Judge: John J. Kralik, Case: 21BBCV00939, Date: 2024-01-26 Tentative Ruling
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Case Number: 21BBCV00939 Hearing Date: February 23, 2024 Dept: NCB
North Central District
AMY DERRY, Plaintiff, v.
KHANH MAI, et al.,
Defendants. |
Case No.: 21BBCV00939
Hearing Date: February 23, 2024 [TENTATIVE] ORDER RE: MOTION FOR RELIEF FROM DISMISSAL
|
BACKGROUND
A. Allegations
Plaintiff Amy Derry (“Plaintiff”) alleges that she rents the property at 802 N. Glenoaks Blvd. in Burbank from Defendants Khanh Mai and Nhat Bui (“Defendants”). Plaintiff alleges that she and Defendant entered into a rental agreement on April 17, 2020, which dictated that she pays $1,900 in monthly rent and the lease term would be for 6 months from April 20, 2020 to October 20, 2020 for the middle unit of a tri-plex. (Compl., ¶¶8-9.) Plaintiff alleges that she paid 6 months up front, plus a security deposit for a total amount of $13,300 to be paid in 2 installments of $6,650 on April 17 and April 20, 2020. (Id., ¶10.) Plaintiff alleges that the unit was not ready for occupancy on April 20, 2021, but was instead ready on April 24, 2021 (Plaintiff alleges 2021 dates). (Id., ¶11.) Plaintiff alleges that though the unit was listed at $1,800 per month, Defendants insisted on $1,900 per month because Plaintiff’s cats may cause damage to the floor; however, Plaintiff alleges that the floors were already damaged before her move. (Id., ¶12.) Plaintiff also alleges that since moving into the property, she has experienced unhabitable conditions, such as a non-working stove, need for roof repairs (though her roof did not leak), fear of a brick wall crumbling, several windows not closing properly, having to provide her own smoke and carbon monoxide alarms, unsafe heating unit, bugs dropping from walls, rotting wood on the patio, a clogged toilet, low water pressure, a harassing neighbor/tenant, and a cumbersome entertainment center left in the unit. (Id., ¶¶13-28.) Plaintiff alleges that despite Defendants’ knowledge of the above, they failed to take any actions to remedy the issues. (Id., ¶29.)
The complaint, filed October 27, 2021, alleges causes of action for: (1) nuisance; (2) violation of Civil Code, § 1940.2; (3) breach of contract; (4) breach of implied covenant of quiet enjoyment; (5) negligence; (6) negligent infliction of emotional distress; (7) breach of the implied warranty of habitability; (8) intentional misrepresentation; (9) fraudulent concealment; and (10) negligent misrepresentation.
B. Relevant Background and Motion on Calendar
On April 18, 2023, the parties attended the Mandatory Settlement Conference with the Court where the case settled. The Court agreed to retain jurisdiction pursuant to CCP § 664.6 to enforce the terms of the settlement agreement.
On June 15, 2023, Plaintiff dismissed this action with prejudice.
On December 11, 2023, Plaintiff filed an ex parte application for motion for relief from dismissal and a separate motion for relief from dismissal. On December 12, 2023, the Court set the motion on calendar. The Court stated that the ex parte papers shall serve as the moving papers. Plaintiff was ordered to give notice.
The matter came for hearing on January 26, 2024. The Court continued the hearing to February 23, 2024 so that Plaintiff could serve the application papers, motion papers, and the relevant minute orders on Defendants.
On January 29, 2024, Plaintiff filed another motion for relief from dismissal, to confirm settlement, and to seek a determination of good faith settlement. On February 8, 2024, Defendants filed an opposition brief.
Under CCP § 473(b)’s discretionary prong, a motion seeking relief from a default/dismissal on the ground of mistake, inadvertence, surprise, or excusable neglect must be made within a reasonable time, which cannot exceed six months after the entry of the judgment, dismissal, order, or other proceeding taken against him or her. Relief cannot be granted under CCP § 473(b) when the proceeding invoking relief is instituted or the motion made more than six months after the default or dismissal. (Thompson v. Vallembois (1963) 216 Cal. App. 2d 21, 24 [finding that the Court lacked jurisdiction to grant relief under CCP § 473 after the six-month period].)
Under section 473(b)’s mandatory prong, the Court shall vacate: (1) a resulting default entered by the clerk against counsel’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal. This section is mandatory unless the Court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. A motion brought under the mandatory prong must be made no more than 6 months after entry of judgment and be accompanied by an attorney’s sworn affidavit.
DISCUSSION
Plaintiff (a self-represented litigant) moves for relief from the dismissal and requests that the case be reopened as there was never a final settlement hearing to confirm everything and Defendants and their counsel have breached the settlement and/or the settlement was not in good faith. (See Ex Parte Application at p.1.) In the ex parte application papers, Plaintiff moves pursuant to CCP § 473(b). (Id. at pp.2-3.) Her ex parte application papers provide no further analysis on how discretionary or mandatory relief is proper pursuant to section 473(b).
In the motion papers Plaintiff argues that the dismissal was filed prematurely by her former attorney, Isaac Toveg, without her consent and that the dismissal was a surprise to Plaintiff and a mistake on Mr. Toveg’s part. (See Mot. at Pl.’s Decl.) She argues that Mr. Toveg refused to do his job and write up a motion to set aside the dismissal. She states that she did not bring this motion sooner because of personal and family matters, including serious health issues and the fact that she is not an attorney. (Id.) She states that she hopes for a hearing to go over the settlement, which was not done in good faith and that both Defendants and their counsel have breached the contract, as well as her prior attorney. (Id.)
As an initial matter, relief under the mandatory prong of CCP § 473(b) is not appropriate based on Plaintiff’s prior counsel’s mistake as no attorney affidavit accompanies this motion.
Under the discretionary prong of CCP § 473(b), though the motion is within 6 months of the dismissal date, Plaintiff states that due to health reasons, she did not bring this motion earlier within a reasonable time as required under CCP § 473(b). Plaintiff has not explained what health concerns she had that prevented her from filing this motion sooner and within a reasonable time.
The substantive justification for Plaintiff’s motion is that the action was dismissed without her consent or knowledge, such that it was a surprise to her. This contention is not well taken and is highly improbable. The matter settled pursuant to a written agreement that was executed in open court on April 18, 2023. She represented on that date that she understood and agreed to the terms of the settlement, which were extremely favorable to her. Although the Court does not have a copy of the settlement before it, it is certainly true that dismissal was required as part of the settlement under which Plaintiff received a large cash settlement. At the time of the dismissal, Plaintiff was represented by counsel. Shortly after the dismissal was entered on June 15, 2023, Plaintiff filed a substitution of attorney on June 21, 2023 substituting out Mr. Toveg and stating that she would represent herself. To the extent that she argues that her prior counsel, Defendants, and/or defense counsel breached the settlement agreement, Plaintiff has not provided the terms of the settlement agreement such the Court cannot ascertain how to enforce the settlement agreement or what specific relief Plaintiff is seeking under the settlement agreement. The Court has retained jurisdiction to address such concerns, but Plaintiff has not set forth a breach of the settlement by any party.
In the opposition papers, Defendants argue that Plaintiff has not shown excusable mistake to warrant relief under section 473(b). They also argue that mere breakdown in the attorney-client relationship between Plaintiff and Mr. Toveg does not amount to mistake, inadvertence, surprise, or neglect that would support setting aside Plaintiff’s voluntary dismissal.
Finally, to the extent Plaintiff seeks to confirm the settlement agreement or seeks a good faith determination of the settlement, Plaintiff has not filed an appropriate, separate motion for such relief, nor specified the reason why such relief would be proper.
The motion to set aside the dismissal is denied.
CONCLUSION AND ORDER
Plaintiff Amy Derry’s motion for relief from dismissal is denied.