Judge Katherine Chilton, Case 20STLC02366 2022-08-02 Tentative Ruling

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Plaintiff Amica Mutual Insurance Company’s Motion to Set Aside/Vacate Dismissal and Enter Judgment[1] is CONTINUED TO SEPTEMBER 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the continued hearing, Plaintiff must file and serve supplemental papers as requested herein. Failure to do so will result in the Motion being placed off calendar or denied.

On March 10, 2020, Plaintiff Amica Mutual Insurance Company (“Plaintiff”) filed a complaint against Defendant Bryan Gilberto Hernandez (“Defendant”) for subrogation, stemming from an automobile accident between Defendant and an individual insured by Plaintiff’s automobile insurance policy. (Complaint, pp. 2-3.) Plaintiff compensated insured for claimed damages in the amount of $19,487.27 and filed the instant claim against Defendant for allegedly causing the damages. (Ibid. pp. 2-3.). On June 15, 2020, Defendant filed an Answer denying all allegations in the Complaint.

On August 19, 2021, Plaintiff filed a Notice of Settlement with the Court. On August 20, 2021, the Court scheduled a hearing for Order to Show Cause Re: Dismissal (Settlement) for January 13, 2022. On September 30, 2021, Plaintiff filed Judicial Council Form CIV-110, Request for Dismissal with prejudice of the “entire action of all parties and all causes of action.” (9-30-21 Request for Dismissal.) Dismissal was entered on October 13, 2021.

On April 28, 2022, Plaintiff filed the instant Motion to Set Aside Dismissal and Reinstate Case and Motion for Order for Entry of Judgment Upon Signed Stipulation of Parties (the “Motion”).

Code of Civil Procedure § 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:

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

The Court notes that Plaintiff has served Defendant with the Notice of Motion and Motion by mail but failed to serve him at the correct address. Proof of Service shows that Defendant was served at the following address: Anna Osipov, Esq.//Dan D. Endoso & Associates, 330 North Brand Blvd, Suite 850, Glendale, CA 91023 and Bryan Gilberto Hernandez, 14709 Maclay Street, Mission Hills, CA 91345. (Mot. p. 18.) On May 7, 2021, Defendant’s counsel had filed a Notice of Change of Address, listing the new address as 330 North Brand Blvd., Ste 1200, Glendale, CA 91023, and served it electronically on Plaintiff’s counsel.

The Court continues the hearing on the Motion and orders Plaintiff to file and serve the Notice of the Motion, Motion, and supplemental documents on the Defendant at counsel’s updated address.

Plaintiff Amica Mutual Insurance Company’s Motion to Set Aside/Vacate Dismissal and Enter Judgment is CONTINUED TO SEPTEMBER 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the continued hearing, Plaintiff must file and serve supplemental papers as requested herein. Failure to do so will result in the Motion being placed off calendar or denied.

The Court further notes, however, that the parties have not made a clear and express request for the Court to retain jurisdiction over the matter. Paragraph 5.5 of the Stipulation Agreement states “[t]hat the Court shall retain jurisdiction of this action to enforce this settlement as authorized by law, including UNDER CCP § 664.6.” (Mot. p. 11 – Ex. A.) However, there was no clear and express request to the Court to retain jurisdiction in the Request for Dismissal and the settlement agreement was not presented to the Court prior to the dismissal. (See 9-30-21 Request for Dismissal.)

“A request for the trial court to retain jurisdiction under section 664.6 ‘must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request 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 a writing signed by the parties or orally before the court.’” (Ibid. (quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440).) “The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’” (Ibid. (quoting Wackeen, supra, 97 Cal.App.4th at 440).)

[1] The title of Plaintiff’s motion is Motion to Set Aside Dismissal and Reinstate Case and Motion for Order for Entry of Judgment Upon Signed Stipulation of Parties. The Court will refer to the Motion as Motion to Set Aside/Vacate Dismissal and Enter Judgment for purposes of brevity.