Judge: Steven A. Ellis, Case: BC682317, Date: 2023-11-30 Tentative Ruling

Case Number: BC682317    Hearing Date: November 30, 2023    Dept: 29

Tentative

The motion is GRANTED.

Background

On November 3, 2017, State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed a complaint against Defendants Tomas Figueroa Arroyo, Martin Gonzaga. Guillermo Meza, Gonzalo Alatorre Toledo alleging a cause of action arising out of a vehicle collision that occurred on January 27, 2017.

The matter between Plaintiff and Gonzalo Alatorre Toledo (“Defendant”), was settled in July of 2019, with a Stipulation for Entry of Judgment entered into between the parties on September 30, 20219. A Stipulation for Settlement and Order was filed with the Court on December 23, 2019.

On March 7, 2023, Plaintiff filed this motion to set aside or vacate the dismissal and for entry of judgment.

Legal Standard

Under Code of Civil Procedure, section 664.6: 

 (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.

As the Court of Appeal has explained, “[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.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.)

Discussion

Plaintiff moves to set aside or vacate the dismissal and for entry of judgment. Plaintiff argues Defendant signed the Stipulation agreement, which set out a payment schedule for him to pay $4,500.00. (Motion, 6:10-13.) Defendant paid a total of $1,650.00 and then stopped making payments. (Motion, 6:14; Exhibit 1.) Defendant was sent late payment letters. (Motion, 6:15-16; Exhibits 2 & 3.)

Plaintiff’s evidence includes the stipulation and the order signed by the Court.  (Motion, Exhibit 1.) The order states, “[T]he case is dismissed with prejudice with the court retaining jurisdiction to set aside the dismissal and enforce this stipulation pursuant to C.C.P. § 664.6. (Motion, Exhibit 1, p.4)

The Court finds the Stipulation to be valid and enforceable under Code of Civil Procedure section 664.6.  Defendant ceased making payments, and as of the date of filing this motion, continues to fail to make payments. (Declaration of David B. Pillemer (“Pillemer Decl.”), ¶ 5.)  Plaintiff sent notice of change of address, and payment plan options on January 27, 2022. (Declaration of David B. Pillemer (“Pillemer Decl.”), ¶ 6.) On November 18, 2022, Plaintiff sent Defendant correspondence warning Defendant Plaintiff would seek to enforce the judgment provision of the Stipulation if no payment was received within ten (10) days. (Id.) Plaintiff requests that a judgment of $11,634.17 based on a principal amount of $9,000.00, plus interest of $3,847.52 from January 27, 2017 to March 1, 2023 at 7% per annum and attorney fees of $375.00, and court costs of $61.65, less the payment Defendant already paid of $1,650.00. (Pillemer Decl., ¶ 7.) 

Plaintiff’s request is GRANTED.   Pursuant to the Stipulation and Order, the dismissal is set aside and the Court approves the proposed judgment.

Conclusion

For the foregoing reasons, Plaintiff’s Motion to Set Aside/Vacate the Dismissal and Enter Judgment is GRANTED.

The dismissal is set aside.

Judgment is to be entered in favor of Plaintiff and against Defendant Gonzalo Alatorre Toledo in the amount of $11,634.17. 

Moving party is ordered to give notice.