Judge Martha K. Gooding, Case 2019-01070788 2022-08-22 Tentative Ruling

Judge: Martha K. Gooding, Case: 2019-01070788, Date: 2022-08-22 Tentative Ruling

Motion to Set Aside/Vacate Dismissal

The unopposed Motion by Plaintiff Infoshare Systems, Inc. to vacate the dismissal of its complaint entered on 5/18/22 [ROA #608] is GRANTED. Plaintiff is to separately submit the parties’ stipulation for dismissal providing for the court to retain jurisdiction under Code Civ. Proc. § 664.6 no later than August 31, 2022.

Code Civ. Proc. § 473(b) applies here.

Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” Code Civ. Proc. § 473(b) provides for two types of relief. Leader v. Health Industries of Am., Inc., 89 Cal. App. 4^th 603, 615 (2001). A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. Id. at 615-616.

A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. Id. at 616. But there is case law that the mandatory relief provision is inapplicable to voluntary dismissals. See Nacimiento Regional Water Management Advisory Comm. v. Monterey County Water Resources Agency, 122 Cal. App. 4^th 961, 967 (2004) (citing Huens v. Tatum (1997) 52 Cal. App. 4^th 259, 266). This does not prevent relief under the discretionary provisions of section 473(b). See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256–257 and fn. 3.

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.

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. Code Civ. Proc. § 473(b); Weil & Brown, Cal. Prac. Guide, Civ. Proc. before Trial (Rutter 2012) §§ 5:279, 11:41, 11:41.2.

Under the discretionary relief provision, Plaintiff’s motion is timely and Plaintiff has submitted the proposed “other pleading.” [Gessin Decl., Ex. 3.]

Plaintiff is ordered to give notice.