Portfolio Recovery Associates, LLC v. Clifford Johnson

Case Number

16CV03409

Case Type

Hearing Date / Time

Mon, 12/09/2024 - 10:00

Nature of Proceedings

Plaintiff’s Motion to Vacate Dismissal and for Entry Of Judgment Under Terms Of Stipulated Settlement Agreement (CCP § 664.6.)

Tentative Ruling

Portfolio Recovery Associates, LLC v. Clifford Johnson  

Case No. 16CV03409  

Hearing Date: December 9, 2024                                           

HEARING:              Plaintiff’s Motion to Vacate Dismissal and for Entry Of Judgment Under Terms Of Stipulated Settlement Agreement (CCP § 664.6.)

                                                           

ATTORNEYS:        For Plaintiff Portfolio Recovery Associates, LLC: Donald Sherrill, Hunt & Henriques

For Defendant Clifford Johnson: Self-Represented

TENTATIVE RULING:

The motion of plaintiff Bank of America N.A.’s for an order setting aside dismissal and for entry of judgment pursuant to Code of Civil Procedure section 664.6 is granted. The court will sign the proposed order and judgment.

Background:

This action commenced on August 4, 2016, by the filing of the complaint by plaintiff Portfolio Recovery Associates, LLC (“plaintiff”) against defendant Clifford Johnson (“defendant”). The complaint contains causes of action for Account Stated and Open Book Account.

As alleged in the complaint:

Citibank, N.A. issued a credit card account to defendant, which defendant used, or authorized the use of, the account to make purchases and transactions. (Compl., ¶ 6.) Defendant received periodic billing statements for the account, but defaulted in making the required payments. (Ibid.) Plaintiff was assigned and transferred all right, title, and interest in the account. (Ibid.)

At the time of the filing of the complaint, the balance of the account was $4,331.59, and the last payment was made on April 8, 2014. (Compl., ¶¶ 8, 9.)

On October 21, 2016, the parties filed a settlement agreement which includes a provision that the court retains jurisdiction pursuant to Code of Civil Procedure section 664.6.

Under the terms of the settlement agreement, defendant agreed to pay plaintiff a minimum of $75.00 on or before the 29th day of each and every month commencing in September 2016, followed by a final payment of $56.59 on or before June 29, 2021. Defendant also agreed that in the event of default, plaintiff would be entitled to judgment for the principal sum of $4,331.59, plus costs.

As a result of the agreement, a dismissal was entered, with the court retaining jurisdiction, on October 25, 2016.

Defendant defaulted on the agreed payments, with the last payment received being on February 19, 2019. (Wang Decl., ¶ 5.) Defendant was provided with ten-days written notice of the failure to make the agreed upon payments and plaintiff’s intention to file the present motion. (Id., at ¶ 6 & Exh. A.)

Defendant paid $3,200.00 pursuant to the stipulation, and there remains $1,131.59 unpaid, plus court costs of $597.50. (Wang Decl., ¶ 8.)

Defendant now moves for entry of judgment, pursuant to Code of Civil Procedure section 664.6.

The motion was served, via mail, to defendant at his last known address on October 2, 2024.

Defendant has filed no opposition or other response to the motion.

Analysis:

Code of Civil Procedure section 664.6 provides:

“(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.

(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.”

“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement.” (Hines v. Lukes (2008) Cal.App.4th 1174, 1182.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Id.)

A court hearing a motion brought under section 664.6 may “receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment”, but may not “create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)

“A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Ibid.) “In order for acceptance of a proposal to result in the formation of a contract, the proposal “ ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ ” [Citation.] A proposal “ ‘cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [¶] The terms of a contract are reasonably certain if they provide a basis for determining . . . the existence of a breach and for giving an appropriate remedy.’ ” [Citation.] If, by contrast, a supposed “ ‘contract’ ” does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. (See, e.g., 1 Williston on Contracts (4th ed. 1990, Lord) § 4:18, p. 414 [“It is a necessary requirement that an agreement, in order to be binding, must be sufficiently definite to enable the courts to give it an exact meaning.”]; see also Civ. Code § 3390, subd. 5 [a contract is not specifically enforceable unless the terms are “ ‘sufficiently certain to make the precise act which is to be done clearly ascertainable.’ ”] )” (Id. at pp. 811-812.)

The parties entered into a valid and enforceable contract, with reasonably certain terms, and have agreed that the court retains jurisdiction to enforce the terms of the settlement agreement pursuant to Code of Civil Procedure section 664.6.

The motion will be granted. The court has reviewed the proposed order and judgment and intends on signing them.