Judge: Serena R. Murillo, Case: BC556134, Date: 2023-03-29 Tentative Ruling

Case Number: BC556134    Hearing Date: March 29, 2023    Dept: 29

TENTATIVE

 

Plaintiff Interinsurance Exchange of the Automobile Club’s motion to enforce settlement and enter judgment is GRANTED. 

 

The dismissal entered on May 23, 2017 is vacated. Judgment is entered in favor of Plaintiff and against Defendant Danielle D. Davis in the amount of $5,020.97. 

 

Legal Standard

 

CCP section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, 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.”  (Code Civ. Proc., § 664.6.) 

 

Discussion  

 

Plaintiff seeks a court order setting aside the dismissal and entering judgment against Defendant pursuant to CCP section 664.6. 

 

A.               Retention of Jurisdiction 

 

“‘[V]oluntary dismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.’”  (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917 [quoting In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 967) (alteration in original).)  “‘If requested by the parties,’ however, ‘the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement.’”  (Id. (quoting CCP section 664.6) (emphasis in original).)  “‘Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.’”  (Id. (quoting Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37).) 

 

“A request for the trial court to retain jurisdiction under section 664.6 ‘must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’”  (Id. (quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440).)  “The ‘request must be express, not implied from other language, and it must be clear and unambiguous.’”  (Id. (quoting Wackeen, supra, 97 Cal.App.4th at 440).) 

 

Here, the parties filed a Stipulation for Settlement (Stipulation) containing the parties’ agreement for the court to retain jurisdiction pursuant to CCP section 664.6 to enforce the terms of the Stipulation and enter judgment in the event of default.  (Letofsky Decl., ¶ 4, Ex. 1.)  The Stipulation was signed by the parties and submitted to the Court.  The Court entered the order for dismissal and court retaining jurisdiction pursuant to CCP section 664.6 on May 23, 2017.  As the Stipulation complies with CCP section 664.6 requirements, the Court has retained jurisdiction to enter judgment pursuant to the parties’ Stipulation in this action. 

 

B.               Entry of Judgment 

 

Plaintiff and Defendant entered into the Stipulation on April 21, 2017.  (Id.)  Pursuant to the Stipulation, Defendant would pay Plaintiff a total of $5,000 by making monthly payments of $50 a month by the 15th day each month, beginning on January 15, 2017 until the total amount is paid.  (Id., Exh. 1 ¶ 2.)  The Stipulation provides that “Should Defendant be in default…Judgment will be entered in the amount of $35,977.11 plus interest at the legal rate from January 1, 2017 to the date of default, plus costs and attorney's fees incurred by the plaintiff in enforcing this Stipulation, less any payments Defendant has made at that date.”  (Id., Ex. 1, ¶¶ 4-5.)  Pursuant to paragraph 4 of the Stipulation, Defendant is permitted a 15-day grace period for payment of any installment due.  (Id., Ex. 1, ¶ 4.)  Further, “Plaintiff will provide Defendant written notice of the default.” (Id.)  Should Defendant fail to cure the default, Plaintiff may request entry of judgment.  (Id.)  

Defendant paid Plaintiff the sum of $2,050.88.  (Letofsky Decl., ¶ 6.)  Plaintiff’s counsel sent a notice of default to Defendant on or about September 30, 2020.  (Id., ¶ 5; Ex. 2.)  Defendant has failed to pay any money after defaulting.  (Id., ¶ 5.)  

Plaintiff seeks entry of judgment against Defendant in a total amount of $5,020.97, calculated as follows: 

 

The principal amount: $5,000

 

Less payments made by Defendant to Plaintiff: $2,050.88

 

Interest at 7% per year from July 15, 2020 to January 6, 2023 for a total of 905 days based on the total amount owed of $2,949.12:   $511.85

Attorneys' fees to date in enforcing this Stipulation: 5 hours at counsel’s customary rate of $300 per hour for the preparation of this Application: $1,500

Court filing fee: $60

Total: $5,020.97

 

As Defendant has defaulted, Plaintiff is entitled to entry of such judgment under the Stipulation. 

 

Conclusion

 

For the foregoing reasons, Plaintiff Interinsurance Exchange of the Automobile Club’s motion to enforce settlement and enter judgment is GRANTED. 

 

The dismissal entered on May 23, 2017 is vacated. Judgment is entered in favor of Plaintiff and against Defendant Danielle D. Davis in the amount of $5,020.97. 

 

Moving party is ordered to give notice.