Judge: Katherine Chilton, Case: 21STLC02421, Date: 2023-03-13 Tentative Ruling

Case Number: 21STLC02421     Hearing Date: March 13, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Thomas Boule

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Thomas Boule’s Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment is DENIED without prejudice.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of March 7, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 7, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 25, 2021, Plaintiff Thomas Boule (“Plaintiff”) filed an action against Defendant Luxury Meetings, Inc., a California corporation (“Defendant”) for breach of written guaranty agreement, breach of written agreement, and unjust enrichment.

On January 24, 2022, Plaintiff filed an Amendment to Complaint, adding Defendant Jacob Ahrens (“Ahrens”) as Doe 1.  On the same day, Plaintiff also filed Amendment to Complaint correcting Defendant’s name to Luxury Meetings, Inc., a Delaware corporation.

Non-Jury Trial was scheduled for September 22, 2022.  (3-25-21 First Amended Standing Order.)  On September 22, 2022, the Court noted that no appearances were entered for Plaintiff or Defendants and dismissed the Complaint without prejudice.  (9-22-22 Minute Order.)

            On February 16, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment (“Motion”).

            No opposition has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

III.            Discussion

On September 22, 2022, the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff or Defendants and dismissed the Complaint without prejudice.  (9-22-22 Minute Order.)

            On February 16, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment.

Plaintiff’s counsel states the parties signed a Settlement Agreement to settle the action on or around April 17, 2022.  (Emanuel Decl. ¶ 1, Ex. A.)  Defendants Luxury Meetings, Inc. and Jacob Ahrens signed a Stipulation for Entry of Judgment on or around April 7, 2022.  (Ibid. at ¶ 2, Ex. B.)  Defendants were served with a Notice of Default on May 23, 2022.  (Ibid. at ¶  3.)  On August 12, 2023, Plaintiff reserved a hearing date for a Motion to Enforce Settlement, with the earliest available date for the hearing being November 14, 2022.  (Ibid. at ¶ 4.)  Plaintiff’s counsel assumed that scheduling this hearing would cause the Court to continue the trial date or take it off calendar.  (Ibid. at ¶ 5.)  The Court dismissed the action without prejudice given that Plaintiff did not appear on September 22, 2022, the date scheduled for trial.  (Ibid. at ¶ 6.)  Plaintiff’s counsel argues that he has made a showing of “excusable neglect and/or excusable fault” and “has acted diligently” in moving to set aside the dismissal because he never received a copy of the Court order dismissing the action and learned about the dismissal in or around October 2022.  (Ibid. at ¶¶ 7-8.)  Plaintiff states that “[t]he case is settled and setting aside the dismissal will allow the enforcement of the settlement and have the Stipulation and Judgment entered.”  (Ibid. at ¶ 9.)

The Court notes that none of the documents related to the settlement and stipulation were filed with the Court prior to the dismissal.  Furthermore, no motion to enforce settlement was filed.  Thus, the Court does not find that Plaintiff’s counsel’s declaration and reasoning are sufficient to set aside the dismissal.

Moreover, the Court notes that Plaintiff has not filed proof that Defendants have been served with the summons and complaint in the instant action.

Accordingly, Plaintiff’s Motion is DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Thomas Boule’s Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment is DENIED without prejudice.

Moving party is to give notice.