Judge: Douglas W. Stern, Case: 21STCV41477, Date: 2023-09-05 Tentative Ruling

Case Number: 21STCV41477    Hearing Date: September 5, 2023    Dept: 68

First-Citizens Bank & Trust Company vs. Vann Heflin Holdings, Inc, et al., 21STCV41477

Motion to Set Aside and Vacate Dismissal per CCP §§ 187 and 664.6

Motion

            Plaintiff has filed a motion described as a “Motion to Set Aside and Vacate Dismissal per CCP §§ 187 and 664.6.”  The Notice of Motion alerts the opposing party to the fact that Plaintiff seeks the relief of vacating the previously filed dismissal and “to allow Plaintiff to file its Judgment Pursuant to Stipulation.”

            Plaintiff filed this motion because Defendant Stephen Heflin failed to make the payments agreed upon in the parties’ Settlement Agreement from September 2022. Defendant made six payments before the seventh payment was returned on March 28, 2023, for insufficient funds. Plaintiff sent a letter to Defendant allowing him an extra 15 days to submit the payment. He failed to do so. Plaintiff indicates that $26,428.44 is now due and owing based on the terms of the settlement agreement.

            CCP § 664.6 provides for the entry of judgment pursuant to the terms of a settlement agreement:

“(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.”

            The Settlement Agreement provides:

“If payment has not been made within (20) days of the original date when payment was due, then Plaintiff may move this court for a Judgment Pursuant to Stipulation, in accordance with C.C.P, Section 664,6, against Defendants for the amounts stated in paragraph one and less any payments made through that date.” (Booska Decl., Ex A, ¶ 2, p. 4:1-4.)

            Entering an order requested by Plaintiff is not necessary and achieves nothing.  Plaintiff did not need to file a motion to set aside and vacate dismissal.  The Court has the power under CCP § 664.6 to “enter judgment.”

            If Plaintiff wishes to request that the Court enter judgment pursuant to the settlement agreement, Plaintiff need only file a motion requesting that judgment be entered pursuant to the statute and the terms of the settlement agreement. (CCP § 664.6(a).) That was not done. The motion currently before the Court is not a necessary or proper motion for the relief Plaintiff seeks.

ORDER:

            Plaintiff’s motion is DENIED for the foregoing reasons.

            Plaintiff may file a motion seeking entry of judgment pursuant to CCP § 664.6.