BANK OF AMERICA N A VS PETER T KIM

Tentative Rulings

Case Number: ****2115    Hearing Date: November 20, 2019    Dept: 32

BACKGROUND

Plaintiff Bank of America, N.A. (“Plaintiff”) commenced this action against Defendant Peter T. Kim (“Defendant”) on August 14, 2017. The Complaint asserts a single cause of action for common counts.

On January 24, 2018, Plaintiff filed a notice of settlement of the entire case. On March 9, 2018, the Court granted Plaintiff’s oral motion to dismiss the case without prejudice and agreed to retain jurisdiction to enforce the parties’ settlement pursuant to CCP section 664.6.

LEGAL STANDARD

“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.” (CCP ; 664.6.)

Under CCP section 664.6, “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.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439.)

ANALYSIS

Plaintiff moves to set aside the dismissal and for entry of judgment in its favor in the sum of $13,492.12.

Plaintiff submits the following evidence. On December 26, 2017, the parties entered into a settlement agreement. (Sleezer Decl. ¶ 2, Ex. 1.) The settlement agreement provided, among other things, that judgment in the sum of $25,602.12 would not be entered against Defendant so long as Defendant agreed to pay Plaintiff an initial sum of $3,000 on or before November 17, 2017, monthly payments of $655 beginning December 30, 2017 and continuing through August 30, 2019, and a final payment of $310 on September 30, 2019. (Ibid.) The parties agreed that, in the event of Defendant’s default, the Court would be authorized to immediately enter judgment in Plaintiff’s favor in the full amount owed, excluding payments received but including court costs incurred in obtaining judgment. (Sleezer Decl. ¶ 3.)

On February 30, 2019, Defendant defaulted on the settlement agreement by failing to make the payment then due and owing. (Sleezer Decl. ¶ 4, Ex. 2.) To date, Defendant has paid $12,170, and Plaintiff has incurred court costs of $567. (Sleezer Decl. ¶ 7.) Under the terms of the settlement agreement, the total amount owed by Defendant to Plaintiff is $13,492.12. (Ibid.)

Based on this uncontested evidence, Plaintiff has established Defendant’s breach of the parties’ settlement agreement and the amount which Defendant presently owes Plaintiff.

Accordingly, Plaintiff’s motion is GRANTED. The Court hereby sets aside the dismissal and enters judgment against Defendant in the sum of $13,492.12.