Judge Ralph C. Hofer, Case Number: 23GDCV00910, Date: 2024-12-06 Tentative Ruling

Plaintiff Rufus Choi alleges that in January of 2021 plaintiff purchased a 2021 Chrysler Pacifica manufactured or distributed by defendant FCA US LLC, and plaintiff received an express written warranty, in which defendant FCA US LLC undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that the defects were present or developed during the express warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff alleges that plaintiff provided defendant and its representatives in this state sufficient opportunity to service or repair the vehicle, but defendant and its representatives have been able to or failed to service or repair the vehicle within a reasonable number of attempts.

The complaint alleges two causes of action, for Violation of Subdivision (d) of Civil Code Section 1793.2, and for Breach of the Implied Warranty of Merchantability.

Plaintiff Rufus Choi seeks to enforce a settlement agreement between the parties. Relief is sought under CCP § 664.6, which provides, in pertinent part:

“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 Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court on a section 664.6 motion may 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. 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.

In this case, the moving papers indicate that the parties entered into a settlement agreement when plaintiff accepted defendant FCA’s written CCP section 998 offer on April 9, 2024.

However, the moving papers consist of a notice and memorandum of points and authorities which references a Beck Declaration, which evidently submits a copy of the purported settlement agreement, but the Beck Declaration has not been filed with the court. The document filed on eCourt under the heading, “Declaration of Benjeman Beck in Support of Motion to Enforce Settlement” is another copy of Plaintiff’s Notice of Motion and Motion to Enforce Settlement.

Accordingly, the court has no evidence before it from which it may determine that the parties to this litigation stipulated in a signed writing for settlement of the case, and has no evidence of the terms of the settlement it is being asked to enforce. The representations in the memorandum are not evidence, and the court cannot without the writing or writings confirm that the representations are accurate.

The court is also in a position where it has no way of confirming that the Beck Declaration and the supporting exhibits have been served on the other party.

There is accordingly no “substantial evidence” before the court to support issuance of the court order requested, and issues of notice and due process may be in play.

The motion accordingly is denied. The motion is denied without prejudice to either party seeking to enforce the terms of a settlement pursuant to CCP section 664.6, based on the required evidentiary showing. The court will hear argument concerning whether the matter should be continued for an evidentiary showing by substantial evidence of the existence of a written stipulation for settlement between the parties, the terms of the settlement agreement, and a breach of obligation on the part of defendant.

The court notes that after this matter had been considered without the benefit of the Declaration of Benjeman Beck, on November 27, 2024, plaintiff filed the Declaration with the court. The filing indicates that the declaration was also served by electronic service on November 27, 2024. This was only five court days prior to the hearing.

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

CCP section 1010.6 (a)(4)(B) provides that if the notice is served by electronic means, the period of notice before the hearing shall be extended by two court days. The declaration, served by electronic means, accordingly should have been served eighteen court days prior to the hearing, but was thirteen court days late. This posture confirms the court’s concern that defendant has had insufficient notice of the evidentiary basis for the motion. The declaration was served four court days after timely opposition would have been due, so the untimely service has undoubtedly prejudiced defendant. The motion accordingly is denied.

The evidence in support of the motion was not filed or served until November 27, 2024, only five court days prior to the hearing, several days after timely opposition would have been due, to the prejudice of defendant. Under CCP sections 1005 (b) and 1010.6 (a)(4)(B) all papers in support of the motion were required to be filed and served sixteen court days prior to the hearing, with an additional two court days for service by electronic means. The declaration is accordingly thirteen court days late, provides clearly insufficient notice to defendant, and is not considered by the Court.

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