Judge Mark E. Windham, Case 20STLC10231 2022-07-27 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC10231, Date: 2022-07-27 Tentative Ruling

Case Number: 20STLC10231 Hearing Date: July 27, 2022 Dept: 26

ENTER JUDGMENT PURSUANT TO STIPULATION

(CCP § 664.6)

TENTATIVE RULING:

Plaintiff Western General Insurance Company’s Motion to Vacate Dismissal, Enforce Settlement Agreement and Enter Judgment is CONTINUED TO OCTOBER 12, 2022 AT 10:00 AM IN THE SPRING STREET COURTHOUSE. BY OCTOBER 1, 2022, PLAINTIFF IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION WITH A DETAILED ACCOUNTING SHOWING THE AMOUNTS PAID TOWARDS THE SETTLEMENT AND THE BALANCE THAT REMAINS DUE. FAILURE TO FILE AND SERVE BOTH THE SUPPLEMENTAL DECLARATION AND ACCOUNTING, AS ORDERED, MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Marlon Gabriel Marroquin (“Defendant”) on December 8, 2020.

On July 28, 2021, Plaintiff filed a copy of the settlement agreement with Defendant with a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.4. The Court granted the request for dismissal with retention of jurisdiction on the same date. (Order for Settlement and Dismissal, filed 07/28/21.)

Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement and Enter Judgment on March 25, 2022. No opposition has been filed to date.

Discussion

The Motion to Enforce Settlement is brought under Code of Civil Procedure, section 664.6, which states in relevant part:

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.) Prior to January 1, 2021, “parties” under section 664.6 meant the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”).) Additionally, the settlement must have included the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) The settlement agreement here complies with the statutory requirements set forth above because it was signed by both parties. (Motion, Benson Decl., Exh. 1, p. 4.)

Furthermore, the request for retention of jurisdiction was made in writing, by the parties, before the action was dismissed. (Id. at Exh. A, ¶3.) These requirements must also be met for the retention of jurisdiction to conform to the statutory language. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [“requests for retention of jurisdiction must be made prior to a dismissal of the suit. Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.”].) Therefore, the Court finds that the parties’ settlement agreement is enforceable, and the request for retention of jurisdiction is proper, under Code of Civil Procedure section 664.6.

However, the amount due under the settlement agreement is unclear. The settlement agreement provides that Defendant would pay Plaintiff $ $10,440.21 by monthly payments starting on July 15, 2021. (Id. at Exh. 1, ¶¶1-2.) The settlement agreement also provides that if Defendant defaults, judgment in the settlement amount, less monies paid, may be entered in Plaintiff’s favor. (Id. at Exh. 1, ¶¶1, 5.) Defendant made payments in the amount of $900.00 and thereafter defaulted. (Id. at ¶7.) Therefore, Plaintiff would be entitled to an order entering judgment against Defendant in the amount of $9,540.21 principal. Instead, Plaintiff only seeks a principal judgment of $9,160.21. (Id. at ¶5.) The supporting declaration, therefore, lacks credibility regarding the payments made towards the settlement agreement and the amount that remains due

Conclusion

Moving party to give notice.