Jason E Colbert vs Dorothy M Austin

Case Number

17CV04141

Case Type

Hearing Date / Time

Mon, 02/05/2024 - 10:00

Nature of Proceedings

Motion: Judgment Motion to Enter Judgment

Tentative Ruling

Jason E. Colbert v. Dorothy M. Austin 

Case No. 17CV04141        

Hearing Date: February 5, 2024                                            

HEARING:              Plaintiff’s Motion To Enter Judgment

ATTORNEYS:        For Plaintiff Jason E. Colbert: Self Represented

For Defendant Dorothy M. Austin: Self Represented

TENTATIVE RULING:

The court grants plaintiff’s motion to enter judgment against defendant Dorothy M. Austin. Plaintiff shall submit a corrected proposed judgment in accordance with this ruling and shall give notice of the court’s ruling to defendant at all known physical or electronic mailing addresses.

Background:

Plaintiff Jason E. Colbert filed a complaint in this matter on September 15, 2017, seeking damages in the amount of $48,500 from defendant, Dorothy M. Austin (Austin), who is plaintiff’s maternal aunt. Plaintiff’s complaint is prepared on a Judicial Council form and identifies a single cause of action against Austin for breach of fiduciary duty in Austin’s capacity as co-executor of Annie Walker’s estate.

On January 29, 2018, the court overruled the demurrer of Austin to plaintiff’s complaint and ordered Austin to file and serve her answer on or before February 23, 2018.  On February 22, 2018, Austin filed an answer to the complaint, admitting certain of its allegations and denying others.

Court records reflect that a Case Management ADR Settlement Session Report was filed in this matter on April 30, 2018 (the CMADRESS report). Information appearing in the CMADRESS report demonstrates that this matter settled on April 16, 2018. The terms of the parties’ settlement were placed on the record and the parties signed an agreement (the settlement agreement). (See Apr. 30, 2018, CMADRESS Report.)

Plaintiff has filed a motion for an order to enter judgment in accordance with the settlement agreement. Plaintiff asserts that a judgment was never entered which reflects the terms of the settlement agreement, and that plaintiff needs a judgment to be entered in this matter in order to exercise available enforcement remedies against Austin.

In support of the motion, plaintiff declares that he, Austin, and Joanne McClelland (McClelland), who is not a party to the present matter, settled outstanding issues in this litigation on April 16, 2018. (Colbert Decl., ¶ 2.) A copy of the settlement agreement is attached to plaintiff’s declaration as Exhibit A. Plaintiff asserts that, pursuant to the terms of the settlement agreement, Austin and McClelland were to pay to plaintiff a one-time payment of $500 on or before April 16, 2018, and were to also make monthly payments to plaintiff in the amount of $150, beginning on May 20, 2018, until the sum of $20,000 was paid. (Id. at ¶ 3.)

Plaintiff further declares that on April 16, 2018, he received a payment in the amount of $500. (Colbert Decl., ¶ 4.) In addition, plaintiff received monthly payments of $150 each month from McClelland until September 2023. (Ibid.) Plaintiff then received a letter from McClelland in which McClelland stated that she had paid to plaintiff the sum of $10,000, and that she would not pay any more money to plaintiff. (Ibid.) McClelland directed plaintiff to get in touch with Austin for the balance of the funds due. (Ibid.) Plaintiff tried calling Austin several times but Austin had only excuses. (Id. at ¶ 5)

Austin has not filed an opposition to plaintiff’s motion.

Analysis:

Code of Civil Procedure, section 664.6, provides that “[i]f 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.” (Code Civ. Proc., § 664.6, subd. (a).) “A settlement is enforceable under [Code of Civil Procedure] section 664.6 only if the parties agreed to all material settlement terms.” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182, 1185. Accordingly, a court hearing a motion brought under section 664.6 may decide what settlement terms the parties have agreed upon and enter the terms of a settlement agreement as a judgment. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)

Plaintiff’s motion effectively seeks entry of judgment against Austin pursuant to the terms of the settlement agreement. (See Code Civ. Proc., § 664.6, subd. (a).) Plaintiff submits a copy of the settlement agreement which is signed by Austin. Pursuant to the settlement agreement, plaintiff agreed to accept the sum of $20,000 (the settlement sum) from Austin and McClelland in full settlement of this action and another action filed as case number 17CV04325 entitled Jason E. Colbert v. Joanne McClelland. (Colbert Decl., Exh. A. at ¶ 5.) Austin and McClelland agreed that they are jointly and severally responsible for payment of the settlement sum to plaintiff. (Id. at ¶ 6(2).)

Pursuant to the settlement agreement, Austin and McClelland agreed to pay to plaintiff the amount of $500 on or before April 16, 2018. (Colbert Decl., Exh. A. at ¶ 6(1).) Austin and McClelland also agreed to pay to plaintiff the amount of $150 each month beginning on May 20, 2018. (Id. at ¶ 6(2).) The monthly payments were due on or before the twentieth of each month. (Ibid.) The payments to be made to plaintiff total $20,000. (Id. at ¶¶ 5, 6(2).)

The settlement agreement also provides that “[i]t is the intention of the parties to have [the settlement agreement] governed by the provisions of California Code of Civil Procedure section 664.6, i.e., the court controls any disputes of any kind and variety involving the interpretation and/ or enforcement of [the settlement agreement]. The parties stipulate that [the settlement agreement] shall be enforceable under [Code of Civil Procedure] section 664.6 and specifically agree that the Santa Barbara Superior Court shall retain jurisdiction to enforce [the settlement agreement] and all executory terms thereof.” (Colbert Decl., Exh. A at ¶ 10.)

Though the CMADRESS report indicates that the terms of the settlement agreement were placed on the record, plaintiff has not submitted a court reporter’s transcript. However, court records reflect that on April 16, 2018, the parties submitted to the court a copy of the settlement agreement. (See Apr. 16, 2018, Minute Order.)

The evidence and information presented by plaintiff establishes that plaintiff and Austin entered into a binding and enforceable settlement in a writing signed by the parties outside the presence of the court, a copy of which was submitted to the court. The settlement agreement provides that Austin shall be jointly and severally liable for payment of the settlement sum to plaintiff, which includes a one-time payment of $500 and monthly payments in the amount of $150 per month until the settlement sum was paid. Though there is evidence demonstrating that McClelland has paid some amount towards the settlement some, there is also evidence of a default by Austin, who has not filed an opposition to the motion. The court retained jurisdiction under Code of Civil Procedure section 664.6.

For all reasons stated above, the court will grant plaintiff’s motion to enter judgment pursuant to the terms of the settlement agreement as set forth herein. The court further recognizes that Austin is or may be entitled to credits against any judgment entered in this matter.

The court has reviewed the proposed judgment submitted by plaintiff and does not intend to sign it. Plaintiff shall submit a corrected proposed form of judgment in accordance with California Rules of Court, rule 3.1590.