SECTION 664.6 REMEDY REVISITED
I am revisiting Mediation Message no. 141 (“Creating an Enforceable Section 664.6 Remedy”) because of Mesa RHF Partners, L.P. v. City of Los Angeles (2019) B288355, B288356; 2019 Cal. App. LEXIS 291. In Mesa, in two separate matters, the parties agreed in the settlements that the “The Court shall retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms of the Settlement Agreement.” Thereafter, counsel for the plaintiffs filed requests for dismissal and inserted in the dismissals that the “Court shall retain jurisdiction to enforce settlement per C.C.P. §664.6.” The clerk then entered the dismissals, as requested. Mesa holds that the court lost jurisdiction to enforce the settlements because the parties, as required by sec. 664.4, did not sign the requests for continuing jurisdiction, pursuant to sec. 664.6, and the requests to maintain jurisdiction were not made during the pendency of the two cases since the clerk had already dismissed the cases.
Strict compliance with section 664.6 is required: “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Authorities.)” (Mesa at *5.) 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.)
Request, in a settlement document, that the court retain jurisdiction to enforce the settlement: 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 v. Malis (2002) 97 Cal.App.4th 429, 439 [“We construe the second sentence of section 664.6 to mean, and we so hold, that 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.”].) 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.)
The parties, and not their attorneys, must request that the court retain jurisdiction: “The request to the court that it retain jurisdiction under section 664.6 must be made by the parties. ‘[A] request that jurisdiction be retained until the settlement has been fully performed must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves, not by their attorneys of record, their spouses, or other such agents.” (Wackeen, supra, 97 Cal.App.4th at p. 440; see Critzer, supra, 187 Cal.App.4th at p. 1254.)” (Mesa at *6.) “’(T)he term ‘parties’ as used in section 664.6 … means the litigants themselves, and does not include their attorneys of record.” (Authority.)” (Mesa at *7.) In Mesa, the requests for dismissal were signed only by an attorney.
The parties must request that the court retain jurisdiction before dismissing the case. “In this case, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6. The process need not be complex. But strict compliance demands that the process be followed.” (Mesa at *7.)
Remedies if section 664.6 is not available: 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.” (Basinger v. Rogers & Wells, supra, 220 Cal.App.3d at p. 21.) If section 664.6 is not available, it 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.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067