Judge: Mark E. Windham, Case: 21STLC04414, Date: 2023-04-26 Tentative Ruling

Case Number: 21STLC04414    Hearing Date: April 26, 2023    Dept: 26

Whitaker v. 6324 Hollywood Associates, LLC, et al.

VACATE DISMISSAL AND ENTER JUDGMENT

(CCP § 664.6)

TENTATIVE RULING:

Plaintiff Brian Whitaker’s Motion to Vacate Dismissal and Enter Judgment is DENIED.

ANALYSIS:

Plaintiff Brian Whitaker (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants 6324 Hollywood Associates, LLC and Juice Foundation, Inc. (“Defendants”) on June 11, 2021. On November 4, 2021, Plaintiff filed a Notice of Unconditional Settlement, indicating that a request for dismissal would be filed within 45 days. (Notice of Settlement, filed 11/04/21.) The request for dismissal was filed on December 30, 2021; dismissal of the entire action with prejudice was entered on effective that date. (Request for Dismissal, filed 12/30/21.) 

Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement and Enter Judgment on April 3, 2023. No opposition has been filed to date.

Discussion

The Motion to Enforce Settlement is brought under Code of Civil Procedure, section 664.6, which states in relevant part:

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, subd. (a).) Prior to January 1, 2021, “parties” under section 664.6 meant the litigants themselves, not their attorneys.  (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) The current statute provides that “parties” includes “an attorney who represents the party” and an insurer’s agent. (Code Civ. Proc., § 664.6, subd. (b).) 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.) The settlement agreement here complies with the statutory requirements set forth above because it was signed by all parties. (Motion, Johnson Decl., Exh. 1, pp. 7-8.)

Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Court’s retention of jurisdiction to conform to the statutory language. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [“If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.”].) Plaintiff does not present a request for retention of jurisdiction with the instant Motion. While the settlement agreement itself contains a provision for and request to the Court to retain jurisdiction under Code of Civil Procedure section 664.4, this was never presented to the Court prior to dismissal of the action. (Motion, Johnson Decl., Exh. 1, ¶5.) Prior to dismissal, Plaintiff only filed an unconditional Notice of Settlement, which did not ask the Court to retain jurisdiction. Nor did the request for dismissal contain any mention of jurisdiction under Code of Civil Procedure section 664.4.

Therefore, the Court did not retain jurisdiction of this action after the entry of dismissal on December 30, 2021 and cannot grant the request to enforce the parties’ settlement agreement. 

Conclusion

Plaintiff Brian Whitaker’s Motion to Vacate Dismissal and Enter Judgment is DENIED.

Moving party to give notice.