ALICE YICK VS SHAWN HOLMAN

Tentative Rulings

Case Number: 17CHLC01023    Hearing Date: November 07, 2019    Dept: 94

VACATE DISMISSAL; ENTER JUDGMENT PURSUANT TO STIPULATION

(CCP §§ 473(b); 664.6)

TENATIVE RULING:

Plaintiff Alice Yick’s Motion to Vacate Dismissal and Enter Judgment Pursuant to Stipulation is GRANTED. THE DISMISSAL ENTERED ON MARCH 26, 2019 IS HEREBY VACATED AND JUDGMENT IS ENTERED IN THE TOTAL AMOUNT OF $5,965.00.

RELIEF REQUESTED: Plaintiff moves for an order vacating its dismissal of this action and entering judgment against Defendant pursuant to the terms of the parties’ settlement agreement.

OPPOSITION: None filed as of November 4, 2019.

ANALYSIS:

Plaintiff Alice Yick (“Plaintiff”) filed the instant action for breach of lease agreement against Defendant Shawn Holman (“Defendant”) on August 10, 2017. Following Plaintiff’s failure to appear at an OSC re Dismissal, the Court dismissed the action without prejudice on March 26, 2019. On September 23, 2019, Plaintiff filed the instant Motion to Vacate Dismissal and Enter Judgment. To date, no opposition has been filed.

Vacate Dismissal

Plaintiff seeks relief from the dismissal pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

The Motion is timely brought less than six months after dismissal of the action and supported by an attorney affidavit of fault. Plaintiff’s attorney explains that he removed the OSC re Dismissal from his calendar following settlement negotiations with Defendant wherein it appeared that the case would be voluntarily dismissed upon receipt of Defendant’s first payment. (Motion. Flanagan Decl., ¶¶4-5.) Accordingly, Plaintiff’s Motion to Vacate Dismissal is granted. The dismissal entered on March 26, 2019 is hereby vacated.

Enter Judgment Pursuant to Parties’ Settlement Agreement

Plaintiff also seeks entry of judgment against Defendant pursuant to the parties’ settlement agreement. The motion is brought pursuant to Code of Civil Procedure section 664.6, which 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.

(Code Civ. Proc., § 664.6.) Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Accordingly, “parties” under section 664.6 means the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 (holding “we conclude that the term ‘parties’ as used in section 664.6 means the litigants themselves, and does not include their attorneys of record.”).) Additionally, the settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.)

Plaintiff has presented the court with a settlement agreement that satisfies the aforementioned statutory requirements as it was signed by both parties. (Motion, Flanagan Decl., Exh. A, p. 3.) The settlement agreement provides that Defendant would make monthly payments until the stipulated judgment was paid in full. (Id. at Exh. A, ¶1.) The settlement agreement also provides that upon Defendant’s default, judgment in the amount of the stipulated judgment would be entered in Plaintiff’s favor, less payments made by Defendant, plus court costs, attorneys’ fees, and liquidated penalties. (Id. at Exh. A, ¶5.) As of the filing of this motion, Defendant made no payment under the settlement agreement and therefore owes $2,080.00 principal, plus costs, attorneys’ fees and liquidated penalties. (Id. at ¶8.) Accordingly, Plaintiff is entitled to entry of judgment against Defendant in the amount of $2,080.00 principal, $3,000.00 in penalties, and $885.00 in attorneys’ fees, for a total of $5,965.00.

Moving party to give notice.