Case Number: KC065981 Hearing Date: June 23, 2014 Dept: J

Re: Song Yan Chen, et al. v. Mary Wong (KC065981)

MOTION TO ENFORCE STIPULATION FOR JUDGMENT

Moving Party: Defendant Mary Wong

Respondents: No timely opposition filed

POS: Moving OK

Defendant Mary Wong moves to set aside the dismissal of the action ordered on September 27, 2013 and enforce the stipulated settlement she entered into with Plaintiffs Song Yan Chen and Patrick Wong on 9/27/13 pursuant to CCP §473 on grounds that Plaintiffs have not met their obligation as agreed in the stipulation.

CCP §664.6 states, “[i]f 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.” Here, the parties attended a voluntary settlement conference at the Court on 9/27/13, and reached a settlement. The Court retained jurisdiction to enforce the settlement agreement pursuant to CCP §664.6. Defendant claims that Plaintiffs have failed to sign-off and release the monies held in escrow for Defendant totaling $15,000. (Declaration of Mary Wong). However, the supporting Declaration of Mary Wong is not signed as required under CCP §2015.5, so it fails to support the motion with admissible evidence of Plaintiffs’ non-performance under the settlement agreement.

Subsequent to the posting of the above tentative ruling on the court’s website, counsel for Defendant apparently filed a signed copy of the Declaration of Mary Wong on June 20, 2014. A review of the Stipulation for Entry of Judgment in the court’s file demonstrates that the actual language of ¶ 2(f) thereof is as follows:

“Seller [Wong] shall be entitled to remain in the premises for a period of sixty (60) days from the date of close of escrow (the ‘hold over period’) at which time she must vacate the premises turning over possession to Purchasers [Plaintiffs].

“In the event that Seller does not vacate the premises until a date which is more than sixty (60) days from the close of escrow, Seller will release the sum of $15,000 held in escrow to Purchasers.”

Implicitly, it appears that the parties agreed that if Wong vacated within 60 days from the close of escrow, then she would receive the $15,000. While Wong does not state in her declaration when escrow closed, nor the date on which she delivered possession of the property to Plaintiffs, she does declare that she “satisfied my portion of the stipulation and agreement.”

The issue, then, is how the stipulation can be enforced by entry of a judgment. If the money is still being held by Jade Escrow, the court cannot order the escrow company to release the money to Wong because Jade Escrow has never been made a party to this action thereby bringing it within the jurisdiction of the court. But if the money has been released to Plaintiffs, the court is willing to render a judgment in favor of defendant and against the plaintiffs in the sum of $15,000. The request for attorney fees and costs is denied because the request is not supported by a declaration of counsel for defendant. The may be sought, however, by the service and filing of a timely Memorandum of Costs.

If judgment is to be entered against the plaintiffs, counsel for defendant is to submit a proposed judgment at the time of the hearing.