Judge Ralph C. Hofer, Case Number: 24GDCV00337, Date: 2025-02-28 Tentative Ruling

Plaintiff American Express National Bank, as successor by merger to American Express Bank, FSB, brings this action alleging two causes of action for common counts against defendant Jong Noh aka John Rae Noh and defendant Comming Good, Inc. dba Zentex, alleging that defendants became indebted to plaintiff on an open book account and account stated and for money lent by plaintiff to defendant at defendant’s request in the sum of $62,827.69.

“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.”

In this case, the parties entered into a written Stipulation for Conditional Entry of Judgment signed by the parties outside of the presence of the court. [Keith Decl., para. 5, Ex. A]. The parties agreed in the Stipulation that if defendants failed to pay any sums under the agreement when due, plaintiff shall give the defendants’ attorney a seven calendar day email notice to cure any non-paymant, and that if defendants fail to cure the non-payment, plaintiff shall be entitled to immediately obtain a judgment pursuant to CCP section 664.6. The matter has not yet been dismissed, so the matter is still “pending litigation,” and the court continues to have jurisdiction to enter a judgment under CCP section 664.6.

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. 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 recover from defendants the sum of $64,029.36, to be paid according to a payment schedule, but that if defendants defaulted by failing to make a payment on time or having a payment returned by the bank, defendants would be notified of such default in writing by email and would be permitted to cure the default within seven calendar days of the date of notice. [Keith Decl. paras. 5, 6, Ex. A. Stipulation, paras. 1-4, 6].

The Stipulation provides that if defendants fail to cure the default, plaintiff shall then be entitled to a judgment pursuant to CCP section 664.6 for “the sum sued upon” by the plaintiff plus court costs, less any payments made pursuant to the stipulation. [Ex. A, Stipulation, para. 6 (c)].

Plaintiff submits evidence that defendants have made no payments toward the settlement amount agreed, and have failed to make payments on the remaining settlement balance. [Keith Decl., paras. 9, 10]. A notice of the default on the Agreement was sent to defendants as agreed by the Stipulation. [Keith Decl., para. 11, Ex. C]. The email notice appears sent to the proper email address, is dated December 5, 2024, and indicates that pursuant to the stipulation, defendants have seven days to remit payment and bring the account current or plaintiff may file a an application to obtain judgment pursuant to CCP section 664.6. [Keith Decl., Ex. C]. This motion was filed and served on December 17, 2024, more than seven calendar days after December 5, 2024, and indicates no payments have been made as of filing. [Keith Decl., paras. 9, 10]. Plaintiff indicates plaintiff is seeking entry of judgment in favor of plaintiff and against the defendants for the sum of $62,827.69 plus costs of suit pursuant to the signed Stipulation. [Keith Decl., para. 13]. The Stipulation provides for judgment “for the sum sued upon by the Plaintiff plus Court Costs, less any payments made pursuant to the stipulation.” [Ex. A, para. 6 (c)]. The sum sued upon as reflected in the complaint is $62,827.69. [Complaint, paras. CC-2].

Plaintiff seeks judgment in the total sum of the sum sued upon of $62,827.69 (not the full settlement amount of $64,029.36, which was not the sum “sued upon”), plus costs of suit in the sum of $1,344.77, for a total sum of $64,172.46. Since no payments have been made on the sum to date, no reduction is appropriate.

Plaintiff submits a memorandum of costs, seeking $995 in filing and motion fees, $207.90 for service of process, and $141.87 for fees for electronic filing or service. [Keith Decl., Ex. D]. This sum totals $1,344.77, as requested, and the costs appear proper on their face and can be awarded as requested. As noted, the Stipulation provides for a judgment “for the sum sued upon by the Plaintiff plus Court Costs, less any payments made pursuant to the stipulation.” [Ex. A, para. 6 (c)]. The sum sued upon of $62,827.69, plus costs of suit in the sum of $1,344.77, with no reduction for payments made, as there were none made, results in a grand total sum of $64,172.46, as requested.

Motion for Order Vacating Notice of Settlement and Entering Judgment Against Defendants Pursuant to CCP section 664.6 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. The Notice of Settlement of Entire Case filed on August 23, 2024 is set aside and vacated and judgment is entered in favor of plaintiff American Express National Bank, Successor by Merger to American Express Bank, FSB in accordance with the Stipulation for Conditional Entry of Judgment Pursuant to CCP section 664.6 executed by the parties on August 21, 2024 and August 22, 2024. Judgment is awarded against defendants Jong Noh, aka John Rae Noh, an individual, and defendant Comming Good, Inc. dba Sentex, jointly and severally, in the sum sued upon by the plaintiff of $62,827.69, plus costs of suit in the sum of $1,344.77, for a total judgment of $64,172.46.

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