Judge: Elaine W. Mandel, Case: 23SMCV04900, Date: 2025-01-16 Tentative Ruling

Case Number: 23SMCV04900    Hearing Date: January 16, 2025    Dept: P

Tentative Ruling

Klever Programmatic v. Residents Medical Group, Case no. 23SMCV04900

Hearing date January 16, 2025

Plaintiff’s Motion to Vacate Dismissal

Plaintiff Klever Programmatic, Inc. sued defendant Residents Medical Group, Inc. for breach of contract arising from defendant’s failure to pay for consulting services. A notice of settlement was filed 4/18/24. Plaintiff moved to dismiss, and the case was dismissed 6/20/24. Min. Order 6/20/24. Plaintiff now moves to set aside the dismissal, arguing plaintiff’s specially appearing counsel at hearing 6/20/24 erred by dismissed the case without requesting the court retain jurisdiction per Cal. Code Civ. Proc. §664.6. Plaintiff requests the court set aside the 6/20/24 dismissal and schedule an OSC re: settlement so plaintiff may move for dismissal again with the court retaining jurisdiction this time. No opposition was filed.

The court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six (6) months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit of attestation to his or her mistake, inadvertence. surprise or excusable neglect, vacate: (1) resulting default entered by the clerk by his or her client, and which will result in entry of a default judgment; or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or excusable neglect. Cal. Code Civ. Proc. §473.

Dismissal was entered 6/20/24. Min. Order 6/20/24. The instant motion was filed 12/11/24. Plaintiff is within the statutory cutoff by 9 days. Plaintiff offers the declaration of counsel Brian Tapper stating “On June 20, 2024, my office had a special appearance attorney appear at the court hearing… due to my inadvertence and mistake, I did not inform the appearing attorney to only dismiss the case pursuant to Cal. Code Civ. Proc. §664.4. As a result, the court dismissed the case without retaining jurisdiction pursuant to Cal. Code Civ. Proc. §664.6.” Decl. Tapper para. 2.

For the court to retain jurisdiction pursuant to Cal. Code Civ. Proc. §664.6, all parties must sign, indicating their consent. Cal. Code Civ. Proc. §664.6. Plaintiff does not provide a copy of the settlement agreement, so there is no evidence the parties agreed that the court retain jurisdiction.

While the appearance attorney may have failed to inform the court of the 664.6 provision, there is no evidence that the parties dismissed pursuant to 664.6. The matter will be continued to allow plaintiff to file a copy of the settlement agreement. If the parties agreed that the court will retain jurisdiction pursuant to 664.6, the court will so order. If the parties did not so agree, the court cannot read such a provision into the settlement. CONTINUED for approximately one week.