EBF Holdings, LLC vs. Kertnz Gallery, Inc.

For this reason, the Motion is DENIED. The Court notes that the Settlement Agreement discusses the Court’s retention of jurisdiction pursuant to section 664.6. As discussed above, the Motion fails because the parties were still required to present to the Court a request for retention of jurisdiction before such jurisdiction is retained.

Additionally, however, Plaintiff did not follow the terms of the Settlement Agreement that the parties agreed were the required steps in order for the Court to retain jurisdiction. Paragraph 3 of the Settlement Agreement states: “Upon full execution of this Agreement and the Stipulation by all of the Parties hereto, and return of all signatures on the Agreement and Stipulation to Plaintiff’s counsel, and successful negotiation by Plaintiff of the first payment due pursuant to this Agreement, Plaintiff will file either [1] a Notice of Conditional Settlement pursuant to the California Rules of Court 3.1385(c) or, [2] as may be directed by the Court, file a Stipulation executed by the parties to this action for the Court to dismiss the action without prejudice and retain jurisdiction pursuant to CCP 664,6 in order to enforce this settlement and to enter a Judgment pursuant to the Stipulation in the event of an uncured default in the performance of this Agreement by Defendants.” (Settlement Agreement.)

Here, Plaintiff did not file either (1) a notice of conditional settlement or (2) a Stipulation executed by the parties to this action for the Court to dismiss the action without prejudice and retain jurisdiction pursuant to CCP 664,6 in order to enforce this settlement and to enter a Judgment pursuant to the Stipulation in the event of an uncured default in the performance of this Agreement by Defendants. Thus, Plaintiff did not perform as agreed upon by the parties in order to preserve the right to ask the Court to now enforce the settlement.

Regardless of Plaintiff’s performance under the Settlement Agreement, the formal requirements for retention of jurisdiction to consider a section 664.6 motion were not met by the parties and therefore Plaintiff is precluded from using this case to seek enforcement of its rights under the settlement agreement because the Court lacks jurisdiction. The Motion is DENIED.