Motion: Vacate Re Dismissal
Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 05/01/2026 - 10:00 Nature of Proceedings Motion: Vacate Dismissal and Enter Judgment Tentative Ruling For all reasons discussed herein, the motion to enter judgment pursuant to Code of Civil Procedure section 664.6 is granted in the amount of $3,425.93. Costs will also be awarded in the amount of $563.50 for a total judgment of $3,989.43. The court intends on signing the proposed order and judgment submitted by plaintiff.
Background: This action commenced on September 12, 2023, by the filing of the judicial council form complaint by plaintiff Bank of America, N.A. (BofA) against defendant Katelyn Cochran for common counts. By way of the complaint, BofA alleged that defendant applied for and received a credit card, used the credit card, and subsequently breached the agreement by failing to make payments. At the time of filing the complaint, BofA alleged that defendant owed a balance of $5,192.17.
On October 12, 2023, defendant answered the complaint, admitting some allegations and denying others. Defendant also asserted four affirmative defenses.
On November 25, 2024, the parties entered into a written stipulated agreement whereby defendant was to pay BofA: (1) $744.54 on or before October 16, 2024, followed by a minimum payment of $500.00 on or before the 20th day of each month, commencing in November 2024, followed by a final payment of $494.89 on or before April 20, 2025, for a total amount of $3,739.43. The agreement specifically acknowledges that the court shall retain jurisdiction for purposes of enforcing the agreement and entering judgment pursuant to Code of Civil Procedure section 664.6.
On December 19, 2025, BofA filed the present motion. BofA contends that defendant has failed to comply with the settlement agreement and pay as required, with the last payment being received on April 24, 2024. (DiPiero decl., P. 5.) BofA contends that defendant now owes the principal sum of $3,425.93 plus court costs in the sum of $563.50, for a total of $3,989.43. The proof of service indicates that defendant was served with the motion on December 19, 2025. Defendant has not filed opposition or any 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."
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"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.)
As noted above, on November 25, 2024, the parties submitted a stipulated agreement pending performance pursuant to Code of Civil Procedure section 664.6 (the "Stipulation"). The terms of the stipulation include: "KATELYN COCHRAN ("Defendant") stipulates to the entry of judgment in favor of Bank of America, N.A. ("Plaintiff") in the principal sum of $5,192.17 less adjustment/credit of $1,766.24 received November 22, 2023 through April 24, 2024 and court costs of $313.50 for a total judgment in the amount of $3,739.43 (the "Judgment Amount") which may include any first appearance fee that may be required as a result of the filing of this Stipulation Agreement (the "Stipulation"). (Stipulation, P. 1.)
"Defendant agrees to pay to Plaintiff a down payment of $744.54 on or before October 16, 2024 followed by a minimum of $500.00 on or before the 20th day of each and every month commencing in November, 2024 followed by a final payment of $494.89 on or before April 20, 2025, until Defendant has paid the Judgment Amount. These consecutive monthly installments, totaling $3,739.43, timely received, will constitute full satisfaction of the Judgment Amount. Time is of the essence with respect to all payments. If Defendant fails to make full and timely payment of any installment or if any payment is reversed, then the full remaining balance will be due, and Plaintiff shall be entitled to enter judgment for the Judgment Amount plus any motion and/or order fees required by the court, less credit for payments made." (Stipulation, P. 4.)
"The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure Sec. 664.6. . . . The Parties further agree that in the event of a default in payments and upon Plaintiffs motion served and filed in accordance with Code of Civil Procedure Sec. 1005(b), the court shall reopen the case, vacate any dismissal, and enter judgment for the Judgment Amount plus any motion and/or order fee(s) required by the court, less credit for payments made." (Stipulation, P. 7.)
The stipulation is signed by counsel for BofA as well as by defendant.
"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. [P.]
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) Sec. 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 Sec. 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 stipulation contains definite terms that are reasonably certain. The parties entered into an enforceable contract. Defendant defaulted by failing to make all payments and owes $3,425.93 in principal balance.
Plaintiff also seeks court costs of $563.50, pursuant to a memorandum of costs filed and served on December 19, 2025. "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (Cal. Rules of Court, rule 3.1700(a)(1).)
Defendant has not filed any objection to the memorandum of costs or filed a motion to strike costs. The costs are recoverable. The motion will be granted
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