Judge: Christian R. Gullon, Case: 23PSCV01726, Date: 2025-06-10 Tentative Ruling

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Case Number: 23PSCV01726    Hearing Date: June 10, 2025    Dept: O

Tentative Ruling

PLAINTIFF’S NOTICE OF MOTION AND MOTION TO VACATE THE COURT’S MAY 9, 2025, JUDGMENT PURSUANT TO C. CIV. PROC. § 663 is MOOT/DENIED; the case is dismissed pursuant to CCP section 664.6.

Background

This is a lemon law case.

On June 8, 2023, Plaintiff DIANNE ALIZA GALLINERO SOTO filed suit against Defendant NISSAN NORTH AMERICA, INC.

On October 21, 2024, a notice of settlement was filed.

On Mahy 9, 2025, the court entered JUDGMENT RE STATUTORY OFFER TO COMPROMISE PURSUANT TO C.C.P. § 998.

On May 14, 2025, Plaintiff filed the instant motion.

On May 28, 2025, Defendant filed its opposition.

On June 3, 2025, Plaintiff filed a reply.

Discussion

This Motion is made pursuant to C. Civ. Proc. § 663 on grounds that (1) the Court entered judgment in violation of Plaintiff’s statutory right to object pursuant to Cal. Rules of Court, Rule 3.1590(g), and (2) the judgment entered varies materially from the 998 Offer of Compromise (“Settlement Agreement”), entered into by the Parties on October 18, 2024.

The judgment entered on 5/09/25 provides the following:

1. Judgment is entered against NISSAN NORTH AMERICA, INC. in favor of

DIANNE ALIZA GALLINERO SOTO in the amount of $49,682.48 (Forty-Nine Thousand Six

Hundred Eighty-Two and Forty-Eight Cents). Nissan will pay this amount within [3] business days

after Plaintiff surrenders the Subject Vehicle as described in Paragraph 1 of the 998.

2. Plaintiff shall reserve the right to petition the Court for an award of reasonably and

actually incurred attorney fees and costs recoverable pursuant to California Code of Civil Procedure

Section 1794(d). Any motion for fees must be made pursuant to California Rules of Court,

rule 3.1702. In ruling on Plaintiff’s fee/cost motion(s), the attorneys’ fees, expenses, and costs

amount shall be calculated as if Plaintiff was found to have prevailed in this action under

section 1794(d) of the California Code of Civil Procedure as of the date of this offer of judgment.

Nissan expressly reserves all defenses to Plaintiff’s fee/costs motion(s) and any award thereon.

Nissan will pay the amounts determined by the Court within 30 days after entry of the award unless

either party has filed a notice of appeal.

3. Plaintiff will deliver the Subject Vehicle to Nissan on a date, time, and place mutually

agreeable to the parties and no later than seventy-five (75) days after Plaintiff’s counsel has accepted

Nissan’s offer.

Plaintiff argues that the judgment “materially alters” from the parties’ settlement agreement (Motion p. 6) in the following ways:

1.     Paragraph 3 was not within the parties’ agreement

2.     Paragraph 3 is otherwise unenforceable as “Plaintiff cannot ensure the Subject Vehicle is surrendered within seventy-five days, because Morley, a company which is not a party to this lawsuit, determines the surrender timeframe. (Motion p. 7)

3.     Plaintiff “cannot file a motion for attorneys’ fees and costs without the Subject Vehicle being surrendered, as fees and costs accrue up until and including that time….Therefore, fees and costs cannot be fully determined until surrender occurs.” (Motion p. 7)

4.     “The Proposed Judgment contains the phrase ‘[3] business days after Plaintiff surrender[s] the Subject Vehicle as described in Paragraph 1 of the 998.’ However, the executed 998 states ‘The settlement checks(s) shall be sent by Nissan within 3 days after surrender of the subject vehicle.’ The language in the Proposed Judgment must be identical….” (Motion p. 7, emphasis added)

5.     There is no language in the judgment that the court will retain jurisdiction pursuant to CCP § 664.6.

Preliminary, the court notes that the ‘differences’ between the judgment entered and 998 offer are not material per Plaintiff’s own citation to Machado v. Myers (2019) 39 Cal.App.5th 779. In Machado, the settlement was intended to resolve a dispute between neighbors. (Id. at p. 783.) The appellate court determined that the judgment entered varied materially based upon some of the following differences: (i) the judgment entered completely omitted any reference to the license agreement while the 2016 proposed judgment referred to the fence and the license agreement as follows; (ii)  the proposed judgment included one of the party’s obligation to remove solar panels from the house on their property while the final judgment omitted any reference to this obligation; (iii) with respect to the relocation of the air conditioning unit, the proposed judgment provided that at the appellants' expense, appellants must relocate the air conditioning unit on the their property no later than 45 days after entry of this judgment to a certain locations and further provided that appellants are immediately and forever restrained from operating the air conditioning unit on the appellants' property until the air conditioning unit is relocated pursuant to this judgment but the final judgment attached a document depicting an air conditioning relocation area and restrained appellants from operating mechanical equipment anywhere on their property except within the air conditioning relocation area. (Id. at pp. 794-795.) Here, to the contrary, Plaintiff is pointing to the omission of the word ‘business’ days as a form of material breach or that the most issue with the time to file attorney fees. Or even as to surrender of the vehicle, surrender must happen, but Plaintiff takes issue with the hypothetical that it may happen outside this seventy-five-day window. All in all, unlike the court in Machado, here, the court is not creating material terms of a settlement as opposed to deciding what terms the parties themselves have previously agreed upon. (Id. at p. 790 [“The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.”].)

Setting aside that there are not “material” variations, all the foregoing issues are moot. “That a few words or phrases of Nissan’s [Proposed] Judgment differ from the terms of the signed 998 is immaterial and a red herring by Plaintiff. The vehicle was surrendered on April 22, 2025 and all settlement checks (repurchase, penalties, and lienholder) have been paid…All that remains are fees and costs, which is Plaintiff counsel’s responsibility.” (Opp. pp. 1-2.) And Plaintiff in reply doesn’t dispute otherwise: “[G]iven that the surrender of the Subject Vehicle has been completed and the settlement funds have been issued, and in light of the Code of Civil Procedure section 664.6 provision included in the Settlement Agreement but omitted from Defendant’s proposed judgment, Plaintiff is amenable to a dismissal without prejudice pursuant to section 664.6. Should the Parties be unable to resolve Plaintiff’s attorneys’ fees and costs, Plaintiff will file a noticed motion for attorneys’ fees.” (Reply p. 2, emphasis added.)

Conclusion

Based on the foregoing, the motion is moot; the court dismisses the case without prejudice pursuant to CCP section 664.6.