Judge: Melvin D. Sandvig, Case: 21CHCV00365, Date: 2023-05-23 Tentative Ruling
Case Number: 21CHCV00365 Hearing Date: May 23, 2023 Dept: F47
Dept. F47
Date: 5/23/23
Case #21CHCV00365
MOTION SETTING
ASIDE DISMISSAL & ENTERING JUDGMENT
Motion filed on 2/14/23.
MOVING PARTY: Plaintiff Discover Bank
RESPONDING PARTY: Defendant Florence Lankford
RULING: The motion is placed off calendar.
On 5/7/21, Plaintiff Discover Bank (Plaintiff) filed this
action for account stated and open book account against Defendant Florence
Lankford. Before Defendant made an
appearance in this action, Plaintiff and Defendant entered into a written
Settlement Agreement pursuant to which the parties agreed that judgment would
not be entered as long as Defendant made certain periodic payments toward the
settlement amount. (See Haney
Decl., Ex.1). Pursuant to the Settlement
Agreement, this action was thereafter dismissed with the Court retaining
jurisdiction under CCP 664.6. (Haney
Decl., Ex.1 ¶4, Ex.2). Defendant has
defaulted under the Settlement Agreement and failed to cure such default. (Haney Decl., Ex.3).
On 2/14/23, pursuant to CCP 664.6, Plaintiff filed the
instant motion seeking an order setting aside the dismissal of this action and
entering judgment in favor of Plaintiff and against Defendant due to
Defendant’s default under the terms of a written Settlement Agreement between
Plaintiff and Defendant.
The Settlement Agreement provides that a motion to obtain
judgment shall be served on Defendant, or Defendant’s counsel, if applicable,
by mail at Defendant’s “address of record.”
(Haney Decl., Ex.1 ¶5). The proof
of service for the motion indicates that it was mailed to Defendant on
2/13/23. However, as noted above,
Defendant never appeared in this action.
Therefore, there is no “address of record” for Defendant in the court
file. Nor is an “address of record” set
forth for Defendant in the Settlement Agreement. There is also no response to the motion from
Defendant. As such, there is no way to
confirm that the motion was properly served on Defendant.
Based on the foregoing, the matter is placed off
calendar.