Judge Ralph C. Hofer, Case Number: EC065376, Date: 2023-08-18 Tentative Ruling

Plaintiff American Express Centurion Bank brings this action to collect sums allegedly due to plaintiff by defendant Mario Apodaca and his various akas on an American Express credit card account. The complaint alleges that the amount due, owing, and unpaid is $33,024.13.

On February 16, 2017, the court signed and filed an Order for Entry of Stipulation for Conditional Entry of Judgment and Dismissal Pursuant to CCP section 664.6, ordering that the Stipulation for Conditional Entry of Judgment filed concurrently was entered, and that the matter was dismissed, and the court would have jurisdiction pursuant to CCP section 664.6 over the parties to enforce the Stipulation until performance in full of the terms.

“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 the matter could be dismissed but that the court nevertheless reserved personal and subject matter jurisdiction over the parties to enforce the settlement until the settlement had been fully performed pursuant to CCP section 664.6. [Ex. A, Stipulation, para. 4]. The order dismissing the case also orders that the court will retain jurisdiction pursuant to CCP section 664.6. [See Ex. B, Order for Entry of Stipulation].

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 recover from defendant the sum of $32,129.13 to be paid according to a payment schedule, but that if defendant defaulted by failing to make a payment on time or having a payment refused by the bank, defendant would be notified of such default in writing by email and would be permitted to cure the default within seven days of the date of notice. [Keith Decl. paras. 5, 6, Ex. A. Stipulation, paras. 1, 2].

The Stipulation provides that if defendant fails to cure the default, plaintiff may then obtain a judgment pursuant to CCP section 664.6 for the entire balance owed by plaintiff in the amount of $33,024.13, plus court costs expended, less any payments made to date and may execute on the judgment immediately after entry. [Ex. A, Stipulation, para. 2].

Plaintiff submits evidence that defendant has made payments in the amount of $12,950.00 toward the settlement amount agreed but has 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 defendant as agreed by the Stipulation. [Keith Decl., para. 11, Ex. C]. The email notice appears sent to the proper email address, is dated May 10, 2023, and requests that to bring the account current payment must be made by May 17, 2023. [Keith Decl., Ex. C]. Plaintiff indicates that there currently remains an outstanding balance due to plaintiff of $18,108.09. [Keith Decl., para. 12].

Plaintiff seeks judgment in the total sum of the outstanding balance due of $18,108.09, plus costs of suit in the sum of $78.84, for a total sum of $18,186.39. Plaintiff submits a memorandum of costs, seeking $61.65 in filing and motion fees, and $17.19 for electronic filing or service fees. [Keith Decl., Ex. D]. This totals $78.84, as requested, and the costs appears proper on their face and can be awarded as requested. As noted, the Stipulation provides for a judgment of $33,024.13, “plus court costs expended, less any payments made to date.” [Ex. A, para. 2]. The sum of $33,024.13 less $12,950.00 is $20,074.13, more than what the motion is seeking. Plaintiff appears to be seeking the total due at the time of stipulation of $32,129.13 less the $12,950 paid, which would be the total $19,179.13, plus costs of suit of $78.84, for a grand total of $19,257.97. This figure would still be greater than the sum being sought, $18,108.09, plus costs of suit of $78.84, for a grand total of $18,186.93 requested. This result appears to be some sort of calculation error. In any case, the Court finds that plaintiff has established it is entitled to at least the sum sought. The Court will not award any greater sum unless this motion is withdrawn, and notice given to defendant that a higher sum is being sought.

Motion for Order Vacating Dismissal 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 dismissal entered on February 16, 2017 is ordered vacated and judgment is entered in favor of plaintiff American Express Centurion Bank in accordance with the Stipulation for Conditional Entry of Judgment executed by the parties on November 15, 2023. Judgment is awarded against defendant Mario Apodaca, aka Mario Fernando Apodaca, aka Mario Fernando Gonzalez, an individual, in the sum of the total sum sought (which is lesser than the sum due under the Stipulation) for a total judgment of $18,186.39.

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