Judge Layne H. Melzer, Case 2010-00355561 2023-01-05 Tentative Ruling

Judge: Layne H. Melzer, Case: 2010-00355561, Date: 2023-01-05 Tentative Ruling

Plaintiff Banc of America Practice Solutions, Inc.

Motion to Set Aside/Vacate Dismissal

Plaintiff Banc of America Practice Solutions, Inc. seeks an order setting aside the dismissal of this action entered on 1/7/16 [ROA #247], is denied.

Where a settlement agreement provides the court may retain jurisdiction to enforce the settlement, but the dismissal fails to provide for retained jurisdiction, the plaintiff’s remedy is to move to vacate or modify the dismissal under Code Civ. Proc. § 473(b) for “mistake, inadvertence or excusable neglect.” Basinger v. Rogers & Wells (1990) 200 Cal. App. 3d 16, 21. In the absence of such relief, it is necessary to file a new action to enforce the terms of the settlement agreement. Hagan Engineering, Inc. v. Mills, 115 Cal. App. 4^th at 1010.

Mistake about settlement is a mistake for purposes of relief under Code Civ. Proc. § 473(b) for “mistake, inadvertence, or excusable neglect.” H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 90 Cal. App. 4^th 1375, 1368-69; Code Civ. Proc. § 473(b). But see Basinger v. Rogers & Wells (1990) 220 Cal. App. 3d 16, 23-24 (finding defendant’s late payment under settlement agreement insufficient grounds to vacate dismissal without prejudice). Such a motion for relief must be brought no later than six months after entry of the dismissal, unless counsel was not authorized to request dismissal. Code Civ. Proc. § 473(b); Weil & Brown, Cal. Prac. Guide, Civ. Proc. before Trial (Rutter 2012) §§ 5:279, 11:41, 11:41.2.

Although CCP § 473(b) relief normally must be sought within 6 months after the dismissal is entered (see ¶ 5:279), an unauthorized dismissal may be vacated at any time; i.e., “within a reasonable time after (the client's) learning of it, regardless of the time limitations in section 473.” [Whittier Union High School Dist. v. Sup.Ct. (Carroll) (1977) 66 CA3d 504, 509, 136 CR 86, 89]

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 11-A §11:41.2.

In the absence of a timely motion to set aside the dismissal, the unpaid settlement party is relegated to bringing a separate action to enforce the settlement agreement. Hagan Engineering, Inc. v. Mills, 115 Cal. App. 4^th at 1006, 1011.

Here, the court may have been requested to retain jurisdiction to enforce the settlement, but it did not do so when it dismissed Defendants at the OSC. [ROA #247.]

Plaintiff has filed its motion to set aside that dismissal over six years later. And while counsel declares she did not receive notice of the OSC or of the order of dismissal itself, she does NOT provide any good explanation as to what happened.

In any event, Plaintiff’s motion is untimely under Code Civ. Proc. §473(b).

Because Plaintiff’s motion is untimely under Code Civ. Proc. §473(b), the motion is denied.