Judge Kerry Bensinger, Case Number: 23STCV24598, Date: 2024-04-09 Tentative Ruling

MOTION TO VACATE CONDITIONAL DISMISSAL AND FOR ENTRY OF JUDGMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6

This is a collections case. On October 10, 2023, Plaintiff, American Express National Bank, filed a complaint against Defendants, Jonathan Dahan and MMC Agency Inc.

On December 12, 2023, Plaintiff filed the parties’ Stipulation for the Court to Dismiss the Case and Retain Jurisdiction Pursuant to Code of Civil Procedure Section 664.6 (“Stipulation”). On the same day, the court dismissed the case without prejudice and retained jurisdiction to enforce the terms of the settlement and enter judgment in the event of default.

On February 9, 2024, Plaintiff filed this Motion to Vacate the Conditional Dismissal and for Entry of Judgment Pursuant to Code of Civil Procedure Section 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.”¿ (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 containing the parties’ agreement for the court to retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms of the Stipulation and enter judgment in the event of default. (Stipulation ¶¶ 12,¿13.) Prior to the dismissal of this action, the Stipulation was signed by the parties and submitted to the court. (Ibid.) On December 12, 2023, the court dismissed the entire case pursuant to the Stipulation. The court has jurisdiction to enforce the terms of the Stipulation.

The Stipulation 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 $391.937.67, consisting of monthly payments of $500.00 from December 2023 to May 2024; thereafter, monthly payments of $1,000 from June 2024 to November 2024; thereafter, monthly payments of $15,955.73 from December 2024 to October 2026; then, one final payment of $15,955.88 due on or before November 6, 2026. (Stipulation, ¶ 6.) All parties signed the Stipulation.

The Stipulation also provides that in the event Defendants fails to make timely payments, Plaintiff will give Defendants written mail notice of the default and ten (10) days from the mailing to cure the default. If the default is not cured, the court can enter a judgment against Defendants pursuant to motion in the amount of $391,937.67 plus costs; Defendants shall receive a credit for any payments made under the Stipulation. (Ibid. at ¶¶ 5, 12, 13.)

Defendants have not made any payments under the Stipulation. Plaintiff now seeks an order vacating the conditional dismissal and entering judgment against Defendants in the sum of $393,370.67, consisting of $391,937.67 in damages and $1,433.00 in costs.

Plaintiff substantiates the damages sought. On January 26, 2024, Plaintiff sent written notice to Defendants to cure the default. (See Pyle Decl., Ex. B.) Defendants have not cured the default. However, Plaintiff has not submitted a Memorandum of Costs to support the request for costs of $1,433.00.

Accordingly, the motion is CONTINUED to May 3, 2024 to allow Plaintiff to file a Memorandum of Costs.

Kerry Bensinger

Judge of the Superior Court