Judge: Mark C. Kim, Case: 20LBCV00214, Date: 2022-08-16 Tentative Ruling
Case Number: 20LBCV00214 Hearing Date: August 16, 2022 Dept: S27
Plaintiff, Shane Manalang filed
this action against Defendants, Kamal Bijanpour, Kamal Bijanpour, Inc., and
Bijanpour Psychiatric Medical Group for breach of contract, common counts, and
fraud, arising out of Defendants’ alleged failure to pay Plaintiff for
physician assistant services. Plaintiff
sought damages in the amount of $1.5 million.
On 7/22/21, Plaintiff and
Defendants appeared at an FSC. The
parties entered into a settlement in open court. On the same day, the parties signed a
stipulation stating that the settlement is enforceable per CCP §664.6, and that
the Court shall retain jurisdiction to enforce the settlement. The stipulation is attached as Exhibit 2 to
the moving papers. The parties
formalized their settlement agreement in writing, which is attached as Exhibit
1 to the moving papers. At ¶1(a) of the
agreement, Defendants agreed to pay a total of $628,562.00 to Plaintiff. Plaintiff filed a request for dismissal of
the entire action subsequent to the parties’ settlement.
a. Dismissal
Usually, the court loses subject matter jurisdiction when
an action is voluntarily dismissed (with or without prejudice). Thereafter, it
has no power to enforce a settlement agreement. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d
200, 206, 265 CR 620, 623. 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 CCP §473(b) for “mistake,
inadvertence or excusable neglect.” Basinger
v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.
Plaintiff’s dismissal, filed on 8/27/21, does not include
a clause providing for retained jurisdiction.
Therefore, absent an order setting aside the dismissal, the Court cannot
grant the motion to enforce the settlement.
The motion is denied without prejudice.
The Court strongly urges Defendants to comply with their
settlement obligations, as the Court will likely grant any future motion to
vacate the dismissal and enter judgment, especially if the motion is unopposed,
as this motion is.
Plaintiff is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative
as directed by the instructions provided on the court website at www.lacourt.org. If
the department does not receive an email indicating the parties are submitting
on the tentative and there are no appearances at the hearing, the motion may be
placed off calendar. If a party
submits on the tentative, the party’s email must include the case number and
must identify the party submitting on the tentative. If any party does not
submit on the tentative, the party should make arrangements to appear remotely
at the hearing on this matter.