Judge Layne H. Melzer, Case 2012-00540908 2023-07-27 Tentative Ruling

Judge: Layne H. Melzer, Case: 2012-00540908, Date: 2023-07-27 Tentative Ruling

Plaintiff Cavalry Spv I, LLC, As Assignee of Bank of America / Fia Car

Motion for Entry of Judgment

Before the court is Plaintiff Cavalry SPV I, LLC, as assignee of Bank of America / FIA Card Services, N.A.’s motion to enter judgment pursuant to CCP §664.6 against Defendant James T. Hoang on the Complaint.

A. Facts

On 1/30/12, Plaintiff Cavalry SPV I, LLC, as assignee of Bank of America / FIA Card Services, N.A. sued Defendant James T. Hoang for account stated/ money lent. (ROA 1) Defendant never appeared in this case. But shortly after being served, the parties settled this matter. On 4/11/12, Plaintiff filed a Notice of Settlement. (ROA 9)

On 3/27/13, Plaintiff filed a Notice of Dismissal, which included the following language: “However, court retains jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement pursuant to CCP section 664.6.” (ROA 17)

B. Legal Standard

Before enactment of CCP § 664.6, when a settlement broke down, the party seeking to enforce it either had to (a) file a separate lawsuit for breach of contract or (b) seek leave to file a supplemental pleading (to allege the settlement as a new claim or defense), and then move for summary judgment. But summary judgment would be denied if a “triable issue of material fact” were shown (e.g., regarding the terms of the agreement, authority of counsel, etc.). [See Weddington Productions, Inc. v. Flick (1998) 60 CA4th 793, 808.]

The statutory procedure under § 664.6 provides a much more efficient alternative to resolution of disputes arising over settlement agreements.

The court is empowered to enter judgment where parties to pending litigation stipulate to a settlement either:

— orally before the court; or

— in a writing signed by the parties or their counsel outside court. [CCP § 664.6(a), (b) (amended eff. 1/1/21)

The parties need not agree in the same manner; i.e., some parties may stipulate to the settlement in open court while others stipulate in writing. [Elyaoudayan v. Hoffman (2003) 104 CA4th 1421, 1429.]

If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the settlement terms. [CCP § 664.6(a)]. If the parties so stipulate, the court may retain jurisdiction over the parties to enforce the settlement until full performance thereof. [CCP § 664.6(a)].

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.” [See Basinger v. Rogers & Wells (1990) 220 CA3d 16, 21]. But this works only if the 6 months deadline is met.

C. Merits

Here, the Request for Dismissal included retention of jurisdiction pursuant to CCP §664.6 to enforce the settlement. (ROA 17). But this is insufficient to maintain jurisdiction. (See Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 916.)

In Mesa, counsel for Mesa filed a request for dismissal on Judicial Council form CIV-110 that contained the following language counsel inserted into the document: “The Court shall retain jurisdiction to enforce the settlement agreement per Code of Civil Procedure § 664.6.” A deputy clerk entered the dismissal “as requested” on the same day. The Court of Appeal held that this was insufficient, holding as follows:

“[V]oluntary dismissal of an action or special proceeding terminates the court's jurisdiction over the matter.” (In re 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.) “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.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37, 126 Cal.Rptr.2d 400; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1262, 115 Cal.Rptr.3d 203 (Critzer).)

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.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440, 118 Cal.Rptr.2d 502 (Wackeen).) The “request must be express, not implied from other language, and it must be clear and unambiguous.” (Ibid.)

The parties ask us to construe Mesa, Hill, and Olive's requests for dismissal as section 664.6 requests for the trial court to retain jurisdiction. We will not do so.

(Id. at pp. 917-918)

Here, too the only reference to Section 664.6 is on the Request for Dismissal. Based on the holding in Mesa, this is insufficient to confer jurisdiction.

Thus, the Motion is denied.