Bank of America NA vs Jose Reyes Ochoa

The Stipulation provides that plaintiff will not request entry of judgment so long as defendant is not in default as to the payment plan set forth in the Stipulation. (Stipulation, P. 3.) If defendant fails to make full and timely payment of any installment due, then the full remaining balance will be due, and plaintiff shall be entitled to enter judgment for the Judgment Amount plus any fees required by the court, less credit for any payments made. (Stipulation, P. 4.)

Pursuant to the Stipulation, the parties request that the court retain jurisdiction under Code of Civil Procedure section 664.6, and dismiss the case without prejudice. (Stipulation, P. 7.) The parties further agree that, in the event of a default by defendant and upon the filing of a motion by plaintiff, the court shall vacate the dismissal and enter judgment for the Judgment Amount, plus any required fees and less any payments made. (Ibid.)

On August 26, 2025, the court signed and entered an order pursuant to the Stipulation, dismissing the action under the conditions stipulated to by the parties with the court retaining jurisdiction under Code of Civil Procedure section 664.6. A request for dismissal of the action without prejudice and with the court retaining jurisdiction was filed on that same date.

On October 17, plaintiff filed a "Notice of Intention to Request Entry of Judgment Under Stipulation" (the Notice), stating that defendant is past due in their obligations under the terms of the Stipulation, in the amount of $1,627.54, and requesting that defendant pay that amount within 10 days, otherwise plaintiff will move for entry of judgment.

On January 15, 2026, plaintiff filed a motion for an order vacating the dismissal and for entry of judgment under the terms of the Stipulation, and separately filed a memorandum of costs. The motion is made on the grounds that the Stipulation requires defendant to pay to plaintiff the principal sum described above, plus costs according to the memorandum of costs; and that in the event of a default, defendant agreed to pay the full balance of the account plus costs, less payments received before default.

In support of the motion, plaintiff's counsel, Brian Langedyk (attorney Langedyk) states that the business records of Hunt & Henriques show that no payments have been received from defendant; that defendant was provided with 10 days' written notice of their failure to make agreed upon payments and plaintiff's intention to request entry of judgment under the terms of the Stipulation; and that the balance due, owing, and unpaid to plaintiff from defendant is the sum of $3,788.93, plus court costs in the amount of $613.61, for a total judgment of $4,402.54. Defendant has not filed an opposition or other response to the motion.

Analysis

Code of Civil Procedure section 664.6 provides: "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 the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Code Civ. Proc., Sec. 664.6, subd. (a).)

"The court's retention of jurisdiction under section 664.6 includes 'jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.' [Citation.]" (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1061, original italics.) "The retention of jurisdiction pursuant to section 664.6 is intended to allow the court to ensure all parties perform pursuant to a settlement agreement that results in a dismissal of a lawsuit. [Citation.] Section 664.6 generally allows a court to enter judgment pursuant to a settlement agreement despite the dismissal of the complaint, which ordinarily deprives the court of continuing jurisdiction." (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 134.)

"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (Code Civ. Proc., Sec. 410.10.) The present record, absent a dispute by defendant, is sufficient to show a sufficient basis for subject matter jurisdiction over the dispute at issue in this case. (Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1110-1111 [general discussion].)

"Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10)." (Code Civ. Proc., Sec. 410.50, subd. (a).) "In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 (Dill); see also Sternbeck v.

Buck (1957) 148 Cal.App.2d 829, 832 ["[s]ervice of summons in conformance with the mode prescribed by statute is deemed jurisdictional"].) "A judgment is void for lack of jurisdiction of the person where there is no proper service of process on or appearance by a party to the proceedings." (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)

Court records reflect that the summons was issued in this case on May 30, 2025, and that on June 18, 2025, plaintiff filed a proof of service of that summons (the POS). The POS states that the summons was served on defendant at the following address: 1210 Mason St., Santa Barbara, CA 93103-2738. (POS, P.P. 3-4.)

The filing of a proof of service of a summons creates a rebuttable presumption of valid service of that summons "only if the proof of service complies with the applicable statutory requirements regarding such proofs." (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) Relevant here based on the address identified in the POS where defendant was served, Code of Civil Procedure section 413.10 et seq. governs service of a summons on a person within this state. (See Code Civ. Proc., Sec. 413.10, subd. (a).)

The POS is signed under penalty of perjury by Luz Zuta, a registered California process server who served the papers described in the POS. (POS, P.P. 7-8.) Attached to the POS is a declaration of reasonable diligence by Zuta, stating that Zuta attempted to serve defendant by personal delivery at the address described above on June 2, 2025. (POS at pdf p. 4.) On that date, Zuta "spoke with an individual who identified themselves as [defendant's] daughter and ... stated [defendant] resides but not available at this time." (Ibid.) Zuta also declares that on June 3, 2025, they were unable to access the address due to a private gate or fence, though Zuta waited and knocked on the gate. (Ibid.)

Zuta further declares that on June 5, 2025, they waited at the private gate or fence at the address noted above. (POS, P. 5(b).) On that date, Zuta served copies of the summons and complaint by leaving those documents with "John Doe". (Ibid.) "John Doe" is described by Zuta as "an individual who refused to give their name who identified themselves as the co-resident." (Ibid.). Zuta also states: "The individual tried to refuse service by refusing to take documents and he said he is a resident but he is not him (documents left, seen by subject).

The individual appeared to be a gray-haired Hispanic male contact 55-65 years of age, 5'8"-5'10" tall and weighing 180-200 lbs with glasses and an accent." (Ibid.). Zuta also mailed, by first class, postage prepaid, copies of the summons and complaint to defendant at the address described above, which is the place where the copies of the summons and complaint were left. (POS, P. 5(b)(4).)

In lieu of personal delivery, and in circumstances where a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person served, service may be made "by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of their office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left." (Code Civ.

Proc., Sec. 415.20, subd. (b).) Service of a summons in the manner described in subdivision (b) of Code of Civil Procedure section 415.20 "is deemed complete on the 10th day after the mailing." (Ibid.)

Absent a dispute by defendant, the available evidence and information described above is sufficient to show valid and effective service of the summons on defendant in compliance with Code of Civil Procedure section 415.20. Court records also reflect that the present motion was served on defendant by mail on January 15, 2026, at the same address identified in the POS and described above. (See Jan. 15, 2026, Proof of Service; Code Civ. Proc., Sec. 1005 & Sec. 1013.)

Under Code of Civil Procedure section 664.6, "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." (Code Civ. Proc., Sec. 664.6, subd. (b).) Defendant has not filed an opposition raising a dispute as to whether defendant signed the Stipulation. (See Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 756 [general discussion].)

In addition, and absent a dispute by defendant, the available evidence and information shows that defendant has failed to pay any of the installments described in and required by the Stipulation. (Langedyk Dec., P.P. 5 & 7-8.) The Stipulation expressly provides that in the event defendant fails to make payment of any installment due pursuant to the payment schedule set forth in the Stipulation, plaintiff shall be entitled to request that the court resume jurisdiction under Code of Civil Procedure section 664.6, set aside the dismissal, and enter judgment against defendant exclusive of credit for any payments made.

Based on the present undisputed record, the court finds that plaintiff and defendant entered into a written, binding, and enforceable stipulation for settlement of this case that was signed by the parties, and agreed that the court may dismiss the case and retain jurisdiction to enforce that settlement until full performance of its terms. That settlement requires defendant to make payments in installments pursuant to the payment terms described above. The court also finds, based on the undisputed record, that there is sufficient evidence of a default by defendant in paying those agreed upon installments.

For all reasons discussed above, the court will grant plaintiff's motion, in part; order that the dismissal entered on August 26, 2026, be set aside; and order that judgment be entered against defendant and in favor of plaintiff in the amount of $3,788.93, which represents the liquidated sum the parties agreed is owed by defendant. (See Stipulation, P. 2.)

Noted above, plaintiff agreed in the Stipulation that the liquidated amount owed by defendant is $3,788.93. As to the costs claimed in the memorandum of costs, the motion fails to explain, with reasoned factual or legal argument, any reasonable basis for recovery of those costs, or why those costs are reasonably related to damages which could have been anticipated or represent fair compensation for losses that may be sustained by plaintiff upon a breach of the Stipulation by defendant, also considering that the Stipulation sets forth the amount of the liquidated damages sustained by plaintiff. (See Greentree Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal.App.4th 495, 499 (Greentree); Graylee v. Castro (2020) 52 Cal.App.5th 1107, 1119 [the inclusion of an amount owed by defendant in stipulation does not constitute a "tacit admission" by defendant that it owes that amount].)

Moreover, "[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.) When considering a motion brought under section 664.6, the court 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.)

Though the Stipulation describes costs of $543.61, the memorandum of costs claims costs in the amount of $613.61. Plaintiff fails to explain why the costs reflected in that memorandum are higher than the costs described in the Stipulation signed by defendant. Code of Civil Procedure section 664.6 "does not allow a court to endorse or enforce a provision in a settlement agreement or stipulation which is illegal, contrary to public policy, or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.)

As the amount of the judgment requested in the motion is higher than the amount for which the parties agreed to settle this case, and in the absence of a reasonable relationship to the range of damages that could have been anticipated upon breach of the Stipulation by defendant, the court construes the inclusion of costs by plaintiff as a penalty. (Greentree, supra, 163 Cal.App.4th at p. 499.) The parties may not waive public policy that prohibits unreasonable liquidated damages clauses. (Purcell v. Schweitzer (2014) 224 Cal.App.4th 969, 975.)

For these and all further reasons discussed above, the court will deny the motion as to costs in the amount of $613.61 claimed in plaintiff's memorandum of costs. The court has reviewed the proposed order and judgment lodged by plaintiff and does not intend to sign them. Plaintiff shall submit a corrected proposed order and judgment for the court's signature and shall serve and file proof of service of notice of this ruling on defendant at all known addresses.

Tentative Ruling: Andrea Vicars v. Marborg Industries, et al. Tentative Ruling: Andrea Vicars v. Marborg Industries, et al.