Case Number: ****6810 Hearing Date: April 30, 2021 Dept: D
Case No: ****6810
Case Name: ARF Financial, LLC v. Chef Extraordinare BBQ Restaurant
MOTION TO ENTER JUDGMENT PURSUANT TO STIPULATION
[CCP ; 664.6]
Moving Party: Plaintiff ARF Financial, LLC
Responding Party: Defendant Merry Ann Webb, aka Mary Ann Webb, Tracy
Webb (No Opposition)
Vacate dismissal and enter judgment pursuant to Stipulation pursuant to CCP section 664.6
SUMMARY OF FACTS:
This is a collections action pursuant to which plaintiff ARF Financial, LLC seeks to recover sums allegedly due under a loan agreement with defendant Chef Extraordinare BBQ Restaurant and Elite Catering Service, LLC, which agreement was guaranteed by defendant Merry Ann Webb, aka Mary Ann Webb; Tracy Webb.
The file shows that on December 21, 2017 plaintiff filed a Stipulation to Dismiss the Action with Prejudice & Retain Jurisdiction Pursuant to CCP section 664.6. The Stipulation was signed by plaintiff and defendant Merry Ann Webb, and the court signed the order thereon that date.
CCP ; 664.6 provides, in pertinent part:
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court...for settlement of the case,...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.”
In this case, plaintiff and defendant Webb entered into a written Stipulation for Entry of Judgment signed by the parties outside of the presence of the court. [Ex. 1]. The Stipulation expressly provides that “the Parties further stipulate allow [sic] this Court to retain jurisdiction pursuant to CCP section 664.6 to enforce all terms of The Stipulation and any other matters between these parties.” [Stipulation, para. 4].
The Second District in Weddington Productions, Inc. v. Flick (1998) 60 Cal. App.4th 793 held that a trial court may on a section 664.6 motion receive evidence, determine disputed facts and enter the terms of a settlement agreement as a judgment, but may not create the material terms of a settlement as opposed to deciding what terms to which the parties themselves agreed. Weddington, at 810. See also Weil & Brown, Civil Procedure Before Trial, 12:975-979.2. The trial court’s determination with respect to interpretation of the settlement agreement will not be disturbed on appeal if supported by substantial evidence. Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.
The motion presents evidence that the Stipulation for Entry of Judgment was for judgment to be entered against defendants in the sum of $119,698.81, with judgment not to be entered so long as $700 was paid on or before the 4th of each consecutive month commencing on August 4, 2017 until paid in full. [Ex. 1, Stipulation, para. 2 (A)]. The Stipulation provides that if defendants should default on any of the payments, “Defendants will have three (3) days to cure the breach, no further notice is required.” [Ex. 1, Stipulation, para. 2 (C)]. The Stipulation provides that in the event of default and failure to timely cure, the unpaid balance, less any amount paid prior to the default, will be immediately accelerated and become due, and judgment will be entered in the sum stated in the Stipulation, plus interest according to proof. [Ex. 1, Stipulation, para. 6].
Plaintiff submits evidence that defendant Webb has made only sporadic payment totaling $33,450.00 and is in default pursuant to the terms of the Stipulation and has not cured the default. [Velen Decl., paras. 5-7]. Plaintiff seeks judgment in the sum of $86,683.81, which represents the total sum of $119,698.81 minus credit for the $33,450 paid, less costs in the sum of $435 for filing fees. Plaintiff is waiving pre-judgment interest. The Stipulation does not appear to provide for the award to include costs as quoted in the moving papers. The court accordingly declines to award costs as part of the judgment pursuant to the Stipulation but will do so without prejudice to plaintiff seeking such costs pursuant to a memorandum of costs, if appropriate.
Otherwise, the showing provides substantial evidence upon which the court may enter judgment in the sum of $119,698.81 the unpaid balance, less the amount paid prior to the default, $33,450, for a total judgment of $86,248.81. There is no opposition to this motion, so no challenge to this evidence. The motion is granted, and judgment entered against defendant Webb in the sum of $86,248.81.
Motion to Vacate Dismissal Under CCP section 664.6 & Enter Judgment Pursuant to Stipulation is GRANTED pursuant to CCP section 664.6. The Court finds that parties to pending litigation stipulated to the settlement of the case in a writing signed by the parties outside the presence of the Court. Judgment is therefore entered in favor of plaintiff ARF Financial, LLC and against defendant Merry Ann Webb, aka Mary Ann Webb; Tracy Webb pursuant to the Stipulation for Entry of Judgment executed by the parties on July 28, 2017. Judgment will be entered according to the Stipulation in the sum of $119,698.81, the unpaid balance, less the amount paid prior to the default, $33,450, for a total judgment of $86,248.81.
It does not appear that the Stipulation provides for the judgment to include costs. The costs claimed in the moving papers are accordingly not included in the judgment, but, if appropriate, plaintiff may seek costs pursuant to a duly filed memorandum of costs.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
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