Judge Mark E. Windham, Case Number: 20STLC04989, Date: 2023-09-06 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC04989, Date: 2023-09-06 Tentative Ruling

Case Number: 20STLC04989 Hearing Date: December 13, 2023 Dept: 26

Interinsurance Exchange v. Charchyan, et al.

ENTER JUDGMENT PURSUANT TO STIPULATION

(CCP §§ 473, 664.6)

TENTATIVE RULING:

Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate Dismissal and Enforce Settlement is GRANTED IN PART AND DENIED IN PART. THE DISMISSAL ENTERED ON JANUARY 25, 2023 IS HEREBY VACATED BUT THE REQUEST TO ENFORCE THE SETTLEMENT AGREEMENT IS DENIED.

ANALYSIS:

Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Marine Charchyan and Avetik Charchyan (“Defendants”) on June 15, 2020. Defendants filed answers on September 28, 2021. The matter came for trial on September 19, 2022, at which time the parties represented that the case had been settled. (Minute Order, 09/19/22.) The Court set an order to show cause regarding dismissal for January 25, 2023. (Ibid.) When Plaintiff failed to appear at the order to show cause, the Court dismissed the case without prejudice. (Minute Order, 01/25/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on July 20, 2023. The Motion initially came for hearing on September 6, 2023 and was continued for further briefing to November 8, 2023. (Minute Order, 09/06/23.) Plaintiff filed a supplemental declaration on September 14, 2023. On November 8, 2023, Plaintiff appeared but the hearing was continued to November 15, 2023 due to the Court’s unavailability. (Minute Order, 11/08/23.) Plaintiff was ordered to give notice of the continuance. (Ibid.) On November 15, 2023, the Court noted that notice of the continuance had not been provided to Defendant as ordered and continued the hearing again to December 13, 2023. Proof of service of the notice of continuance has now been filed. (Notice of Continuance, filed 11/17/23.) Plaintiff also filed an amended supplemental declaration on November 20, 2023. No opposition has been filed to date.

Discussion

The request to vacate the dismissal is brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on attorney fault with respect to entry of default, default judgment, or involuntary dismissal, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The motion was timely filed within six months of dismissal of the action and is supported by an affidavit of attorney fault. Plaintiff’s counsel declares that they failed to calendar the January 25, 2023 order to show cause. (Motion, Bailey Decl., ¶5.) Therefore, the case is reinstated under Code of Civil Procedure section 473, subdivision (b).

Plaintiff also moves to enforce the settlement agreement reached with Defendants pursuant to Code of Civil Procedure section 664.6. which states in relevant part:

If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

(Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, “parties” under section 664.6 meant the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) The current statute provides that “parties” to a written agreement include “an attorney who represents the party” and an insurer’s agent. (Code Civ. Proc., § 664.6, subd. (b).) The written settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) The settlement agreement here does not comply with the statutory requirements set forth above because it was only signed by Defendants. (Motion, Kalpakian Decl., Exh. A, p. 2; Supp. Amended Kalpakian Decl., Exh. A., p. 2.) The agreement was not signed by Plaintiff, Plaintiff’s counsel, or agent, as required by the statute. Therefore, the settlement agreement is not enforceable under Code of Civil Procedure section 664.6.

Conclusion

Moving party to give notice.