Judge: John J. Kralik, Case: EC063801, Date: 2023-08-14 Tentative Ruling

Case Number: EC063801    Hearing Date: August 14, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff National Collegiate Student Loan Trust 2004-1 (“Plaintiff”) alleges that its assignor, Bank One, N.A., entered into a written contract with Defendants Mary Tims and Philip Tims (“Defendants”) on February 17, 2004.  PLaintiff alleges that is assignor loaned money to Defendants for financing education expenses.  Plaintiff alleges that on August 25, 2011, Defendants failed to make payment on the contract and defaulted.  Plaintiff alleges that principal sum due is $40,990.62. 

The complaint, filed April 17, 2015, alleges a single cause of action for breach of contract.

B.     Relevant Background and Motion on Calendar

On June 8, 2015, Plaintiff filed a Notice of Conditional Settlement of the entire case. 

On June 11, 2015, Judge Donna fields Goldstein (retired) found that a Notice of Settlement had been filed with the Court and she set an OSC re Dismissal for August 11, 2015 in the event a request for dismissal was not file with the Court prior to the OSC.   

On June 11, 2015, Plaintiff dismissed this action without prejudice and requested that the Court retain jurisdiction under CCP § 664.6 and pursuant to the Settlement Agreement between the parties.  The Dismissal form was signed by the Clerk of the Court, but was not signed by the Judicial Officer of the Court. 

On June 6, 2023, Plaintiff filed a Notice of Default in Payments Pursuant to Stipulation and Right to Cure, stating that Defendant has defaulted on the payment agreement and failed to cure the said default. 

On June 26, 2023, Plaintiff filed a motion to set aside the CCP § 664.6 dismissal and enter judgment against Defendant.

DISCUSSION

            Plaintiff moves to vacate the dismissal entered in this action, arguing that Defendants have defaulted on the Conditional Stipulated Settlement Agreement, such that Plaintiff requests that the Court enter judgment pursuant to the Settlement Agreement.

            First, the Court notes that Plaintiff did not properly request that the Court retain jurisdiction of this matter pursuant to CCP § 664.6.  “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.) “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].)

            Here, the request for dismissal form was not signed by the Court and was instead signed only by the Clerk of the Court.  The Court’s June 11, 2015 minute order also did not note any oral or written request by the parties that the Court retain jurisdiction pursuant to CCP § 664.6 of this matter following settlement and dismissal of the action.  The Court is also not a signatory to the Settlement Agreement. 

The case Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913 is instructive.  In Mesa, the parties had entered into settlement agreements stating that the court would retain jurisdiction pursuant to CCP §664.6 to enforce the terms of the settlement agreement and later counsel filed requests for dismissal with language stating that the court shall retain jurisdiction to enforce the settlement pursuant to CCP §664.6, which was entered by the deputy clerk.  The Court of Appeal held that trial court properly denied the motions to enforce the settlement agreements because the requests for dismissal were not signed by any “parties” (i.e., the litigants themselves and not their attorney of record) as required by section 664.6.  Citing Wackeen, the Court of Appeal stated that: “[A] request that jurisdiction be retained until the settlement has been fully performed must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves, not by their attorneys of record, their spouses, or other such agents.”  The Court of Appeal stated that the parties could have easily invoked section 664.6 by: (a) attaching the settlement agreement (signed by the parties) to the request for dismissal form; (b) filing a stipulation and proposed order attaching a copy of the settlement agreement (signed by the parties) and requesting that the trial court retain jurisdiction under section 664.6; or (c) filing a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6.  In Mesa, counsel had filed the requests for dismissal but had failed to attach the settlement agreement that was signed by the parties; thus, the Court of Appeal affirmed the denial of the motions to enforce the settlement agreements.

            Even if Plaintiff had properly requested that the Court retain jurisdiction of the matter pursuant to CCP § 664.6, the Court would deny the request to enter judgment pursuant to the Settlement Agreement.  At this time, the Court lacks jurisdiction over Defendants.  According to the Court’s review of the docket and the documents filed in this action, there is no proof of service of the summons and complaint on Defendants.  Defendants have been named in this action, but there is no indication that Defendants have been served with the summons and complaint.  As such, Defendants have not yet appeared in the action and the Court cannot enter judgment against them.

            At this time, the Court will grant the motion in part (on its own motion) so that the dismissal entered on June 11, 2015 will be vacated as it was improperly entered.  (CCP § 473(d).)  The Clerk of the Court should have rejected the request for dismissal as it improperly requested that the Court retain jurisdiction of the matter under CCP § 664.6.  However, the motion is denied in part such that the Court cannot enter judgment against Defendants as Defendants have not yet been served with the summons and complaint in this action and thereby have not yet appeared in this action or had their defaults taken against them. 

CONCLUSION AND ORDER

Plaintiff National Collegiate Student Loan Trust 2004-1’s motion is granted in part and denied in part.  The motion is granted in part such that the dismissal entered on June 11, 2015 shall be vacated.  The motion is denied in part because the Court cannot enter judgment against Defendants as they have not yet been served with the summons and complaint.  Thus, the Court lacks jurisdiction over Defendants at this time.

Plaintiff shall provide notice of this order.