Mediation Message No. 95

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 95

ENFORCING SETTLEMENTS PURSUANT TO C.C.P. SECTION 664.6

When drafting a settlement agreement, parties have the opportunity to stipulate that the trial court “may enter judgment pursuant to the terms of the settlement.” (Code of Civil Procedure section 664.6.) If this condition is not agreed to and the case is voluntarily dismissed with prejudice, the court has lost jurisdiction over the matter. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.) If that should happen, the only 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 strongly consider adopting 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.) 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.)

MDM’s helpful hint: When continuing jurisdiction of the court is desirable, it is not enough to merely refer to the requisite language in the settlement agreement (Hagan Engineering v. Mills, supra, at p. 1008), which must be personally executed by the litigants. (Levy v. Superior Court (1995) 10 Cal.4th 578, 583, 586 [“settlement is such a serious step that it requires the client's knowledge and express consent.”].) Instead, the parties must request the court to maintain jurisdiction over them to enforce the settlement. This can be achieved either by asking, in the Judicial Council Request for Dismissal form that is filed with the court, that, pursuant to section 664.6, it “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement” or by making the same request in a formal motion filed with the court.

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 2014

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