Case Number: BC543895 Hearing Date: July 26, 2018 Dept: 37

CASE NAME: American Express Centurion Bank v. Hardine, et al.

CASE NO.: BC543895

HEARING DATE: 7/26/18

DEPARTMENT: 37

CALENDAR NO.: 5

FILING DATE: 4/28/14

DISMISSAL: Case dismissed on 4/15/15 without prejudice pursuant to settlement

NOTICE: OK

SUBJECT: Motion to Vacate Dismissal and Enter Judgment [1]

MOVING PARTY: Plaintiff American Express Bank, FSB

OPPOSING PARTY: None
COURT’S TENTATIVE RULING

The unopposed motion is GRANTED. The court GRANTS a judgment in favor of Plaintiff in the requested amount of $7,929.84. Counsel for Plaintiff American Express Bank, FSB to give notice.
STATEMENT OF THE CASE

This case arises from allegations that Defendant Ana Lisa Hardine (“Hardine,” aka Analisa M. Dymallyhardine, Analisa Michael Dymallyhardine, Analisa Lisa Dymallyhardine, Ana Lisa Dymallyhardine) became indebted to Plaintiff in the sum of $35,929.84 for a balance due on a book account in writing for money lent by Plaintiff to defendant at Defendant’s request. (Compl. ¶ 10.) In the Complaint, Plaintiff American Express Centurion Bank (“American Express”) alleges two causes of action for: (1) common counts: book account, account stated and (2) quantum meruit-reasonable value. Pursuant to stipulation and order signed and filed on February 26, 2015, the case was dismissed without prejudice on April 15, 2015.

Plaintiff contends that Defendant agreed to pay Plaintiff $36,449.84, inclusive of court costs, through monthly payments pursuant to the terms of a stipulation between the parties. (Declaration of Lisa D. Dubowski (“Dubowski Decl.”) ¶¶ 4-5, Ex. A.) Defendant allegedly made payments in the amount of $28,000 toward the settlement amount agreed and has failed to make payments on the remaining settlement balance. (Id. at ¶ 7.) Plaintiff now moves to vacate the dismissal pursuant to Code of Civil Procedure, section 473 and to enter judgment against the Defendant pursuant to section 664.6. Defendant did not file an opposition and does not respond to the motion.
DISCUSSION

Code of Civil Procedure, section 664.6 provides:

If 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.

(Code Civ. Proc., § 664.6.)

On February 26, 2015, the Honorable Marc Marmaro entered the parties’ proposed order for entry of stipulation for conditional entry of judgment and dismissal as the order of the court. (2/26/15 Order.) The Order specifically retained jurisdiction pursuant to section 664.6 to enforce the stipulation until performance in full of the terms. Accordingly, the court has jurisdiction to enforce the settlement.

Plaintiff’s counsel Dubowski attests and presents evidence that Defendant has only made $28,000 in payments of the $36,449.84 agreed to by the parties. (Dubowski Decl. ¶¶ 5, 8-9, Exs. A, C.) Paragraph 2 of the settlement agreement provides that if Defendant defaults on the settlement payments and fails to cure the default, Plaintiff may then obtain a judgment “for the entire balance owed by Defendant in the amount of $35,929.84, plus court costs expended, less any payments made to date and may execute on the judgment immediately after entry, upon application.” (Dubowski Decl. Ex. A, at ¶ 2.) Plaintiff thus requests the court enter a judgment in its favor for the balance owed by Defendant in the amount of $35,929.84 less payments made of $28,000, or a judgment in the amount of $7,929.84. Defendant did not file an opposition and does not respond to the presented arguments. Plaintiff has demonstrated it is entitled to a judgment in the requested amount pursuant to the terms of the parties’ settlement.

Accordingly, the court GRANTS Plaintiff’s motion and GRANTS a judgment in favor of Plaintiff in the requested amount of $7,929.84.

[1] On February 1, 2018, Plaintiff filed a notice of submission stating that it intended to submit on their moving papers without appearing pursuant to California Rules of Court, rule 3.1304(c) if there was no opposition filed in this matter. Defendant has not filed an opposition.