Judge Ralph C. Hofer, Case 21GDCV00299 2023-01-06 Tentative Ruling

Plaintiff Bank of America, N.A. alleges that defendant Artin Shirvanian became indebted to plaintiff pursuant to defendant’s use or authorization of use of a credit card account. Plaintiff alleges a cause of action for common counts, alleging that monthly periodic statements for the account were delivered to defendant and accepted without successful objection by defendant, and plaintiff seeks the balance due of $249,724.42.

On July 11, 2022, plaintiff filed a Stipulation Agreement with the court, pursuant to which the parties stipulated to entry of judgment in a stated sum, with a payment schedule, and a joint request that the court retain jurisdiction under CCP section 664.6 pending completion of the parties’ respective obligations under the stipulation.

On July 12, 2022, the court signed and filed an Order to Dismiss Case Pursuant to CCP section 664.6, dismissing the case without prejudice, pursuant to CCP section 664.6 where the court retains jurisdiction pending completion of the settlement performance. Notice of Entry of Dismissal was filed and served by the clerk the same date.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court...for settlement of the case,...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 file shows the matter was dismissed pursuant to an order submitted by plaintiff and signed and filed by the court on July 12, 2022. The Stipulation of the parties previously filed expressly requested that the court retain jurisdiction to enforce the settlement until performance in full, providing:

“The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure section 664.6….To the extent the court dismisses the case without prejudice and pursuant to Code of Civil Procedure section 664.6, the court shall retain jurisdiction.”

This showing is sufficient to establish the court’s jurisdiction to summarily enforce the settlement as requested by the parties. As the Second District noted in Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 918:

“In this case, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6.”

With respect to a motion to enforce a settlement agreement, the Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court may on a section 664.6 motion receive evidence, determine disputed facts and enter the terms of a settlement agreement as a judgment, but may not create the material terms of a settlement as opposed to deciding what terms the parties themselves agreed to. Weddington, at 810. See also Weil & Brown, Civil Procedure Before Trial, 12:975-979.2. The trial court’s determination with respect to interpretation of the settlement agreement will not be disturbed on appeal if supported by substantial evidence. Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.

The motion presents evidence that the settlement was for plaintiff to take payment of a Judgment Amount in monthly installments with a final payment for a total sum of $249,525.42. [Ex. 1, Stipulation Agreement, para. 4]. The Stipulation provides that, “If Defendant fails to make full and timely payment of any installment or if any payment is reversed, then the full remaining balance will be due, and Plaintiff shall be entitled to enter judgment for the Judgment Amount plus any motion and/or order fees required by the court, less credit for payments made.” [Ex. 1, Stipulation Agreement, para. 4]. The Stipulation further provides that

“Artin Shirvanian (“Defendant”) stipulates to the entry of judgment in favor of Bank of America, N.A. (“Plaintiff”) in the principal sum of $249,525.42 and court costs of $500 for total judgment in the amount of $250,025.42 (the “Judgment Amount”) and agrees to pay any first appearance fee that may be required as a result of the filing of this Stipulation Agreement (the “Stipulation”).”

Plaintiff submits a declaration of counsel stating that plaintiff’s counsel did not receive the required payments per the terms of the Stipulation and defendant did not make payments conforming with the Stipulation. [Decl. of Counsel, paras. 6, 7].

It is not clear why plaintiff is seeking the principal balance, when the Stipulation provides for recovery by plaintiff of the “Judgment Amount,” and elsewhere the “principal sum” which is stated in both places as $249,525.42, a lower number. The court accordingly adjusts the judgment to reflect the Judgment Amount, and principal balance as that reflected in the Stipulation.

With this adjustment, the motion appears to provide substantial evidence upon which the court may enter judgment. There is no opposition to this motion, so no challenge to this evidence. The motion is granted, and judgment is entered in the total sum of $249,275.42.

The motion is GRANTED pursuant to CCP section 664.6. The Court finds that parties to pending litigation stipulated to the settlement of the case in a writing signed by the parties outside the presence of the court. Judgment is therefore entered in favor of plaintiff Bank of America, N.A. and against defendant Artin Shirvanian in accordance with the Stipulation Agreement filed with the Court on July 11, 2022, in the total sum of the agreed upon Judgment Amount of $249,525.42, plus $500 agreed to, less $750 in payments made, for a total judgment of $249,275.42. [Decl. of Counsel, paras. 2, 6, 7, Ex. 1, paras. 1, 4].

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