Judge: Stephen Morgan, Case: 21AVCV00378, Date: 2023-08-15 Tentative Ruling
Case Number: 21AVCV00378 Hearing Date: August 15, 2023 Dept: A14
Background
This is a Common Counts action. Plaintiff
American Express National Bank (“AMEX”) alleges that Defendant Patricia De
Barros Pulido (“Defendant”) defaulted on her credit card account in the amount
of $53,197.97.
On May 10, 2021, Plaintiff filed
its Complaint alleging one cause of action for Common Counts.
On August 10, 2021, the parties
entered a stipulation to settle this action.
On June 15, 2023, AMEX filed this
Motion to Vacate the Conditional Dismissal and for Entry of Judgment Pursuant
to Cal. Code Civ. Proc. §664.6.
No Opposition has been filed. “All
papers opposing a motion so noticed shall be filed with the court and a copy
served on each party at least nine court days [. . .] before the hearing.”
(Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within
which a right may be exercised or an act may be done, does not apply to a
notice of motion, papers opposing a motion, or reply papers governed by this
section.” (Ibid.) The hearing is set for August 15, 2023. Accordingly,
an Opposition must have been filed by August 02, 2023. Should an Opposition be
filed, it is now untimely.
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Legal Standard
Standard for Vacating Judgment Under Cal. Code Civ.
Proc. § 664.6 – “Section 664.6 empowers a court
to enforce a settlement agreement by way of a summary procedure if certain
requirements are satisfied. [citations].” (Harris v. Rudin, Richman &
Appel (1999) 74 Cal.App.4th 299, 304.)¿
¿
Cal. Code Civ. Proc. §664.6 provides: “If
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.”¿¿
¿¿
The second sentence of Cal. Code Civ. Proc.
§ 664.6 means “ ‘that even though a settlement may call for a case to be
dismissed, or the plaintiff may dismiss the suit of its own accord, the court
may nevertheless retain jurisdiction to enforce the terms of the settlement,
until such time as all of its terms have been performed by the parties, if
the parties have requested this specific retention of jurisdiction.’
[Citation]” (Sayta v. Chu (2017) 17 Cal.App.5th 960, 966.)¿¿¿
¿¿
“[T]he request for retention of jurisdiction
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.’ [Citation]” (Id.)¿ (See
also Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.)¿¿
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Discussion
Application – AMEX
presents that the settlement agreement included terms whereby Defendant would
make payments to Plaintiff and, if Defendant failed to make the payments and
did not cure their default after written notice, Plaintiff was entitled to a
judgment for the outstanding balance owed on Defendant's account. Defendant
defaulted on the agreement. AMEX presents that it mailed a notice of default to
Defendant on March 03, 2022, Defendant has not cured the default, and now it
moves to enforce the terms of the agreement and have judgment entered for the
outstanding balance owed on the account plus costs,
AMEX cites to Cal. Code Civ.
Proc. § 664.6 and directs the Court to the declaration of its counsel for
reasons that judgment should be entered in favor of AMEX and against Defendant.
The declaration of counsel, Scott D. Dyle (“Dyle”), sets forth a timeline for
this action and the amount sought. Dyle also provides the stipulation and the
letter to cure as exhibits.
The Court notes that Dyle’s
declaration includes some errors such as the date of filing of this action.
The stipulation reads, in
relevant part:
Plaintiff AMERICAN
EXPRESS NATIONAL BANK (“Plaintiff”) and Defendant PATRICIA DE BARROS PULIDO
A/K/A PATRICIA PULIDO (“Defendant”) stipulate as follows:
1. This matter has
settled. This stipulation contains the entire agreement between the parties.
There are no oral or written agreements or understandings not contained herein.
2. This stipulation
only applies to Defendant's account ending in 3007.
3. Defendant has 14
days to do the following: (1) sign and return this stipulation; (2) sign and
return the notice of acknowledgement and receipt; and (3) submit payment for
the first appearance filing fee to Plaintiff’s counsel. This settlement between
Plaintiff and Defendant is contingent upon Defendant's timely completion of
these steps. Defendant acknowledges that the failure to complete all of these
steps could result in Plaintiff canceling the settlement agreement and
continuing with litigation.
4. Plaintiff and
Defendant agree that Defendant is indebted to Plaintiff in the amount of
$53,197.97 on
Defendant's account ending in 3007.
5. In the event that
Defendant fails to comply with the terms of this settlement agreement,
Defendant agree that the Court can enter a judgment against Defendant in the
amount of $53,197.97 plus costs. Defendant shall receive a credit for any
payments made under this agreement. The parties agree that if the Court enters
judgment for this amount that it is not liquidated damages and is an entry of
judgment for the amount Defendant truly owes Plaintiff on the account.
Plaintiff and Defendant further agree that the amount of damages in this case
is not speculative or uncertain and that Plaintiff is entering into this
agreement solely because of Defendant's documented hardship.
6. Defendant agrees
to pay Plaintiff the settlement sum of $53,197.97 on the account ending in
3007. The settlement sum shall be paid as follows: Defendant agrees to pay
Plaintiff $1,000.00 on or before June 18, 2021. Thereafter, Defendant agrees to
pay Plaintiff consecutive monthly payments of $1000.00 due on or before the
15th day of each and every month commencing July 2021 through and including
November 2021. Thereafter, Defendant agrees to pay Plaintiff consecutive
monthly payments of $2,622.11 due on or before the 15th day of each and every
month commencing December 2021 through and including April 2023. Then, one
final payment of $2,622.10 is due on or before May 15, 2023.
[. . .]
11. If, and only if,
all payments are timely received and all payments have cleared the account(s)
upon which they were drawn, Plaintiff shall request that the Court dismiss the
case with prejudice.
12. In the event of
a default, Plaintiff shall be entitled to file with the Court a request to
enter a judgment consistent with paragraph 5 above. Prior to filing the request
with the Court, Plaintiff will mail written notice of the default to Defendant.
Defendant shall have 14 days from the date of mailing to cure their default.
13. If Defendant
fails to cure the default within the allotted time, Plaintiff may immediately
move for entry of judgment against Defendant under all applicable California
law, including but not limited to Code of Civil Procedure section 664.6, and to
file a motion to have judgment entered against Defendant consistent with
paragraph 5 above.
14. Acceptance of
any one or more late payments by Plaintiff shall not constitute a waiver or in
any way prejudice Plaintiff’s rights to receive timely payments thereafter, or
to declare a default by Defendant. Plaintiff, in its sole discretion, has the
right to declare a default if any payment is not timely made, regardless of any
previous failure to do so.
15. The parties
voluntarily, knowingly, and intelligently waive the civil due process rights to
trial and the provisions of California Code of Civil Procedure, §§ 581,
583.160, 583.210, 583.310, 583.360, 583.410, 583.420, and all other provisions
of California law regarding dismissal of actions for failure to prosecute or to
bring an action to trial within any time limits.
[. . .]
18. This Stipulation
is entered into in the State of California, and Defendant and Plaintiff agree
that this Stipulation and the parties to this Stipulation are to be governed
by, construed and enforced under the laws of the State of California, including
but not limited to Code of Civil Procedure section 664.6.
[. . .]
21. The parties
further agree that the Court may dismiss Case 21AVCV00378 and retain
jurisdiction pursuant to Code of Civil Procedure section 664.6.
(Exh. A.)
Paragraphs 18 and 21 of the
stipulation incorporate Cal. Code Civ. Proc. §664.6.
Exh. B shows that a letter to
cure was sent on March 03, 2022, advising Defendant that she was to make
payments consistent with the signed stipulation, had not done so, and had 30
days to cure or AMEX would seek judgment.
Defendant has not opposed this
motion. The Court construes Defendant’s failure to oppose as a concession on
the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d
723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion
"it is assumed that [nonmoving party] concedes" that ground].)
Accordingly, the motion is
GRANTED.
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Conclusion
Plaintiff American Express
National Bank’s Motion to Vacate the Conditional Dismissal and for Entry of
Judgment Pursuant to Cal. Code Civ. Proc. §664.6 is GRANTED.