Judge: Melvin D. Sandvig, Case: 21CHCV00365, Date: 2023-07-20 Tentative Ruling
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Case Number: 21CHCV00365 Hearing Date: July 20, 2023 Dept: F47
Dept. F47
Date: 7/20/23
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 (Defendant). 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 motion was
originally scheduled for hearing on 5/23/23.
On 5/23/23, the matter was continued to 7/20/23 due to
issues with the service of the motion.
Specifically, the Court noted that 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.” (See 5/23/23 Minute Order citing Haney
Decl., Ex.1 ¶5). The proof of service
for the motion’s original hearing date indicated that it was mailed to
Defendant on 2/13/23. However, since Defendant never appeared in this action, there
was/is no “address of record” for Defendant in the court file. Nor was/is an “address of record” for
Defendant set forth in the Settlement Agreement. Since there was no response to the motion
from Defendant, there was no way to confirm that the motion was properly served
on Defendant and the matter was continued.
(See 5/23/23 Minute Order).
Thereafter, on 6/1/23, Plaintiff filed a “Notice of
Continued Motion for Setting Aside Dismissal and Entering Judgment Pursuant to
Defendant’s Default Under Settlement and Release Agreement” and a proof of
service for the notice indicating that it was mailed to Defendant on 5/31/23 at
the same unconfirmed address where the motion was served by mail for the
5/23/23 hearing date.
On 7/12/23, Plaintiff filed a proof of service indicating
that after two unsuccessful attempts at personal service, the motion and
supporting documents were served on Defendant via substitute service on 7/8/23
and, thereafter, mailed on 7/11/23. (See
Proof of Service filed 7/12/23).
The substitute service on 7/8/23 and the subsequent
mailing are untimely for the 7/20/23 hearing date. A motion must be served at least 16 court
days before the hearing date, plus additional days if served by a manner other
than personal service. See CCP
1005(b). Substitute service is deemed
complete on the 10th day after mailing. CCP 415.20.
The substitute service of the motion on 7/8/23 only provided 9 court
days’ notice before the 7/20/23 hearing date.
Again, there is no response to the motion to cure the
defect in notice. Therefore, the matter
is placed off calendar.