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The Parties Themselves, Not Counsel, must Request Retention of Jurisdiction to Enforce Settlement Prior to Dismissal under C.C.P. Section 664.6

April 3, 2019

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In two settlements, the following language was inserted into each Settlement Agreement:  “The Court shall retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms of the Settlement Agreement.”

Each case was thereafter dismissed “as requested” by the clerk upon the filing of a Request for Dismissal (on Judicial Council form CIV-110), signed by counsel only, with the following language inserted: “The Court shall retain jurisdiction to enforce the settlement agreement per Code of Civil Procedure §664.6.”

The Requests for Dismissal were not accompanied by the Settlement Agreements, by attachment thereto or otherwise.

Controversies arose over the settlements and motions to enforce the settlement were made pursuant to C.C.P. § 664.6, which reads as follows:

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.

The motions to enforce were denied on the merits.

The California Court of Appeal, Second District, Div. One, affirmed, but on the basis of lack of jurisdiction in the trial court to hear the motions, in Mesa RHF Partners v. City of Los Angeles, (2019) ___ Cal.App.5th ___ (Case no. B288355, filed March 29, 2019).

A request for the trial court to retain jurisdiction under section 664.6 “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440 (Wackeen).) The “request must be express, not implied from other language, and it must be clear and unambiguous.” (Ibid.)

The parties ask us to construe Mesa, Hill, and Olive’s requests for dismissal as section 664.6 requests for the trial court to retain jurisdiction. [fn. omitted]. We will not do so.

The request to the court that it retain jurisdiction under section 664.6 must be made by the parties. “[A] request that jurisdiction be retained until the settlement has been fully performed must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves, not by their attorneys of record, their spouses, or other such agents.” (Wackeen, supra, 97 Cal.App.4th at p. 440; Critzer [v. Enos (2010) 187 Cal.App.4th 1242] at p. 1254.) The Judicial Council form CIV-110 in each case was signed only by an attorney for Mesa, Hill, and Olive.

Mesa RHF Partners v. City of Los Angeles, supra, slip op. pp. 5-6.

The Court added its suggestion:

In this case, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6. The process need not be complex. But strict compliance demands that the process be followed.

Mesa RHF Partners v. City of Los Angeles, supra, slip op. p. 7.

Be careful how you document your settlement and provide for enforceability.

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David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

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From → Law, Mediation

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