Judge Kerry Bensinger, Case Number: 22STCV32137, Date: 2024-03-28 Tentative Ruling

This is a collections case. On October 3, 2022, Plaintiff, Ernest Packing, filed a complaint against Defendant, Walnut LLC.

On March 9, 2023, Plaintiff filed the parties’ Stipulation for Entry of Judgment.

On April 18, 2023, pursuant to Plaintiff’s oral motion to dismiss under CCP section 664.6, the court dismissed the case without prejudiced and retained jurisdiction to enforce any and all terms of settlement, including judgment.

On July 7, 2023, Plaintiff filed Response to the OSC re Dismissal, stating that the matter should remain on calendar because no settlement was reached. Plaintiff did not dismiss the case.

On July 14, 2023, at the hearing for the OSC re Dismissal, the court stated that California Rules of Court permitted the court to dismiss the action if the court determined the settlement was enforceable. The parties were directed to brief the enforceability of the settlement agreement.

On February 23, 2024, Plaintiff filed this motion to set aside the dismissal and enter judgment against Defendant hearing.

“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.”¿ (Code Civ. Proc., § 664.6.)¿¿¿

In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.¿ (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)¿ The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).¿ The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]”¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a “writing signed by the parties” sufficient to satisfy the requirements of Section 664.6].)¿

“‘[V]oluntary dismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.’ (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 867) [12 Cal.Rptr.3d 142.) ‘If requested by the parties,’ however, ‘the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement.’ (§ 664.6, italics added.)” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.) “‘Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.’” (Ibid. (quoting Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37).)

“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).)

Here, the parties signed a Stipulation for Entry of Judgment (“Stipulation”) containing the parties’ agreement for the court to retain jurisdiction pursuant to Code of Civil Procedure §664.6 to enforce the terms of the stipulation and enter judgment in the event of default. (Stipulation ¶¶ 11,¿19.) Prior to the dismissal of this action, the Stipulation was signed by the parties and submitted to the Court. (Ibid.) On April 18, 2023, the Court dismissed the entire case pursuant to the Stipulation and expressly stated that it “retains jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6.” (Minute Order, 4/18/23.)

The Stipulation Agreement provides that Plaintiff and Defendant agree to dismiss the action without prejudice on the premise that Defendant will compensate Plaintiff for the settlement amount of $42,000, consisting of a down payment of $5,000, monthly payments of $2,000 from January 1, 2023 to December 1, 2023, and thereafter, monthly payments of $3,000 until the settlement amount is paid in full. (Stipulation, ¶ 2.) Pursuant to the Stipulation, Defendant will also pay $525 for the first appearance fee and related filing fee. (Id.) Interest will not accrue so long as Defendant makes timely payments. (Id.) All parties signed the Stipulation.

The Stipulation also provides that in the event Defendant fails to make timely payments, Plaintiff will give Defendant five (5) day written email notice to cure any missed payments. If the default is not cured within five (5) days of not receiving written email notice, Plaintiff may without further notice[1] to Defendant or Defendant’s counsel, “have the dismissal set aside and have judgment entered against DEFENDANT for the JUDGMENT AMOUNT less credits for payments made being first applied to interest at 10% per annum on the JUDGMENT AMOUNT from November 8, 2022, and then against the principal of the JUDGMENT AMOUNT, plus interest as provided hereinabove plus any and all other sums provided for in this STIPULATION.” (Ibid. at ¶ 4.) The Stipulation also provides for a late notice fee of $350 and attorneys’ fees of $1,500. (Ibid. at ¶¶ 4, 5.)

Plaintiff now seeks an order to set aside dismissal and enter judgment against Defendant in the sum of $31,181.45, consisting of the balance of judgment of $25,831.45, attorney fees in the sum of $1,500 and late notice fees of $3,850.

Plaintiff substantiates the judgment sought. Defendant incurred late notice fees in the total sum of $3,850 for late payments made on 12/23/2022, 2/15/2023, 3/09/2023, 4/07/2023, 5/05/2023, 6/03/2023, 7/05/2023, 8/04/2023, 9/13/2023, 10/11/2023, and 11/04/2023. (Minassian Decl., Ex. 3.) Defendant has not made any payments since 11/04/2023 and is therefore in default.

Accordingly, Plaintiff’s unopposed Motion for Order Setting Aside Dismissal and for Entry of Judgment after Default Pursuant to Stipulation is GRANTED. Dismissal entered on April 18, 2023, is vacated. Judgment is entered for Plaintiff and against Defendant for $31,181.45, consisting of the balance of judgment of $25,831.45, attorney fees in the sum of $1,500 and late notice fees of $3,850.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff provided Defendant with notice of this motion.