Settlement and costs·fatal if missed
Enforcing a settlement under section 664.6, and the request that has to happen before the dismissal
A settlement of a pending case is enforceable by motion under CCP 664.6, but the section you learned is gone. It was repealed and re-added in 2023 and the new one has been operative since 1 January 2025. It runs to subdivision (i), it lets counsel sign, and it lets counsel stipulate to retained jurisdiction, which is the one thing three published cases say counsel cannot do.
- Which statute
- Not the one in your form file. Section 664.6 was repealed and a new section added, operative 1 January 2025 Stats. 2023, ch. 478, sec. 13 (AB 1756); operative date at CCP 664.6(i)
- Who can sign
- The party, an attorney who represents the party, or an insurer's agent authorized in writing CCP 664.6(b)(1) to (b)(3). The insurer route stops where the party would owe anything above limits
- Where signing by counsel does not work
- Civil harassment, Family Code, Probate Code, juvenile and dependency matters take the party's own signature CCP 664.6(c) switches off (b)(2) and (b)(3) in those five
- Signing without authority
- Professional discipline, absent good cause, on top of any civil remedy CCP 664.6(d)
- Retaining jurisdiction
- Ask before the case is dismissed in its entirety. A court cannot retain jurisdiction it has already lost Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440
- A retention clause in the agreement
- Is not a request to the court. The court has to be asked, on the record or in a signed stipulation it actually receives Sayta v. Chu (2017) 17 Cal.App.5th 960, 967; Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 918
- Unresolved
- Whether counsel alone can now make that request. The statute says parties "or their counsel." The cases say the parties themselves. No published decision has been asked
- What the judge may do
- Take evidence and decide disputed facts, but not write a term the parties never agreed to Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810; Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360
On this page
The version of section 664.6 that most practice files still carry is two sentences long and turns on a single question: did the parties sign it. The version in force since 1 January 2025 runs from subdivision (a) to subdivision (i), carries a discipline provision, a fee provision, a clerk provision, and a procedure the court can start by itself.
Two of the new provisions point in the opposite direction from the leading cases, and nobody has reconciled them. That is the part worth reading before the next dismissal goes out the door.
What the section says now
Repealed and re-added, not amended. The old case law construes text that no longer exists in that form.
The operative provision is CCP 664.6 as added by Stats. 2023, ch. 478, sec. 13 (AB 1756), effective 1 January 2024 and operative 1 January 2025 by its own terms at CCP 664.6(i). Subdivision (a) reads:
"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."
The first sentence is the old statute. The second sentence is new, and it is the first time the retention procedure has appeared in the section's own text rather than in the case law built on top of it.
The other seven subdivisions, and which ones actually do work
CCP 664.6(e)(1) lets the court, on its own motion and "without stipulation from the parties or their counsel," set an order to show cause why it should not dismiss the whole action without prejudice and retain jurisdiction, once a party seeking affirmative relief has filed a notice of conditional settlement. CCP 664.6(e)(2) carves out permissive joinder actions under the chapter commencing with CCP 378 and Labor Code actions under the part commencing with Lab. Code 2698.
CCP 664.6(f) is the housekeeping that makes the dismissal survivable. Paragraph (1) lists what may still be filed after the dismissal, including a good faith settlement application, a lien reduction or determination motion, a minor's compromise petition, and a motion on the settlement terms themselves. Paragraph (2) says the court shall exercise its retained jurisdiction if a party files notice that a written agreement required of all parties was not signed by all of them. Paragraph (3) says a party who already paid a first appearance fee is not charged again. Paragraph (4) directs the clerk to accept these filings.
CCP 664.6(g) preserves a later request for dismissal with prejudice. CCP 664.6(h) told the Judicial Council to update the forms by 1 January 2025, which is where the revised CIV-110 comes from.
Who has to sign
The answer changed in 2021 and the current statute carries it forward. Counsel's signature binds, in most case types.
Levy v. Superior Court (1995) 10 Cal.4th 578, 586 held that "parties" in section 664.6 "means the litigants themselves, and does not include their attorneys of record," so an agreement signed only by counsel was outside the statute. That holding no longer governs who may sign. Stats. 2020, ch. 290 (AB 2723) added a definition of signature effective 1 January 2021, and the current statute carries it at CCP 664.6(b): the party, an attorney who represents the party, or, where an insurer is defending and indemnifying, an agent the insurer has authorized in writing.
Two limits sit next to it. CCP 664.6(b)(3) switches the insurer route off where the party the insurer is defending would be liable under the settlement for any amount above policy limits. CCP 664.6(c) switches both the attorney route and the insurer route off entirely in a civil harassment action, an action under the Family Code, an action under the Probate Code, and any matter being adjudicated in juvenile or dependency court.
Electronic signatures, and why a typed name is not one
J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974 held that a printed name at the foot of an email is not a signature under the Uniform Electronic Transactions Act (Civ. Code 1633.1 et seq.) unless the party agreed to transact electronically and intended the name to authenticate the record. Showing the name was deliberately typed is not enough. Review was denied.
That holding is untouched by the 2021 and 2025 changes, which go to whose signature counts, not to what counts as one. An email exchange settling a case is still the weakest form of a written 664.6 stipulation.
Keeping the court, and the sentence that may have changed the rule
The request has to reach the court before the case leaves it. Everything else about retention is now genuinely open.
The settled rule comes from Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440, which held that a request that the court retain jurisdiction under section 664.6 has to be made during the pendency of the case rather than after the case has been dismissed in its entirety, by the parties themselves, and either in a writing signed by the parties or orally before the court. The court "cannot 'retain' jurisdiction it has lost."
Sayta v. Chu (2017) 17 Cal.App.5th 960, 967 applied all three and held that a retention clause sitting inside the settlement agreement is not a request to the court where the agreement was never put in front of the court and the parties filed unconditional dismissals. Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 918 held the same on a retention provision that was never attached to the dismissal form or otherwise transmitted before dismissal, and described the route as a stipulation and proposed order the court actually receives.
What is not in doubt is the timing. The request is keyed to an event, not to a period: it has to be in front of the court before the case is dismissed in its entirety. Nothing runs from service of a document, so no service extension under CCP 1010.6 or CCP 1013 reaches it, and there is no mechanism in the section for making the request late.
The form changed too, and the box is at item 1a
Judicial Council form CIV-110, Request for Dismissal, was revised effective 1 January 2025 under CCP 664.6(h). Item 1a now carries a dismissal option reading "Without prejudice and with the court retaining jurisdiction (Code Civ. Proc., section 664.6)," and the form calls for all parties to sign where the court will retain jurisdiction.
California Rule of Court 3.1385, the duty to file notice of settlement of the entire case, picked up advisory committee comments in the 1 January 2025 package saying that section 664.6 "allows for but does not mandate" dismissal of conditionally settled cases, and that rule 3.1385's own procedures still have to be followed where the parties settle and agree to dismiss under section 664.6.
The motion itself, and the line the judge cannot cross
The court is a trier of fact on this motion. It is not a drafter.
Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360, holds that on a section 664.6 motion the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement, and may take oral testimony or decide the motion on declarations alone. Its factual findings stand if supported by substantial evidence.
The limit is Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810: section 664.6 "creates only a summary procedure for specifically enforcing certain types of settlement agreements," and nothing in it "authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon." Machado v. Myers (2019) 39 Cal.App.5th 779, 792, 794 applied that in both directions and reversed a judgment that had left agreed terms out, holding the court has no authority to add, omit or alter a material term.
Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428, is worth knowing in a multiparty case: the statute does not require every party to assent in the same manner, so a party who signed outside the court's presence and a party who agreed orally on the record can be held to the same settlement, as long as the material terms are the same.
The motion is an ordinary noticed motion, so CCP 1005(b) governs the clock: served and filed at least 16 court days before the hearing, extended by service method under CCP 1010.6 or CCP 1013, with opposition at nine court days and reply at five.
If the case is already dismissed and nobody asked
Section 664.6 is closed. What is left is slower, and one of the routes is a new lawsuit.
Where the action was dismissed in its entirety and no retention request ever reached the court, Wackeen at 440 is the answer: there is no jurisdiction to retain, so there is no summary procedure. The settlement is still a contract. An action for breach of that contract is the ordinary route, and it is a new case with its own filing fee, its own service, and its own pleading burden.
Relief from the dismissal itself would have to come through CCP 473, and it is not a general repair. No published decision was located holding that section 473 restores section 664.6 jurisdiction after a voluntary dismissal, and this page does not say that one does.
What breaks if you get this wrong
Four ways a settlement that everyone agreed to stops being enforceable by motion.
Filing the dismissal first and asking the court to keep the case afterwards
Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440: the request has to be made during the pendency of the case, and the court "cannot 'retain' jurisdiction it has lost." There is no relief provision in section 664.6 and no late route back into it.
Relying on the retention paragraph inside the settlement agreement
Sayta v. Chu (2017) 17 Cal.App.5th 960, 967 and Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 918: a clause the court never sees is not a request to the court, and the parties cannot confer jurisdiction on the court by agreeing with each other. Put it in the stipulation and proposed order, or on the record, or in item 1a of the CIV-110.
A signature gap in a case type where counsel cannot sign
CCP 664.6(c) takes attorney and insurer signatures out of civil harassment, Family Code, Probate Code, juvenile and dependency matters. Where the case is still pending, the gap is fixable by getting the party's signature. CCP 664.6(f)(2) separately makes the court's exercise of retained jurisdiction mandatory when a party files notice that a written agreement required of all parties was not signed by all of them.
Leaving a material term for the court to supply
Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 and Machado v. Myers (2019) 39 Cal.App.5th 779, 792: the court may decide what the parties agreed to and may not write what they did not. A term left open goes back to the parties, or to a breach action, not into the judgment.
Before the dismissal goes out
- Decide whether the court keeps the case, and decide it before anyone signs a CIV-110. This is the only step on the page that no later motion repairs.
- Get the clients' own signatures on the retention request, not just counsel's, until a published decision says subdivision (a) means what it appears to say.
- Check the case type against CCP 664.6(c) before letting an attorney signature carry the agreement.
- Put the retention language somewhere the court receives it: item 1a of the CIV-110, a stipulation and proposed order, or the reporter's transcript. Not only in the agreement.
- Write every material term into the document. Anything left for later is a term the court has no power to supply.
- If it settled at mediation, write the disclosure carve-out in at the time, under Evid. Code 1123.
- Calendar performance. Retained jurisdiction under subdivision (a) runs "until performance in full," so the date the last payment is due is the date the file can close.
The local layer
Everything above is statewide. What sits on top is a calendaring practice rather than a rule, and it varies by department more than by county.
San Diego. A notice of conditional settlement under rule 3.1385 puts the case on a dismissal track, and the new CCP 664.6(e)(1) order to show cause gives the department a way to clear the calendar while keeping the case. Whether a given department uses it, and what it wants to see in response, is a departmental practice.
Riverside and San Bernardino. Same statute, same form. No published local rule was located changing the retention procedure in either county.
Everywhere else, the statewide rule is the rule. This site does not guess at how a department in a county it does not practice in handles a conditional settlement, and stops here.