Filed 6/1/18 Hanson v. Nationstar Mortgage CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KARIN J. KONOTCHICK HANSON et al.,

Plaintiffs and Appellants,

v.

NATIONSTAR MORTGAGE, LLC,

Defendant and Respondent.
D071690



(Super. Ct. No. 37-2013-00063555- CU-OR-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed and remanded with directions.

Solomon Ward Seidenwurm & Smith, William N. Kammer and Leah S. Strickland for Plaintiffs and Appellants.
Hall Griffin, Howard D. Hall, Jered T. Ede and Amanda V. Anderson for Defendant and Respondent.

I
INTRODUCTION
Karin J. Konotchick Hanson and Aaron A. Hanson (Hansons) appeal from a judgment following the granting of a postdismissal motion by Nationstar Mortgage, LLC (Nationstar) to enforce an amended settlement agreement (Amendment). The Hansons assert various procedural and substantive claims of error. For the first time in their reply brief, they also assert the trial court lacked subject matter jurisdiction to enforce the Amendment because (1) the parties did not enter into either the original settlement agreement (Agreement) or the Amendment while the litigation between them was still pending, and (2) the parties did not make a request while the litigation between them was still pending for the court to retain jurisdiction to enforce either the Agreement or the Amendment.
We requested and received supplemental briefing on this point. We conclude the court lacked subject matter jurisdiction to enforce either the Agreement or the Amendment. We, therefore, reverse the judgment and remand the matter with directions for the court to vacate the order granting Nationstar's motion to enforce the Amendment and enter a new order denying it.
II
BACKGROUND
The Hansons sued Nationstar for causes of action related to their efforts to obtain modifications of two home loans and Nationstar's efforts to foreclose on the property securing the home loans (property). Through mediation, the parties agreed to settle their dispute under terms which included requiring (1) Nationstar to pay the Hansons $85,000 in two installments, (2) Nationstar to request the tradelines associated with the two loans to be deleted from the Hansons' credit reports, (3) the Hansons to sign a grant deed transferring ownership of the property to Nationstar, and (4) the Hansons to vacate the property.
The parties memorialized the settlement in the written Agreement. The Agreement included a provision stating, "The San Diego County Superior Court ... shall retain jurisdiction to enforce this [Agreement] ... pursuant to ... Code of Civil Procedure [section] 664.6 [(section 664.6)]. [The Hansons] stipulate and agree that any Motion to Enforce the [Agreement] pursuant to [section] 664.6 may be brought via ex parte application and ex parte notice." (Italics omitted.)
The Agreement stated it was made and entered into as of February 19, 2016; however, the Hansons did not sign it until February 29, 2016, and Nationstar did not sign it until April 6, 2016, at the earliest. Meanwhile, the court, having been notified of the settlement by the Hansons, dismissed the action without prejudice on April 20, 2016. Nothing in the record indicates the parties asked the court, either orally before the court or in a signed writing, to retain jurisdiction to enforce the Agreement.
The parties later entered the Amendment to extend the date and time for the Hansons to vacate the property. The Amendment included a provision stating, "In the event [the Hansons] breach their obligations ... by failing to vacate the Property by [the agreed upon date and time], [the Hansons] stipulate and agree that Nationstar may immediately file the executed Stipulation for Entry of Judgment attached to the Agreement ... and the Judgment Pursuant to Stipulation attached to the Agreement ... and may proceed with eviction ... without the need to file a new lawsuit. [The Hansons] further agree that the filing of the Stipulation for Entry of Judgment ... shall not preclude entry of a judgment enforcing this [Amendment] ... pursuant to ... [section] 664.6."
The Amendment stated it was made and entered into as of June 23, 2016; however, the Hansons did not sign it until July 7, 2016, and Nationstar did not sign it until July 12, 2016. Meanwhile, the Hansons dismissed their action with prejudice on June 23, 2016. Nothing in the record indicates the parties asked the court, either orally before the court or in writing, to retain jurisdiction to enforce the Amendment.
When the Hansons did not vacate the property by the agreed upon date and time, Nationstar filed an ex parte application for the court to enforce the Amendment under section 664.6 and to enter a judgment awarding Nationstar possession of the property along with monetary damages, penalties, and attorney fees. After receiving further briefing from the parties, the court granted the motion and entered a judgment awarding Nationstar immediate possession of the property; a writ of possession; and damages, penalties, attorney fees and costs totaling $60,950.
III
DISCUSSION
Section 664.6 provides: "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." (Italics added.) The interpretation of section 664.6, and its application to this case, are issues of law we review de novo. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437 (Wackeen).)
The pending litigation requirement in section 664.6 affects a court's subject matter jurisdiction in two ways relevant to this appeal. First, a court has no subject matter jurisdiction to enforce a settlement if the settlement was not entered into while litigation between the settling parties was pending. (Sayta v. Chu (2017) 17 Cal.App.5th 960, 965–966 (Sayta); Kirby v. Southern Cal. Edison Co. (2000) 78 Cal.App.4th 840, 845; Viejo Bankcorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206.) Second, a court has no subject matter jurisdiction to enforce a settlement after litigation between the settling parties has been dismissed unless, while the litigation was still pending, the parties asked the court, either orally before the court or in a signed writing, to retain jurisdiction. (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1155–1156; Sayta, supra, at p. 966; Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1010–1011 (Hagan); Wackeen, supra, 97 Cal.App.4th at p. 440.)
Assuming, without deciding, the parties in this case entered the Agreement and the Amendment while the litigation between them was still pending, the record does not show the parties ever formally asked the court to retain jurisdiction to enforce the Agreement or the Amendment. The court therefore lacked subject matter jurisdiction to hear Nationstar's motion to enforce the Amendment.
Nationstar contends we must presume from the record's silence the appropriate request was made at the appropriate time and the court had the requisite subject matter jurisdiction. (See Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [a judgment presumes subject matter jurisdiction and the party attacking the judgment has the burden of showing lack of subject matter jurisdiction]; see also 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 5, p. 589.) However, had the parties made an appropriate request for the court to retain jurisdiction, we would expect them to assert they did so. Neither party has made such an assertion. We also would expect there to be at least a minute order in the record documenting the request and the court's assent. Neither party has produced such an order despite our specific inquiry into the court's subject matter jurisdiction and despite having requested judicial notice of numerous other court documents bearing on this topic. Consequently, the record's silence in this case rebuts rather than supports the presumption of subject matter jurisdiction.
The language in the Agreement and the Amendment purporting to vest the court with retained jurisdiction is unavailing as subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel. (Sayta, supra, 17 Cal.App.5th at p. 967; Hagan, supra, 115 Cal.App.4th at p. 1008.) Unavailing for the same reason is Nationstar's assertion it did not consent to notifying the court of the parties' settlement or placing the case on the court's dismissal calendar (see fn. 2, ante).
As the court lacked subject matter jurisdiction to enforce the Agreement and the Amendment, the court's order granting Nationstar's section 664.6 motion is void. The corresponding judgment is also void.
Because we reverse on jurisdictional grounds, we do not address the other procedural or substantive issues raised in the appeal. We also do not address the Hansons' motion to submit additional evidence, Nationstar's motion to submit additional evidence, Nationstar's motion for judicial notice of the grant deed and related recorded documents, Nationstar's motion for sanctions, and Nationstar's application to file a reply to the Hanson's opposition to Nationstar's motion for sanctions. (See Hagan, supra, 115 Cal.App.4th at p. 1011.)
IV
DISPOSITION
The judgment is reversed and the matter is remanded to the superior court with directions to vacate the court's order granting Nationstar's motion to enforce the Amendment and to enter a new order denying the motion for lack of subject matter jurisdiction. The parties are to bear their own appeal costs.



McCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



IRION, J.