On 04/05/2016 CALIFORNIA CAPITAL INSURANCE CO filed a Contract - Insurance lawsuit against AMBER COOK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CALIFORNIA CAPITAL INSURANCE CO.
FLICK WOODLOCK G.
DOES 1 TO 50
GRAHAM & ASSOCIATES
WERNER TROY ESQ.
12/16/2016: NOTICE OF MOTION FOR SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT; ETC
12/20/2016: EX PARTE APPLICATION REQUESTING ORDER TO CONTINUE TRIAL DATE; DECLARATION OF NOTICE; MEMORANDUM IN SUPPORT; [PROPOSED] ORDER
3/28/2017: AMENDED NOTICE OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
7/26/2017: PLAINTIFF'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
7/26/2017: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
8/3/2017: REPLY BRIEF TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
8/9/2017: PLAINTIFF'S SUPPLEMENTAL WRITTEN OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS' RE: MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
8/9/2017: Minute Order
8/16/2017: NOTICE OF RULING
8/24/2017: NOTICE RE: CONTINUANCE OF HEARING
9/7/2017: Minute Order
9/13/2017: [PROPOSED] JOINT STATEMENT OF THE CASE
9/13/2017: PLAINTIFF CALIFORNIA CAPITAL INSURANCE CO.'S REQUEST AND INDEX FOR JURY INSTRUCTIONS
9/13/2017: PROOF OF SERVICE OF TRIAL DOCUMENTS
9/13/2017: JOINT WITNESS LIST
at 09:00 AM in Department 78; Final Status Conference (Final Status Conference; Off Calendar) -Read MoreRead Less
REQUEST FOR DISMISSALRead MoreRead Less
Request for Dismissal; Filed by Plaintiff/PetitionerRead MoreRead Less
Miscellaneous-Other; Filed by Plaintiff/PetitionerRead MoreRead Less
Motion in Limine; Filed by Plaintiff/PetitionerRead MoreRead Less
[PROPOSED] JOINT STATEMENT OF THE CASERead MoreRead Less
JOINT WITNESS LISTRead MoreRead Less
JOINT EXHIBIT LISTRead MoreRead Less
PLAINTIFF'S MOTIONS IN LIMINE; DECLARATION OF BRUCE N. GRAHAM PURSUANT TO LOCAL RULE 337Read MoreRead Less
PLAINTIFF CALIFORNIA CAPITAL INSURANCE CO.'S REQUEST AND INDEX FOR JURY INSTRUCTIONSRead MoreRead Less
Case Management Statement; Filed by Plaintiff/PetitionerRead MoreRead Less
ANSWER TO UNVERIFIED COMPLAINTRead MoreRead Less
Answer; Filed by Amber Cook (Defendant)Read MoreRead Less
ANSWER TO UNVERIFIED COMPLAINTRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by California Capital Insurance CO. (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC616016 Hearing Date: March 02, 2020 Dept: 78
CALIFORNIA CAPITAL INSURANCE CO.,
AMBER COOK, et al.,
March 2, 2020
[TENTATIVE] RULING RE:
PLAINTIFF’S motion for relief from dismissal and for entry of judgment pursuant to stipulation.
Plaintiff California Capital Insurance Co.’s motion for relief from dismissal and entry of judgment pursuant to stipulation is DENIED.
Background & procedural history
On April 5, 2016, Plaintiff California Capital Insurance Co. (“Plaintiff”) filed a complaint against Defendants Amber Cook (“Cook”) and Woodlock G. Flick (“Flick”) (collectively “Defendants”), asserting causes of action for breach of contract, fraud, and intentional tort.
On May 25, 2016, Defendants filed answers to the complaint.
On August 9, 2017, the Court denied Defendants’ motion for summary judgment.
On September 18, 2017, Plaintiff filed a Request for Dismissal, dismissing the complaint without prejudice.
Plaintiff moves for an order relieving it from the voluntary dismissal entered on September 18, 2017, as to Flick only, and entering judgment against Flick in the amount of $152,322.22, plus interest, attorneys’ fees, and costs, pursuant to a stipulation of the parties.
C.C.P. §664.6 provides, as follows: “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.”
The second sentence of C.C.P. §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.)
“[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.)
Plaintiff submitted evidence the parties entered into a Stipulation for Dismissal and for Reinstatement of Action and Entry of Judgment on September 17, 2017 (“Stipulation”). (Declaration of Graham ¶2; Exhibit A.) The Stipulation provides, in pertinent part, as follows:
THEREFORE, it is stipulated by and between the parties as follows:
That the plaintiff shall dismiss this action without prejudice, but subject to the reinstatement of this action against Defendants as set forth herein;
Defendants pay to the Plaintiff, as follows: A) that upon execution of this agreement
Defendants shall pay the sum of $1000.00; B) Defendants shall make further installment payments to Plaintiff at the rate of $1000.00 per month…commencing October 1, 2017, until the whole of the discounted admitted liability has been paid…
…In the event that any such payment(s) promised by Defendants are not made as so promised…, then Defendants shall be in default. Plaintiff agrees to provide written notice of such default and Defendants shall have 15 days from the date of notice of that default to cure the default. If not so cured, Defendants shall lose their right to make deferred payments and all outstanding sums owing on the undiscounted admitted liability shall be accelerated and otherwise immediately due and Plaintiff shall be entitled to return to this court ex parte and upon declaration of Plaintiff counsel attesting to such default and secure relief from the filing of the request for dismissal and secure a default judgment against Defendants for the entire admitted liability (less credits for payments received), including reasonable attorney fees and costs, plus accrued interest, and Plaintiff shall thereupon be entitled to all remedies available to it for the satisfaction of the judgment and to enforce the judgment to the fullest extent permitted by law…
The Los Angeles County Superior Court shall continue to retain jurisdiction to enforce the terms of this stipulation as may be reasonably required.
(Declaration of Graham ¶2; Exhibit A.) Plaintiff submitted evidence suggesting Flick is in default and failed to bring the account current within 15 days of the default notice. (Declaration of Graham ¶¶3-6; Exhibit C.)
Plaintiff did not establish Flick was timely and properly served with the instant motion. Plaintiff filed a proof of service indicating Flick was served with the instant motion via mail on October 10, 2019. However, the proof of service is not signed. Moreover, the address for Flick on the proof of service does not match the address for Flick on the Substitution of Attorney filed on August 29, 2017.
Even assuming, arguendo, timely and proper service of the motion, as well as, proper notice of the default, the Court lacks subject matter jurisdiction to entertain the motion. The parties entered into the Stipulation on September 17, 2017, and Plaintiff filed a Request for Dismissal on September 18, 2017, dismissing the action without prejudice. (See Sayta at 967-968 (“the trial court did not have subject matter jurisdiction to entertain a section 664.6 motion on the merits ‘because it lost such jurisdiction over the case when the last of the requests for dismissal was filed’ [Citations]”). The “parties failed to request, before dismissal, that the trial court retain jurisdiction to enforce the settlement, or alternatively seek to set aside the dismissals,” and, consequently, the Court lacks jurisdiction to entertain this motion. (Sayta at 962.)
The parties’ agreement that Plaintiff shall be entitled to return to the court ex parte and secure relief from the filing of the request for dismissal is insufficient. (See Id. at 967 (“Wackeen does not stand for the proposition that parties may confer jurisdiction on trial courts by including language in a settlement agreement but not asking the court to retain jurisdiction. [Citation] ‘[S]ettlement language purporting to vest the trial court with retained jurisdiction after the dismissal [is] a nullity: Subject matter jurisdiction cannot be conferred by consent, waiver or estoppel.’ [Citation]”).) There is nothing before the Court to suggest the parties communicated the Stipulation to the Court before the dismissal and/or requested the Court retain jurisdiction for purposes of C.C.P. §664.6 motions. (Id. at 967.) “The parties were required to present to the trial court a proper request to retain jurisdiction for purpose of section 664.6 motions,” and failed to do so. (Id.) (Emphasis Added.) (See also Weil & Brown, California Practice Guide, Civil Procedure Before Trial §12:982.1 (“CCP 664.6 provides for the retention of personal jurisdiction to enforce the settlement ‘if requested by the parties,’ but it is not clear how such a ‘request’ is to be made. Clearly, it is not enough simply to provide for such retention in the settlement agreement. Rather, the parties should stipulate to a judgment of dismissal that expressly provides that the court retains jurisdiction to enforce the settlement agreement. Otherwise, once the case is dismissed, a party in breach of the settlement agreement may argue successfully that the court lacks jurisdiction to enforce it.”).)
Based on the foregoing, Plaintiff’s motion is denied.
Plaintiff is ordered to give notice.
DATED: March 2, 2020
Hon. Robert S. Draper
Judge of the Superior Court
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