Judge: Melvin D. Sandvig, Case: 21CHCV00365, Date: 2025-04-10 Tentative Ruling

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Case Number: 21CHCV00365    Hearing Date: April 10, 2025    Dept: F47

Dept. F47

Date: 4/10/25

Case #21CHCV00365

MOTION TO SET ASIDE DISMISSAL* & ENTER JUDGMENT

Motion filed on 10/30/24. 

MOVING PARTY: Plaintiff Discover Bank

RESPONDING PARTY: Defendant Florence Lankford

RELIEF REQUESTED: An order 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. 

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 Park Decl. ¶¶3-4, Ex.1).  Pursuant to the Settlement Agreement, this action was thereafter dismissed with the Court retaining jurisdiction under CCP 664.6.  (Park Decl. ¶5, Ex.1 ¶4, Ex.2).  Defendant has defaulted under the Settlement Agreement and failed to cure such default.  (Park Decl. ¶¶6-7, Ex.3). 

On 2/14/23, pursuant to CCP 664.6, Plaintiff filed a prior 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 prior motion 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 prior 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 to 7/20/23.  (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 prior 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 were untimely for the 7/20/23 hearing date.  Since there was no response to the motion to cure the defect in notice, the hearing on the prior motion was placed off calendar.  (See 7/20/23 Minute Order). 

On 10/30/24, Plaintiff filed the instant motion.  While the title of the motion indicates that it is a “Motion for Setting Aside Dismissal and Entering Judgment Pursuant to Defendant’s Default Under Settlement and Release Agreement,” the first paragraph of the notice merely asks the Court to “enter judgment in favor of Plaintiff and against Defendant Florence Lankford . . .” without requesting that the Court set aside the dismissal.  (See Notice of Motion, p.1:28-p.2:5); CRC 3.1110(a). 

No proof of service for the motion has been filed and Defendant has not filed a response to the motion. 

Based on the foregoing, the hearing on the motion is placed off calendar.   

The Court further notes that in violation of CRC 3.1110(f)(4) Plaintiff’s counsel has failed to electronically bookmark the exhibits attached to the declaration filed in support of the motion.  Counsel is warned that failure to comply with this rule in the future may result in matters being continued so that papers can be resubmitted in compliance with the rule, papers not being considered and/or the imposition of sanctions.