Judge: Layne H. Melzer, Case: 2018-01040079, Date: 2022-12-15 Tentative Ruling

Plaintiff Mercury Insurance Company

Motion to Vacate

The court grants Plaintiff Mercury Insurance Company’s Motion to set aside dismissal and to enter judgment against Defendant Pyxis Water Systems, Inc. in the amount of $90,060 pursuant to CCP §664.6.

Legal Standard

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.) Section 664.6 authorizes a court to enter judgment on a settlement agreement without the need for a new lawsuit only if certain requirements are met.  (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304.) 

Merits

On 12/21/10, Plaintiff sued Defendant in a subrogation claim. (ROA 2) Pyxis was personally served on 2/4/19 and the Proof of Service showing the same was filed on 2/13/19. (ROA 11)

On 8/9/19, Plaintiff advised the court that the case had settled. (ROA 46.)

Plaintiff filed a Notice of Settlement on 2/18/20. (ROA 63)

On 4/22/20, the parties both signed a stipulation for dismissal with reservation of rights under CCP §664.6 and filed it on 5/26/20, (ROA 80). It specifically reads in relevant part: “The parties stipulate that the court shall retain jurisdiction pursuant to CCP 664.6 to enforce this agreement.”

The parties also signed a Stipulation for Dismissal on 5/22/20, but not filed until 8/12/20. (ROA 98).

The court then dismissed this case on 8/26/20 without prejudice. (ROA 88.)

Thus, the court has jurisdiction to grant the requested relief. (See also Canal Street, Ltd. v. Sorich (2000) 77 CA4th 602, 608; Schiro v. Curci (1990) 220 CA3d 840, 844-845.)

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.)  Section 664.6 authorizes a court to enter judgment on a settlement agreement without the need for a new lawsuit only if certain requirements are met.  (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304.) 

Here, as set forth above, on 4/22/20, the parties both signed a stipulation for dismissal with reservation of rights under CCP §664.6. (ROA 80). This Stipulation indicates that payments are to be made of $500 per month for a total of a $90,000, unless a lump sum of $60,000 is made no later than May 15, 2022. It also stipulates that if payment is not made as agreed, Defendant will be given 14 days’ notice to cure and then Plaintiff will seek to set aside dismissal and enter judgment.

Defendant failed to make any payments. (Reese Decl., ¶4.) Pursuant to the terms of the Agreement, on or about June 30, 2020, Plaintiff mailed Defendant a default letter regarding the missed payments. (Reese Decl., ¶5, Ex. B.) Still, no payments were made. (Reese Decl., ¶¶5-7.)

Finally, Plaintiff asks for $60 filing fee for this Motion. The parties’ Stipulation did provide for costs.

Therefore, the Motion is granted.

Plaintiff is ordered to file a proposed judgment for the court to sign.

Plaintiff shall serve notice of this Order.