Judge: John J. Kralik, Case: BC606764, Date: 2023-01-27 Tentative Ruling

Case Number: BC606764    Hearing Date: January 27, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

On January 11, 2016, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed this complaint for property damages and uninsured motorist bodily injury subrogation against Defendants Daisy Carina Estrada Lopez and Alicia Ramirez.  Plaintiff alleges that on January 20, 2014, Defendants negligently drove, maintained, owned, managed, entrusted, and operated their vehicle and collided with Plaintiff’s insured Jenny Lee’s property, causing damage to the insured.  Plaintiff alleges that the insured made a claim, which Plaintiff paid to the insured in the amount of $21,000 on June 17, 2014.  Plaintiff alleges that pursuant to the policy with the insured, it has been subrogated to all the rights of the insured against Defendants. 

B.     Relevant Background

On July 11, 2017, the Court in Department 97 was informed that the parties had conditionally settled the case. 

On July 26, 2017, the dismissal of the complaint without prejudice was entered by the Clerk of the Court.  In the “Other” box of Request for Dismissal Form CIV-110, Plaintiff requested that the Court retain jurisdiction pursuant to CCP § 664.6.  A copy of the Stipulation for Entry of Judgment was attached to the Request for Dismissal.  This request was stricken by the Clerk of the Court and the Stipulation for Entry of Judgment did not contain a proposed order for the Court’s signing.

C.     Motion on Calendar

On September 29, 2022, Plaintiff filed a motion to set aside the dismissal and to enter judgment (CCP § 644.6.). 

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

“If parties to pending litigation stipulate, in a writing signed by the parties outside 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.”  (CCP § 664.6.)

The request to retain jurisdiction must be made: (1) during the pendency of the case, not after the case has been dismissed in its entirety; (2) by the parties themselves; and (3) either in writing signed by the parties, or orally before the Court.  (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.)  As stated in Wackeen:

[I]n order for a court to assert such continuing jurisdiction, the parties' request for retention of jurisdiction must satisfy the same formalities that courts and the Legislature have imposed generally on section 664.6 motions and the settlement agreements such motions seek to enforce. Like section 664.6 motions themselves, requests for retention of jurisdiction must be made prior to a dismissal of the suit. Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.

(Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [emphasis added]; see also Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2022 Update) Ch. 12(II)-F, §12:982.1 [“CCP § 664.6 provides for the retention of personal jurisdiction to enforce the settlement ‘if requested by the parties,’ but it is not clear from the statute how such a ‘request’ is to be made. Clearly, it is not enough simply to provide for such retention in the settlement agreement. Rather, the parties can file ‘a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6.’ [Mesa RHF Partners, L.P. v. City of Los Angeles, supra, 33 CA5th at 918, 245 CR3d at 515-516] Otherwise, once the case is dismissed, a party in breach of the settlement agreement may argue successfully that the court lacks jurisdiction to enforce it.”].) 

            “Where a settlement agreement provides the court may retain jurisdiction to enforce the settlement, but the dismissal fails to provide for retained jurisdiction, plaintiff's remedy is to move to vacate or modify the dismissal under CCP § 473(b) for “mistake, inadvertence or excusable neglect.” (Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2022 Update) Ch. 12(II)-F, §12:982 [citing Basinger v. Rogers & Wells (1990) 220 CA3d 16, 21, 269 CR 332, 335].)

DISCUSSION

            Plaintiff moves to set aside the dismissal filed pursuant to CCP § 664.6 and to enter judgment against Defendants by reason of their default of the terms of the stipulation for judgment. 

            In support of the motion, Plaintiff provides the declaration of counsel Susan M. Benson.  Ms. Benson states that the parties entered into a written Stipulation for Entry of Judgment in which Defendants agreed to have judgment entered in favor of Plaintiff in the sum of $30,969.08, but that the obligation would be discharged if Defendants paid $15,500 in monthly payments of $50.  (Benson Decl., ¶4, Ex. 1 [Stipulation].)  She states that Defendants made payments totaling $8,300, leaving a balance of $7,200, with the last payment received on March 18, 2022.  (Id., ¶5.)  Ms. Benson states that her office sent a default payment letter to Defendants on June 2, 2022, advising them of the default and the remaining balance.  (Id., ¶6, Ex. 2 [Notice of Default].)  Despite these attempts to continue payment, Ms. Benson states that Defendants failed to pay the monies.  (Id., ¶7.)  As such, Plaintiff seeks $22,669.08 (=$30,969.08 principal - $8,300 paid), plus filing costs of $60 for this motion, for a total judgment of $22,729.08 against Defendants.  (Id., ¶8.) 

            In the Stipulation, the parties agreed that upon execution and return of the Stipulation, Plaintiff shall file a conditional notice of settlement or dismissal of the action.  (Stipulation, ¶11.)  It states that if a dismissal is filed, the parties agree that the Court shall retain jurisdiction pursuant to CCP § 664.6 to enforce the terms of the Stipulation and enter judgment in the event of default.  (Id.)  The Stipulation is signed by Ms. Benson on behalf of Plaintiff, Defendant Estrada, and Defendant Ramirez.  (Id. at p.4.) 

            While the parties themselves agreed that the Court would have jurisdiction pursuant to CCP § 664.6, the Stipulation was not accompanied by a proposed order for the Court’s signing to indicate whether it would retain jurisdiction to enforce the terms of the Stipulation.  Further, a review of the Court’s docket shows that no oral request pursuant to CCP § 664.6 was made.  While the Request for Dismissal Form included a request that the Court retain jurisdiction pursuant to CCP § 664.6 as well as a copy of the Stipulation, the request for the Court to retain jurisdiction under CCP § 664.6 in the “Other” section was stricken.  The Request for Dismissal Form was entered by the Clerk of the Court and the Clerk of the Court cannot execute a request for the Court’s retention pursuant to CCP § 664.6.  Further, the request to retain jurisdiction pursuant to CCP § 664.6 was made concurrently with the request for dismissal; however, requests pursuant to CCP § 664.6 should be made prior to the entry of dismissal.

            In addition, the Court notes that it lacks jurisdiction over Defendant Daisy Carina Estrada Lopez.  On February 25, 2016, Daisy Carina Estrada Lopez and Alicia Ramirez filed court fee waiver forms.  The fee waiver was granted as to Alicia Ramirez and denied as to Daisy Carina Estrada Lopez.  As such, Defendants’ answer filed on February 25, 2016 was stricken as to Daisy Carina Estrada Lopez for failure to pay first appearance fees.  Thus, the Court lacks jurisdiction over Daisy Carina Estrada Lopez..

            The motion to set aside the dismissal and enter judgment is denied as the parties did not properly request that the Court retain jurisdiction pursuant to CCP § 664.6 prior to dismissal of the case.  However, Plaintiff is not foreclosed of remedies.  As noted in Wackeen, Plaintiff may file a separate lawsuit to enforce the Stipulation terms.  While the remedy under CCP § 473(b) to set aside the dismissal would ordinarily be available, the dismissal in this action was entered in 2017, which is well beyond the 6-month deadline to set aside dismissal.  

CONCLUSION AND ORDER

Plaintiffs’ motion to set aside the dismissal and enter judgment is denied.

Plaintiff shall provide notice of this order.