Judge: Michael Shultz, Case: 20CMCV00017, Date: 2023-12-19 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20CMCV00017 Hearing Date: December 19, 2023 Dept: A
20CMCV00017 Enerbank USA v. Janelle
Randolph
[TENTATIVE] ORDER
This
action arises from an alleged breach by Defendant of a promissory note for a
$25,9000 loan. Plaintiff alleges claims for breach of contract and common
counts. Plaintiff filed a notice of conditional settlement of the entire case
on August 18, 2020. At the Order to Show Cause hearing on August 26, 2020, the
Hon. Maurice A. Leiter dismissed the action but retained jurisdiction to
enforce the terms of settlement pursuant to Code of Civil Procedure, section
664.6.
Plaintiff
moves to set aside dismissal and enforce terms of the settlement agreement. Plaintiff
timely served the motion on Defendant, who did not file an opposition by December
6, 2023 (nine court days before the hearing). (Code Civ. Proc., § 1005 subd.
(b).)
A
party may move for entry of judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6.) The
court’s power is limited to determining the existence of the agreement and
enforcing its settlement. (Corkland v. Boscoe (1984)
156 Cal. App. 3rd 989.) The court may
receive oral testimony or may determine the motion upon declarations alone. (Id.)
Since
the Court’s order of dismissal expressly stated that the court would retain
jurisdiction to enforce settlement, vacating the dismissal is not necessary. In
Wackeen v. Malis (2002) 97 Cal.App.4th 429, the
Court of Appeal held that “even though a settlement may call for a case to be
dismissed, or the plaintiff may dismiss the suit of its own accord, the court
may nevertheless retain jurisdiction to enforce the terms of the settlement,
until such time as all of its terms have been performed by the parties, if
the parties have requested this specific retention of jurisdiction. While
the statute uses the phrase “may retain jurisdiction over the parties, (ibid.)
we hold this provision to include retention of jurisdiction over both the
parties and the case itself, that is, both personal and subject matter
jurisdiction." (Id. at 439.)
The
parties settled this matter on July 9, 2020, wherein Defendant agreed to pay $32,803.67,
according to a payment schedule. (Motion, Ex. 1, page 1.) The parties agreed
that the court would retain jurisdiction to set aside the dismissal and enter
judgment pursuant to settlement. (Id., ¶ 14.) In the event of a default and
Defendant’s failure to cure, the parties agreed that the unpaid balance would
be accelerated and become due and payable. (Id. ¶ 16.)
Defendant
also signed a stipulation for entry of judgment for the principal amount of $25,900.00
plus interest, costs, and fees. (Motion, Ex. 2, ¶ 5.)
Defendant
paid $26,000, but failed to make scheduled payments, leaving a balance due of
$6,803.67. (Motion, Ex. 3.)
The
motion is DENIED because Plaintiff’s calculation for a judgment of $4,149.20 is
not clearly explained. Plaintiff asks for the stipulated judgment amount of
$25,900, although Defendant has already paid $26,000. The settlement agreement
called for an acceleration of the balance due of $6,803.67, which exceeds the
total judgment sought. The Court cannot determine the balance on which interest
was calculated.
Additionally,
Plaintiff’s counsel has not supported the request for attorney’s fees of $1,825.00.
The Court does not have any facts to determine whether the fee is based on a
reasonable hourly rate or that Plaintiff’s counsel expended a reasonable amount
of time for the work at issue. The request for costs of $939.95 is not
supported by any evidence.