Pedro V. Vargas v. FCA US LLC

MOTION TO SET ASIDE DISMISSAL

 

MOVING PARTY: Plaintiff Pedro F. Vargas  

RESPONDING PARTY(S): Defendant FCA US, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law case.  Plaintiff Pedro F. Vargas sued Defendants FCA US, LLC and Cerritos Dodge, alleging violations of the Song-Beverly Act.  On March 29, 2022, Defendants accepted Plaintiff’s CCP Section 998 Offer to Compromise. On February 3, 2023, this court ordered the case dismissed with prejudice.

Plaintiff now moves to set aside the dismissal. Defendant opposed. 

TENTATIVE RULING:

Plaintiff’s Motion to Set Aside Dismissal is DENIED/MOOT.

Moving party to give notice.

DISCUSSION:

Motion to Set Aside Dismissal

Analysis

On March 29, 2022, Defendants accepted Plaintiff’s Code of Civil Procedure section 998 Offer to Compromise, which settled the case. (Lopez Decl. ¶ 3.) Pursuant to motion by Plaintiff, this court awarded Plaintiff a total of $51,769.21 in attorneys’ fees, costs, and expenses. (See November 3, 2022, Order.) On February 3, 2023, this court held an Order to Show Cause Re: Dismissal (Settlement). No parties appeared.  Accordingly, the court dismissed the action with prejudice.  (See February 3, 2023, Order.) 

Plaintiff now moves to set aside or vacate the dismissal under both the mandatory and discretionary provisions of Code of Civil Procedure section 473(b).  Plaintiff contends the settlement terms have not been completed because at the time Plaintiff filed this motion, $10,519.21 in costs remained due. 

“Section 473, subdivision (b) provides for two distinct types of relief. Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.)

In opposition, Defendant represents that it sent the remaining costs in the amount of $10,519.21 to Knight Law Group via FedEx on March 6, 2023. (Shepardson Decl. ¶ 3.) Plaintiff has not filed a reply brief disputing this. Thus, it appears both parties have complied with all obligations under the settlement.

Accordingly, Plaintiff’s Motion to Set Aside Dismissal is DENIED/MOOT.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   April 10, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.