Judge: Walter P. Schwarm, Case: 30-2020-01167718, Date: 2022-11-22 Tentative Ruling

Plaintiff’s (John Elwis) unopposed Motion to Enforce Settlement (Motion), filed on 6-17-22 under ROA No. 30, is DENIED.

Code of Civil Procedure section 664.6 states in part, “(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.”

J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984-985 (J.B.B.), states, “As material, Code of Civil Procedure section 664.6 provides: ‘If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court ... for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.’ (Italics added.) ‘Because of its summary nature, strict compliance with the requirements of [Code of Civil Procedure] section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.’ [Citation.] Settlement of a lawsuit implicates a substantial right of the litigants; therefore, the Supreme Court has concluded that ‘parties’ in Code of Civil Procedure section 664.6 means the litigants personally and does not include their attorneys of record [citation], even if the parties expressly authorized the agent to enter into a settlement on their behalf [citation]. ‘The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.’ [Citation.] Thus, the statute ‘require[s] the signatures of the parties seeking to enforce the agreement under [Code of Civil Procedure] section 664.6 and against whom the agreement is sought to be enforced.’ [Citation.]

The Motion argues that an order enforcing settlement is required because: “. . . Defendant has failed to perform under the terms of the settlement agreement, and he is therefore in violation of said agreement. Because the Court has jurisdiction over this matter to resolve this dispute, Plaintiff respectfully requests that this Court order Defendant to make the payment of $2,500.00 forthwith, along with $183.56 in interest, plus $2,036.50 in attorney’s fees and costs for bringing this Motion.” (Motion, 5:22-26.)

The declaration in support of the Motion provides, “On January 20, 2022, the parties reached a settlement, whereby Defendant agreed to pay the sum of $2,500.00 within 30 days of Defendant receiving a signed copy of the written settlement agreement (‘Settlement Agreement’) from Plaintiff. A true and correct copy of the email exchange evidencing that the parties reached an agreement is attached hereto as Exhibit A and incorporated herein by this reference. . . . [¶] On January 28, 2022, I sent the settlement agreement to my client who immediately sent it back to me with his signature. Thereupon, I sent it back to Defendant’s counsel. A true and correct copy of this email and settlement agreement signed by Plaintiff are attached hereto as Exhibits C and D, respectively, and are incorporated herein by this reference. [¶] Defendant failed to provide the cash settlement within 30 days of January 28, 2022 as indicated in the settlement agreement. . . . [¶] On March 30, 2022, I emailed Defendant’s counsel again asking for the check. I received no respond. Since then, I have made multiple phone calls and left messages for counsel asking for status of the settlement check. To date, I have not received anything.” (Adviento Decl., ¶¶ 2, 4, 5, and 9.)

Exhibit D to the declaration in support of the Motion does is entitled “Settlement Agreement and Release” (Agreement). (Adviento Decl., ¶ 4 and Exhibit D.)  The Agreement, however, reflects that Plaintiff and his attorney signed the Agreement.  The Agreement does not show that Defendant or Defendant’s signed the Agreement.  Without the signatures of Defendant or Defendant, the Agreement is not a writing signed by the parties withing the meaning of Code of Civil Procedure section 664.6.  Since the Agreement is not a writing signed by the parties, the court does not have the authority to enforce the Agreement pursuant to Code of Civil Procedure section 664.6.

Based on the above, the court DENIES Plaintiff’s (John Elwis) unopposed Motion to Enforce Settlement filed on 6-17-22 under ROA No. 30.

Court Clerk is to give notice.