Judge: John C. Gastelum, Case: 17-00960437, Date: 2022-08-30 Tentative Ruling

Motion to Vacate Dismissal

Ruling:  Off Calendar – no hearing will be held.  Cross-Complainant Jacqueline Miller (“Miller”) unopposed motion to vacate the June 27, 2022 dismissal of this, pursuant to Code of Civil Procedure section 663, is GRANTED. 

Code of Civil Procedure section 663 states: “A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

1.    Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2.    A judgment or decree not consistent with or not supported by the special verdict.”

“All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case.”  (Code Civ. Proc., § 581d.)

Here, the Court granted Miller’s Motion to Enforce Settlement on May 31, 2022.  (ROA 342.)  The Court’s Order indicated that judgment would be entered in favor of Miller and against Cross-Defendant Bruce Elieff (“Elieff”) in the amount of $65,000.00 with an award of attorney fees in the sum of $4,550.00.  (Ibid.)  Miller had shown that she and Elieff entered into a valid, written, binding settlement agreement of the entire case and the Court had retained jurisdiction to enforce that settlement agreement pursuant to Code of Civil Procedure section 664.6.  (Ibid.)  Miller further showed that Elieff made an initial payment of $10,000.00 as required by the settlement agreement and failed to make any further payments.  (Ibid.) 

Based on the Court’s findings and May 31, 2022 Minute Order, the dismissal of this action on June 27, 2022 was not consistent with nor supported by the facts and had an incorrect or erroneous legal basis, the Court having previously found it had retained jurisdiction to enforce the parties’ settlement agreement and that judgment should be entered in Miller’s favor pursuant to that jurisdiction.

A motion pursuant to section 663 must be filed within 15 days of the date of mailing of notice of entry of judgment by the clerk.  (Simgel Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 313.)  The clerk served notice of the dismissal on June 30, 2022 by mail and Miller’s Motion was timely filed on July 11, 2022.

Given the foregoing, Miller’s Motion to Vacate Dismissal is GRANTED.