Judge: Stephen Morgan, Case: MC026934, Date: 2022-09-08 Tentative Ruling

Case Number: MC026934    Hearing Date: September 8, 2022    Dept: A14

Background

 

This is a collection action. On April 09, 2018, Plaintiff National Collegiate Student Loan Trust 2006-3, a Delaware Statutory Trust(s) (“Plaintiff”), and Defendant Sharay Ferguson (“Defendant”) filed a conditional stipulated settlement with the Court. The conditional  stipulated settlement required: (1) payment of the sum of $31,167.04 from Defendant to Plaintiff as full resolution of this lawsuit; (2) the payments would be divided into a one time payment made via personal check for $260.00 on January 25, 2018, monthly payments via personal check for $260.00 beginning February 25, 2018, and a final payment made via personal check for $227.04 on January 25, 2027; (3) terms regarding default in which judgment would be entered in favor of Plaintiff and against Defendant; and (4) a waiver of right  to trial or further contest on behalf of Defendant. The Court notes that the conditional settlement was signed by Defendant on January 24, 2018 and by Plaintiff on March 26, 2018. On April 10, 2018, Judge Yep signed a court order stating (1) the matter is dismissed without prejudice and (2) the Court shall retain jurisdiction under Cal. Code Civ. Proc. § 664.6 to set aside said dismissal and enter a judgement upon the showing of default of the terms of the stipulation.  

 

On June 06, 2022, Plaintiff filed its Motion to Vacate Dismissal Pursuant to Cal. Code Civ. Proc. § 664.6 (“Motion to Vacate”). The initial Motion to Vacate Dismissal Pursuant to Cal. Code Civ. Proc. § 664.6 was denied due to discrepancies between the Memorandum of Points and Authorities and Plaintiff’s counsel’s declaration.

 

On August 08, 2022, Plaintiff filed a new Motion to Set Aside/Vacate Dismissal.

 

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).) The hearing is scheduled for September 08, 2022. As such, an Opposition was due on August 25, 2022. Should an Opposition be filed, it is now untimely.

 

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Legal Standard

 

Standard for Vacating Dismissal – “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.”¿ 

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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.)¿¿ 

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“[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 – Plaintiff requests that the Court set aside the dismissal as Plaintiff has not made any payments since December 06, 2018.  

 

Here, the conditional stipulated settlement between Plaintiff and Defendant included the following terms regarding default: 

 

The Parties herein stipulate, agree and acknowledge that the above entitled Court shall dismiss this action without prejudice, as to DEFENDANT, and further agree that this Court, at the request of PLAINTIFF, and without any further notice to DEFENDANT, may reopen the case, resume jurisdiction under California Code of Civil Procedure section 664.6, to enter judgment as outlined in Paragraph 1 above, upon a showing of DEFENDANT [sic] failure to comply with the terms of payment below. The PARTIES further stipulate and agree to, and do, waive all statutes of limitations and any other legal impediment or bar to this Court retaking jurisdiction of this case under the circumstances set forth above. 

 

(See Conditional Stipulated Settlement ¶ 4.)  

 

The request was made during the pendency of the action, prior to the judgment signed by Judge Yep; the Judgement signed by Judge Yep does not dismiss the case in its entirety as it states that the Court retains jurisdiction under Cal. Code Civ. Proc. § 664.4 to set aside the dismissal and enter judgment upon a showing of default; the conditional stipulated settlement was stipulated to by both parties themselves; and the conditional stipulated settlement was presented in writing and signed by both parties. 

 

Thus, the Court retained its jurisdiction over this matter under Cal. Code Civ. Proc. § 664.4. 

 

The stipulation laid out the following:

 

Defendant shall pay to Plaintiff the total sum of $31,167.04 on the following terms:

 

Plaintiff presents that Defendant defaulted on payments on December 06, 2018. Plaintiff concedes that Defendant had paid a total of $8,330.00.

 

Defendant has not presented otherwise.

 

Accordingly, the Court GRANTS the Motion to Vacate Dismissal Pursuant to Cal. Code Civ. Proc. § 664.6.

 

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Conclusion

 

Plaintiff National Collegiate Student Loan Trust 2006-3, a Delaware Statutory Trust’s Motion to Vacate Dismissal Pursuant to Cal. Code Civ. Proc. § 664.6 is GRANTED.