Judge: Michael E. Whitaker, Case: 22SMCV00254, Date: 2024-05-01 Tentative Ruling
Case Number: 22SMCV00254 Hearing Date: May 1, 2024 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE May 1, 2024
CASE NUMBER 22SMCV00254
MOTIONS 1. Motion to Set Aside/Vacate Dismissal
2. Motion for Entry of Stipulated Judgment
MOVING PARTY Plaintiff The
Hinds Law Group
OPPOSING PARTY none
BACKGROUND
On July 27, 2022, Plaintiff The Hinds Law Group, APC (“Plaintiff”)
requested, and the Court entered, the dismissal of the entire action without
prejudice. On February 2, 2024,
Plaintiff filed a stipulation for entry of judgment, indicating that the
parties had settled, which is why Plaintiff dismissed the action, but Defendant
had stopped making payments pursuant to the settlement.
On February 15, 2024, the Court issued a Minute Order, declining to
act on the stipulation on the basis that the voluntary dismissal of the entire
action deprived the Court of the authority to do so.
Plaintiff now moves to set aside the dismissal without prejudice of
the entire action, entered on July 27, 2022 and for entry of the stipulated
judgment. Plaintiff’s motions are both
unopposed.
LEGAL
STANDARD – SECTION 473 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.)
1. 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.”
2. 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.)
Further, “[t]he court's
determination of whether the default was caused by the attorney's mistake,
inadvertence, surprise, or neglect is in part a credibility determination. Credibility is an issue for the fact finder,
we do not reweigh evidence or reassess the credibility of witnesses.. When the
evidence gives rise to conflicting reasonable inferences, one of which supports
the findings of the trial court, the trial court's finding is conclusive on
appeal.” (Cowan v. Krayzman
(2011) 196 Cal.App.4th 907, 915 [cleaned up].)
ANALYSIS
1. MOTION
TO VACATE DISMISSAL
Here, two issues preclude the Court from vacating the dismissal. First, there is an absolute six month bar to
vacating dismissals. (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”]; Arambula v. Union Carbide Corp. (2005)
128 Cal.App.4th 333, 340 [“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.”]) The dismissal at issue was entered on July
27, 2022, yet Plaintiff did not move to vacate the dismissal until February 29,
2024, over a year and seven months later.
Second, although Plaintiff has
included the Declaration of Andrew Hinds, Jr. in support of the Motion,
describing the parties’ settlement and Defendants’ payment history, there is no
indication of mistake, inadvertence, surprise, or excusable neglect, as is
required by the statute.
Therefore, the Court denies
Plaintiff’s motion to vacate the dismissal.
2. MOTION
FOR ENTRY OF STIPULATED JUDGMENT
As the Court previously mentioned, because the case has been
dismissed, the Court lacks authority to enter the stipulated judgment. (See Minute Order, Feb. 15, 2024.)
In general, “[v]oluntary dismissal of an
action or special proceeding terminates the court's jurisdiction over the
matter.” (Mesa RHF Partners, L.P. v. Cityof Los Angeles (2019) 33
Cal.App.5th 913, 917 (hereafter Mesa).)
“If requested by the parties,
however, the trial court may retain jurisdiction over the parties to enforce
[a] settlement until performance in full of the terms of the settlement.” (Mesa,
supra, 33 Cal.App.5th at p. 917, emphasis in original [cleaned up].) “Because of its summary nature, strict
compliance with the requirements of section 664.6 is prerequisite to invoking
the power of the court to impose a settlement agreement.” (Ibid.)
“A request for the trial court to retain jurisdiction under section
664.6 must conform to the same three requirements which the Legislature and the
courts have deemed necessary for section 664.6 enforcement of the settlement
itself: the request must be made (1) during the pendency of the case, not after
the case has been dismissed in its entirety, (2) by the parties themselves, and
(3) either in a writing signed by the parties or orally before the court.” (Mesa,
supra, 33 Cal.App.5th at p. 917.) “The request must be express, not implied
from other language, and it must be clear and unambiguous.” (Ibid.)
Here, on July 20, 2022, while the case was still pending, counsel for
plaintiff filed a “Notice of Settlement with Reservation of Rights Re Payments
Due to Plaintiff.” Although the notice
of settlement indicates, “The parties further agreed that the settlement is
subject to a reservation of the Court under CCP § 664.6” it is signed only by
Plaintiff’s counsel. Subsequently, on
July 27, 2022, Plaintiff requested and the court entered the dismissal of the
action.
Therefore, there was no request for the Court to retain jurisdiction
made “by the parties themselves” during the pendency of the case. As such, the Court was divested of
jurisdiction on July 27, 2022, when it granted Plaintiff’s request for
dismissal of the action, having not received a request by the parties
themselves during the pendency of the case to retain jurisdiction.
Therefore, the Court also denies Plaintiff’s motion for entry of
stipulated judgment.
Conclusion
For the reasons stated, the Court
denies Plaintiff’s motion to vacate the dismissal entered on July 27, 2022 and
denies Plaintiff’s motion for entry of stipulated judgment.
The
Clerk of the Court shall provide notice of the Court’s ruling.
DATED: May 1, 2024 ___________________________
Michael E. Whitaker
Judge of the Superior Court