ex. A to Keith Decl.) The stipulation provided for the resolution of Plaintiff’s claims in exchange for Defendants’ payment of $31,740.58, to be made in monthly installment payments of $500. (Id. at ¶1.) In the event Defendants failed to make a monthly payment, Plaintiff agreed to provide written notice by email to Defendants, at which point Defendants would have seven days to cure the default. (Id. at ¶2.) If Defendants failed to timely cure any such default, the parties agreed that Plaintiff could “then obtain a judgment pursuant to Code of Civil Procedure § 664.6 for the entire balance owed by Defendant in the amount of $30,942.28, plus court costs expended, less any payments made to date.” (Id. [emphasis in original].) The parties agreed the Court would retain jurisdiction to enforce the terms of the settlement and stipulation pursuant to Code Civ. Proc. § 664.6. (Id. at ¶4.) On March 10, 2022, the Court entered an order dismissing this action pursuant to the parties’ stipulation and retaining jurisdiction to enforce the stipulation under section 664.6. (Ex. B to Keith Decl.)

On November 29, 2022, Plaintiff sent written notice by email to Defendants that they were in default on their monthly payment obligations under the stipulation. (Ex. C to Keith Decl.) This written notice complies with the notice requirements set forth in the stipulation. (Ex. A to Keith Decl. at ¶2.) Defendants did not timely cure this default within seven days. (Keith Decl. at ¶¶8-12.) Plaintiff now moves to vacate the dismissal of this action and enter judgment against Defendants pursuant to the terms of the parties’ stipulation set forth above. Plaintiff’s motion is unopposed, and Defendants have not contested any of the factual representations made by Plaintiff.

Plaintiff represents Defendants made monthly payments under the stipulation totaling $3,500. (Keith Decl. at ¶9.) Deducting these payments from the $30,942.28 owed to Plaintiff under the stipulation results in an outstanding balance of $27,442.23. (Id. at ¶12.) Plaintiff also seeks to collect $77.66 in court costs incurred in bringing this motion, consisting of $61.65 in motion fees and $16.01 in electronic filing/service fees. (Ex. D to Keith Decl.) The stipulation expressly permits Plaintiff to recover its court costs expended in obtaining a judgment. (Ex. A to Keith Decl. at ¶2.) The Court notes that Plaintiff filed a proposed judgment on May 8, 2023 that instead states that Defendants made a total of $10,000 in payments, and that the amount owed by Defendants is $21,019.94, not $27,442.23.  Plaintiff did not include a reply brief and declaration explaining the discrepancy between the two numbers. The Court invites Plaintiff to explain the discrepancy at the hearing. While the Court concludes that Plaintiff is entitled to the relief sought in the motion, it needs additional information from Plaintiff in order to enter the appropriate order and judgment.