Judge: Maurice A. Leiter, Case: 19STCV43134, Date: 2022-12-07 Tentative Ruling

Case Number: 19STCV43134    Hearing Date: December 7, 2022    Dept: 54

Hearing Date: December 7, 2022

Department 54, Judge Maurice Leiter

Motion to Set Aside Settlement

Moving Party: Plaintiff Acosta Enterprises, Inc.

Responding Party: None.

T/R:     PLAINTIFF’S MOTION TO SET ASIDE THE SETTLEMENT AGREEMENT IS DENIED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. 

            The Court considers the moving papers.  No opposition was filed.

BACKGROUND

            The operative First Amended Complaint asserted causes of action for (1) disgorgement, (2) set aside fraudulent transfer, (3) breach of contract, (4) contractors’ license bond, (5) fraud, and (6) negligence against Sergio Moreno, ASE Investments Solutions, Fremont Cabinet Imports, Inc., Michael Yuan Lee, Suretec Indemnity Company, Ten Advisers, Inc., dba All City Builders, and Vedoy’s Fire and Safety Company.

            On August 1, 2022, Plaintiff dismissed Suretec Indemnity Company.

            On September 21, 2022, Plaintiff and remaining Defendants represented to the Court that they had reached a settlement. Counsel for Plaintiff read the terms of the settlement into the record; the agreement included that the Court would retain jurisdiction to enforce the terms of the settlement pursuant to section Code of Civil Procedure § 664.6.    

            On November 3, 2022, Plaintiff filed the instant Motion to set aside the settlement.

ANALYSIS

            Plaintiff moves to set aside the settlement pursuant to Code of Civil Procedure section 473(b) because Plaintiff’s counsel failed to incorporate a clause into the agreement relating to a definite deadline for Defendants to purchase the subject property. Plaintiff argues this was due to Plaintiff counsel’s inadvertent mistake due to physical and mental impairments on the day the settlement was reached.  Plaintiff’s counsel represents he had commenced cancer treatment, received cancer treatment on the day the settlement was reached, and as a result his thinking was cloudy and he inadvertently forgot to include a definite period for Defendants to purchase the property.  (See MacCarley Decl.)

            Section 473(b) provides in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

            Section 473(b) does not give the Court authority to set aside the settlement reached between the Parties.  Section 473(b) authorizes the Court to set aside an “order, or other proceeding taken against” Plaintiff.  There was no order entered against Plaintiff or a proceeding taken against Plaintiff.  Instead, the Parties reached a settlement, and based on the Parties settlement the Court vacated the trial date.  The Court is not aware of any authority, and Plaintiff has failed to provide any authority, that the Court may use section 473(b) to set aside a settlement.

            In addition, “The power of the trial court under Code of Civil Procedure section 664.6 ... is extremely limited. [T]he trial court is under a duty to render a judgment that is in exact conformity with an agreement or stipulation of the parties. . . . It is not the province of the court to add to the provisions thereof; to insert a term not found therein; or to make a new stipulation for the parties.’”  (Machado v. Myers (2019) 39 Cal.App.5th 779, 792 (citations and quotations omitted); see Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176 [“The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.”])

            To modify the settlement agreement there must be mutual consent between the Parties.  (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1375 [“[T]he court [is] not permitted to modify the existing settlement agreement without the mutual consent of the parties.”])  Plaintiff failed to provide a declaration from Defendants or stipulation that they consent to the addition of the clause proposed by Plaintiff.  The Court may not modify or set aside the Parties’ settlement agreement.