Judge: Michael E. Whitaker, Case: 21SMCV01260, Date: 2024-10-31 Tentative Ruling


Case Number: 21SMCV01260    Hearing Date: October 31, 2024    Dept: 207

TENTATIVE RULING

 

DEPARTMENT          207

HEARING DATE       October 31, 2024

CASE NUMBER        21SMCV01260

MOTION                    Motion to Set Aside Dismissal/Entry of Judgment

MOVING PARTY      Plaintiff 1427 Lincoln Santa Monica

OPPOSING PARTY   none

 

MOTION

 

On July 26, 2021, Plaintiff 1427 Lincoln Santa Monica LLC (“Plaintiff”) filed suit against Defendant Nicholas Morris (“Defendant”) to recover for breach of a lease and damages to Plaintiff’s real property. 

 

On March 13, 2023, Plaintiff filed a Notice of Settlement, and the Court set an Order to Show Cause Re: Settlement (“OSC”) for September 13, 2024.  Plaintiff did not submit any documents or appear at the OSC.  Consequently, the Court dismissed the case without prejudice.

 

Plaintiff now moves to set aside the dismissal and have judgment entered against Defendant for breaching the settlement agreement.  The motion is unopposed.

 

LEGAL STANDARDS

 

                          I.          SET ASIDE DISMISSAL

 

a.     DISCRETIONARY AND MANDATORY RELIEF

 

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].) 

 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

 

                                                                        i.     DISCRETIONARY RELIEF

 

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

 

                                                                      ii.     MANDATORY RELIEF

 

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

 

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.) 

 

                        II.          ENFORCE SETTLEMENT

 

Code of Civil Procedure section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Code Civ. Proc., § 664.6.) In ruling on a motion to enter judgment, the court acts as a trier of fact. The court must determine whether the parties entered into a valid and binding settlement. To do so, the court may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.)

 

The issue on a motion to enforce settlement agreement under Code of Civil Procedure section 664.6 is whether the parties entered into a valid and binding settlement agreement. (See Viejo v. Bancorp. (1989) 217 Cal.App.3d 200, 209, fn. 4 [“a court's power to make factual determinations under section 664.6 is generally limited to whether the parties entered into a valid and binding settlement agreement”].)  In other words, the only issue before the court is whether an agreement exists; not whether the agreement has been breached.

 

DISCUSSION

 

            As a threshold matter, Code of Civil Procedure section 1005 provides that written notice shall be given of all moving and supporting papers at least 16 days prior to the hearing.  (Code Civ. Proc., § 1005, subd. (b).) 

 

            Here, although Plaintiff has provided a “Certificate of Service” that indicates “I hereby certify that on October 4, 2024, a true and correct copy of the foregoing document was served on Defendant via electronic mail” the Court finds the certificate to be faulty.  First, it is not signed under penalty of perjury, and therefore holds no evidentiary value.  It also does not indicate what electronic service address was used to send the document or what electronic service address the documents were sent to, or specifically what document(s) were served on Defendant.  It also does not specify Defendant’s name. 

 

            Therefore, Plaintiff has not met its burden of demonstrating that it properly served the moving and supporting papers on Defendant at least 16 days prior to the hearing.

 

CONCLUSION

 

            Therefore, the Court continues the hearing to December 16, 2024 at 8:30 A.M. in Department 207 to enable Plaintiff to perfect service, as necessary, and to provide proper proof to the Court of such service. 

 

            Plaintiff shall also provide Defendant with notice of this order and of the continued hearing and file the notice with a proof of service forthwith.

 

 

 

 

 

DATED: October 31, 2024                                                    ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court