Judge Stephanie M. Bowick, Case Number: BC652463, Date: 2023-12-19 Tentative Ruling

Judge: Stephanie M. Bowick, Case: BC652463, Date: 2023-12-19 Tentative Ruling

Case Number: BC652463 Hearing Date: December 19, 2023 Dept: 19

After consideration of the briefing filed and oral argument at the hearing, Plaintiff American Express Centurion Bank’s unopposed Motion For Order Vacating Dismissal And Entering Judgment Against Defendants Pursuant To C.C.P. § 664.6 is GRANTED.

Counsel for Plaintiff to give notice to Defendant both by mail and by electronic service to “daviddivona@gmail.com.”

Judgment entered this date.

STATEMENT OF THE CASE

This is a debt collection action. Plaintiff American Express Centurion Bank (“Plaintiff”) brings suit against Defendant David Divona aka David B. Divona (“Defendant”) alleging the following causes of action:

1. Common Count: Book Account, Account Stated; and

2. Quantum Meruit-Reasonable Value.

Plaintiff filed the instant Motion For Order Vacating Dismissal And Entering Judgment Against Defendants Pursuant To C.C.P. § 664.6 (the “Motion”).

GROUNDS FOR MOTION

Pursuant to Code of Civil Procedure section 664.6, Plaintiff moves to enforce the Stipulation for Confidential Entry of Judgment (the “Stipulation”) on the ground that Defendant failed to pay $10,178.76 of $72,836.98 he agreed to pay pursuant to the terms of the Stipulation.

DISCUSSION

Code of Civil Procedure section 664.6 provides, in relevant part, as follows:

(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf.

(Code Civ. Proc., § 664.6(a), (b).)

“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) In deciding motions made under Section 664.6, the court “must determine whether the parties entered into a valid and binding settlement.” (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.)

The term “parties” as used in section 664.6 “means the litigants themselves, and does not include their attorneys of record.” (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) “Requiring the litigants themselves to stipulate to a settlement agreement ‘impress[es] upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement.’” (Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1708 (quoting Levy v. Superior Court (1995) 10 Cal.4th 578, 585).)

“The power of the trial court under Code of Civil Procedure section 664.6, however, is extremely limited. Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Hernandez v. Board of Educ. of Stockton Unified School Dist. (2004) 126 Cal.App.4th 1161, 1176.) “The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.” (Id.).

The Stipulation provides, in pertinent part, as follows:

2. Failing to make any payment on time or should any payment be refused or returned by the bank upon which it is drawn, Defendant shall be in default under the terms of this Stipulation. Defendant shall be notified of such default in writing by email sent to DAVIDDIVONA@GMAIL.COM, and is permitted to cure the default within seven (7) days of the date of the notice. If Defendant fails to cure the default, Plaintiff may then obtain a judgment pursuant to Code of Civil Procedure § 664.6 for the entire balance owed by Defendant in the amount of $75,083.08, plus court costs expended, less any payments made to date and may execute on the judgment immediately after entry, upon application.

(Kambrie L. Keith Decl., ¶ 5, Ex. A at § 2.)

After consideration of the supplemental declaration of Kambrie L. Keith, the Court finds that Plaintiff has complied with Section 2 of the Stipulation by giving Defendant proper notice of the default and opportunity to cure the default. (Kambrie L. Keith Supp. Decl., ¶ 10, Ex. A.)

Based on the evidence presented by Plaintiff, the Court finds that Defendant breached the Stipulation by failing to pay an outstanding balance of $10,178.76 and that Defendant is therefore entitled to entry of judgment. (Keith Supp. Decl. at ¶ 15.)

The Court also awards the $78.84 in requested costs. (See Motion, p. 5 (citing Ex. D [verified memorandum of costs].) Section 2 of the Stipulation provides for the recovery of such costs.

Accordingly, the Motion is GRANTED.