AMERICAN EXPRESS BANK FSB VS ROBERT BROWN III

Tentative Rulings

Case Number: KC067741    Hearing Date: November 22, 2019    Dept: J

HEARING DATE: Friday, November 22, 2019

NOTICE: OK

RE: American Express Bank, FSB v. Brown III, et al. (KC067741)

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Plaintiff American Express Bank, FSB’s MOTION FOR ORDER VACATING

DISMISSAL AND ENTERING JUDGMENT AGAINST DEFENDANT PURSUANT TO

CCP § 664.6

Responding Party: None (unopposed, as of 11/12/19, 10:56 a.m.; due 11/8/19)

Tentative Ruling

Plaintiff American Express Bank, FSB’s Motion for Order Vacating Dismissal and Entering Judgment against Defendant Pursuant to CCP § 664.6 is GRANTED.

Background

Plaintiff American Express Bank, FSB (“Plaintiff”) alleges that Robert Brown III aka Robert E. Brown 3 aka Robert Eldon Brown aka Roberte E. Brown (“Brown”) and Agritec International Ltd., which will do business in California as Cleantech Environmental, Inc. (“Cleantech”) applied for and were issued a Business Platinum Card for the purpose of obtaining goods and/or services and/or cash advances. Plaintiff alleges that Brown and Cleantech have failed to make payments on their credit card balance. On June 26, 2015, Plaintiff filed a complaint, asserting causes of action against Brown, Cleantech and Does 1-20 for:

1. Common Counts: Book Account, Account Stated

2. Common Counts: Book Account, Account Stated

3. Quantum Meruit—Reasonable Value

   On October 29, 2015, Plaintiff filed a “Stipulation for Conditional Entry of Judgment” and dismissed Cleantech, without prejudice; that day, the “Order for Entry of Stipulation for Conditional Entry of Judgment and Dismissal Without Prejudice Pursuant to CCP § 664.6” was filed.

Legal Standard

CCP § 664.6 provides that “[i]f 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.”

Discussion

Plaintiff moves the court for an order, per CCP § 664.6, vacating the dismissal in this case and entering judgment against Brown.

On or about July 21, 2015, Brown agreed to settle this matter and Plaintiff prepared a Stipulation for Conditional Entry of Judgment (“Stipulation”) containing the terms agreed upon by the parties. (Eum Decl., ¶4, Exh. A.) Pursuant to the terms of the Stipulation, Brown agreed to pay Plaintiff $491,950.88, inclusive of court costs, in monthly payments. (Id., ¶5, Exh. A.)

The Stipulation provides, in relevant part, as follows:

“2. Failing to make any payment on time or should any payment be refused or returned by the bank upon which it is drawn, Defendant shall be in default under the terms of this Stipulation.

Defendant shall be notified of such default in writing by email sent to RBROWN@CLEANTECHENV.COM, and is permitted to cure the default within seven (7)

days of the date of the notice. If Defendants [sic] fail to cure the default, Plaintiff may then obtain a judgment pursuant to Code of Civil Procedure § 664.6 for the entire balance owed by

Defendants [sic] in the amount of $491,485.88, plus court costs expended, less any payments made to date and may execute on the judgment immediately after entry, upon application.” (Id.)

On or about October 29, 2015, the court dismissed the matter pursuant to CCP § 664.6, as was agreed upon by the parties. (Id., ¶6, Exh. B.)

Brown has made payments in the amount of $481,005.00 toward the settlement amount agreed. (Id., ¶7.) To date, Brown has failed to make payments on the remaining settlement balance. (Id.)

On May 20, 2019, Plaintiff’s counsel sent a letter via email to RBROWN@CLEANTECHENV.COM, advising of Brown’s defaulted status. (Id., ¶8, Exh. C.) Said letter informed that unless Brown’s default was cured within seven days of the date of the letter, Plaintiff might move forward with filing an application to obtain judgment pursuant to CCP § 664.6. (Id.)

As of the August 16, 2019 date of counsel’s declaration, Brown has not cured the default. (Id., ¶9). The motion, moreover, is unopposed. Plaintiff’s motion is GRANTED.