Judge: Melvin D. Sandvig, Case: PC057046, Date: 2023-10-20 Tentative Ruling

Case Number: PC057046    Hearing Date: October 20, 2023    Dept: F47

Dept. F47

Date: 10/20/23

Case #PC057046

MOTION TO SET ASIDE DISMISSAL & ENTER JUDGMENT

Motion filed on 6/22/23.

MOVING PARTY: Plaintiff National Collegiate Student Loan Trust 2007-3

RESPONDING PARTY: Defendant Christina Sanchez

RELIEF REQUESTED: An order setting aside and vacating the dismissal of this action and entering judgment against Defendant Christina Sanchez pursuant to the settlement agreement.

RULING: The motion is denied without prejudice.    

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a debt Plaintiff National Collegiate Student Loan Trust 2007-3 (Plaintiff) was owed by Defendant Christina Sanchez (Defendant) in the amount of $47,046.55.  On 5/9/16 Plaintiff filed this action against Defendant for Breach of Contract.

On 6/12/17, the parties entered a Conditional Stipulated Settlement Agreement (Agreement) which was filed with the Court on 6/15/17.  On 6/20/23, the Court dismissed the action without prejudice and retained jurisdiction under CCP 664.6. 

Defendant has defaulted under the terms of the Agreement by not making any payments since 4/10/23.  (See Boone Decl. ¶9).  On 6/22/23, Plaintiff filed and served the instant motion seeking an order setting aside and vacating the dismissal of this action and entering judgment against Defendant Christina Sanchez pursuant to the Agreement.  No opposition or other response to the motion has been filed. 

ANALYSIS

The proof of service for the motion indicates that the motion and supporting documents were served on “STEPHEN P. REIDER/400 N. Tustin Ave., Ste.401/Santa Ana CA 92705.”  Defendant was/is represented by the firm Fitzgerald & Campbell.  Attorney Stephen P. Reider is only one of the three attorneys listed on documents filed by Defendant.  The proof of service makes no reference to the law firm.  In the 6+ years since defense counsel filed documents on behalf of Defendant, attorney Reider could have left the firm.  Therefore, any notice should be directed to the law firm as well as the individual attorneys.  Additionally, the suite number for the law firm on documents it filed with the court is “375” not “401” as indicated in the proof of service. 

There is no response to the motion by Defendant to cure the defects in the notice.  

Even if the motion had been properly served, it would be denied. 

The “Conditional Stipulated Settlement” entered by the parties and filed with the Court on 6/15/17 provides that:

“In the event DEFENDANT fails to make any payment by its respective due date, PLAINTIFF will send written notice of default to DEFENDANT in care of DEFENDANT's counsel, providing 10 days from the date of said notice in which to cure said default. In the event DEFENDANT fails to cure said default, and upon Declaration of PLAINTIFF or Plaintiff's Attorney regarding said default, the Court shall set aside the dismissal without prejudice, resume jurisdiction over the matter, and enter a Judgment in favor of PLAINTIFF and against  DEFENDANT as agreed in Paragraph 1 of this stipulation.”  

(See Boone Decl., Ex.1, p.3 ¶9)

Plaintiff’s counsel does not indicate that Defendant was provided with notice of the default and time to cure as provided for in the Agreement nor has any other evidence been submitted indicating that such notice and opportunity to cure was provided to Defendant.  (See Boone Decl. ¶¶9-11 and exhibits attached thereto). 

CONCLUSION

The motion is denied without prejudice.