Andrade v Cabrera
Motion to Enforce Settlement
|Hearing Date:||July 26, 2019|
|Action Filed:||August 27, 2014|
|Dismissed:||August 24, 2016 (Lack of Prosecution)|
|MP:||Plaintiff Juana Andrade|
|RP:||Defendant Rafael C. Cabrera|
The instant action arose out of a loan transaction for the purchase of real estate, wherein Plaintiff Juana Andrade (“Plaintiff”) alleged she was fraudulently induced to give Defendant Rafael C. Cabrera (“Defendant”) $50,000.00 in consideration for a home loan.
Plaintiff filed her Complaint on August 27, 2014, alleging six causes of action, and following a demurrer, filed a First Amended Complaint (“FAC”) on March 11, 2015, alleging three causes of action for sounding in (1) Breach of Oral Agreement, (2) Unjust Enrichment, and (3) Unfair Business Practices.
On July 13, 2016, the parties informed the Court that they had reached a settlement outside the presence of the Court prior to trial. At that time the Court placed the trial off-calendar and set an Order to Show Cause re Dismissal and/or Submission of Stipulated Judgment, set for August 24, 2016. On August 24, 2016, the Court’s Minute Order reflects that neither party appeared before the Court, neither party submitted a dismissal, neither party submitted a stipulated judgment, and neither filed any response whatsoever to the OSC. The Court therefore dismissed the action without prejudice for failure to prosecute.
The instant motion was filed by Plaintiff on July 11, 2019, which is untimely (the Proof of Service indicates it was placed in a mailbox on July 04, 2019, which does not remedy the situation, which is still untimely, as the document is deemed served on July 09 at the earliest [July 10, realistically, as no mail collection occurs on July 4], which only gives 12-13 days’ notice of the instant motion, not 16.). Defendant nonetheless filed a timely opposition on July 11, 2019, and a reply brief was submitted on July 19, 2019.
Plaintiff Juana Andrade moves for entry of judgment in the amount of $26,000.00.
Standard of Review – Code of Civil Procedure §664.6 permits the trial court to enter judgment in accordance with the terms of a settlement upon the motion of one party, if it determines that the parties have entered into an enforceable settlement. Section 664.6 provides in pertinent part, “[i]f parties to pending litigation stipulate, in 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 in the settlement.”
On review of the moving papers, no signed writing has been provided to the Court, no minute order reflects that the parties stipulated to the terms of a settlement before the Court, and nothing in the record indicates that the parties requested that the Court retain jurisdiction over the instant matter.
Accordingly, the Court lacks jurisdiction to enforce the terms to a settlement that does not satisfy the requirements of Code of Civ. Proc. §664.6.
Deny the motion.
In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.
Plaintiff Juana Andrade’s Motion to Enforce Settlement came on regularly for hearing on July 26, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
The motion is: DENIED IN ITS ENTIRETY