Judge: Layne H. Melzer, Case: 2021-01200458, Date: 2023-08-10 Tentative Ruling

Plaintiff Balboa Capital Corporation, A California Corporation

Motion to Set Aside/Vacate Dismissal

 

Plaintiff Balboa Capital Corporation’s motion to vacate the dismissal entered in this action and enter judgment against defendants North George Stakes, LLC, Matthew McCay, and Mark McCay under Code Civ. Proc. § 664.6 is granted.

 

Plaintiff’s motion is timely filed.  Code Civ. Proc. § 473(b).

 

Code Civ. Proc. § 664.6 provides: “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.”

 

The elements that must be met pursuant to Code Civ. Proc. § 664.6 are as follows:

 

  1. There is a valid and binding settlement agreement of all or part of the case;
  2. The parties agreed to all material settlement terms;
  3. If it is a written stipulation, the writing is signed by both parties;
  4. The settlement agreement was made pending litigation;
  5. A Motion to Enforce is made.

 

Code Civ. Proc. § 664.6.

 

The record reflects the existence of an agreement reached by the parties in the form of the stipulation.  [Chiongson Decl. Exs. 3, 4, 5.]

 

The parties’ agreement was for payments upon a certain schedule and, if those payments were not made, acceleration and entry of judgment in the total amount.  The agreement also provided for cure upon notice and that judgment could be obtained after there was no payment and no cure.  Plaintiff’s counsel gave Defendants notice of default, but Defendants did not cure.  [Chiongson Decl. ¶¶ 13-14 and Ex. 6.]

 

The amount sought by Plaintiff does not include interest or attorneys’ fees.  It is the amount Defendants agreed to pay but did not.  [Chiongson Decl., ¶¶ 10-12.]

 

Moving party to provide notice.