Mediation Message No. 141

CREATING AN ENFORCEABLE SECTION 664.6 REMEDY

Merely stipulating in a settlement agreement that the trial court “may enter judgment pursuant to the terms of the settlement” (Code of Civil Procedure section 664.6) is not enough to confer jurisdiction on the court over the settlement unless the parties also make a subsequent request conferring jurisdiction while the case is still pending (i.e. before the matter has been dismissed) and that the request is either in a writing or made orally before the court. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440 [Wackeen]; Sayta v. Chu (2017) 17 Cal.App.5th 960, 966 [Sayta].) The request must be made before the case is dismissed because “section 664.6 is limited to settlements reached in pending litigation.” (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206; Sayta, supra, at p. 965; emphasis in the original.)

A court loses jurisdiction over the matter if the parties do not follow the above steps and the case is voluntarily dismissed with prejudice. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.) If jurisdiction is lost, one remedy is to ask the court to vacate the dismissal under C.C.P. section 473, subd. (b) because of “mistake, inadvertence, surprise or excusable neglect.” (Id.)

Also, whenever a settlement includes conditions to be performed over time (such as periodic payments or repairs), settling parties should adopt the second sentence of section 664.6 which provides, “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.” This language allows the court to maintain jurisdiction even after an action has been dismissed. (Hagan Engineering v. Mills (2003) 115 Cal.App.4th 1004, 1010-1011; Wackeen, supra, at p. 439.) Because of such a stipulation, the trial court had continuing jurisdiction over the disclosure of confidential records held by the Franciscan Friars in a sex abuse matter. (In re The Clergy Cases I (2010) 188 Cal. App.4th 1224, 1237.)

If section 664.6 is not available (for example, the parties never agreed to its application or one of the parties did not personally approve the settlement), the settlement can still be enforced by summary judgment, a suit for breach of contract, a suit in equity (Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293) or by raising settlement as an affirmative defense. (Gauss v. GAF Corp. (2003) 103 Cal.App.4th 1110, 1122.) Neither Robertson nor Gauss mentions that the alternatives to section 664.6 are more costly since a section 664.6 stipulation may include a condition that the prevailing party in a motion to enforce a settlement shall be entitled to its attorney’s fees and costs.

MDM’s helpful hint: The elements of an enforceable section 664.6 request are: (1) Provide in the settlement agreement that “The trial court may enter judgment pursuant to both the terms of the settlement and Code of Civil Procedure section 664.6; (1A) Alternatively, if the settlement includes conditions to be performed by a party over time, provide in the settlement agreement that “If requested by the parties, the court may retain jurisdiction over the parties, pursuant to Code of Civil Procedure section 664.6, to enforce the settlement until performance in full of the terms of the settlement.” (2) Before the underlying case is dismissed, the parties request the court to maintain jurisdiction over them to enforce the settlement by (a) stating, in the Judicial Council Request for Dismissal form filed with the court, that “Pursuant to section 664.6, the court shall retain jurisdiction over the parties to enforce the settlement (and until performance in full of the terms of the settlement),” or (b) making the same request in a formal motion filed with the court or (c) appearing in person before the court and making the same request orally.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, February 2018

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