Judge Ronald F. Frank, Case Number: 24TRCV01155, Date: 2025-01-28 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV01155, Date: 2025-01-28 Tentative Ruling

Case Number: 24TRCV01155 Hearing Date: January 28, 2025 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 29, 2025

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CASE NUMBER: 24TRCV01155

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CASE NAME: BMO Bank, N.A. v. Wiederkehr DDS, Inc., et al.

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MOVING PARTY: (1) Plaintiff, BMO Bank, N.A.

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RESPONDING PARTY: (1) Defendant, Wiederkehr DDS, Inc., Chanel Ko Wiederkehr (No Opposition)

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TRIAL DATE: None set.

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MOTION:¿ (1) Motion for Dismissal without Prejudice Based Upon Settlement and to Retain Jurisdiction of this Matter

Tentative Rulings: (1) GRANTED.

I. BACKGROUND¿¿

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A. Factual¿¿

On April 4, 2024, Plaintiff, BMO Bank, N.A. (“Plaintiff”) filed a complaint against Defendants, Wiederkehr DDS, Inc., a California Corporation, Chanel Ko Wiederkehr, an individual, and DOES 1 through 50. The complaint alleges causes of action for: (1) Breach of Written Contract – 8/2/2018; (2) Breach of Written Contract – 8/2/2018 Promissory Note ($50,000); (3) Breach of Written Guaranty – 8/2/2018 Commercial Guaranty; (4) Breach of Written Contract – 8/2/2018 Commercial Security Agreement; and (5) Breach of Written Contract – 8/2/2018 Promissory Note ($310,000).

On October 16, 2024, Plaintiff filed a Notice of Conditional Settlement of the Entire Case, indicating that the parties had entered into a settlement agreement that conditioned dismissal of this matter on the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement.

Now, Plaintiff has filed a Motion for Order Dismissing the Action without Prejudice Based Upon Settlement and to Retain Jurisdiction of this Matter.

B. Procedural

On November 8, 2024, Plaintiff filed this Motion for Order Dismissing the Action without Prejudice Based Upon Settlement and to Retain Jurisdiction of this Matter. To date, no opposition has been filed.

II. ANALYSIS¿

A. Legal Standard

California Rules of Court (“CRC”), rule 3.1385, subdivision (b) states: “Except as provided in (c) or (d), each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 fays after it receives notice of settlement unless good cause is shown why the case should not be dismissed.

B. Discussion

Here, Plaintiff’s motion indicates that it has entered into a settlement agreement with Defendants to resolve the issues raised by the pleadings in this action. Plaintiff states that pursuant to the settlement agreement, it was to file this motion requesting that the case be dismissed as to the Defendants, without prejudice, and with the Court retaining jurisdiction over this matter, presumably pursuant to Code of Civil Procedure section 664.6, to enforce the settlement notwithstanding the dismissal.

Additionally, per the settlement agreement, Defendants are required to make monthly payments to Plaintiff and in the event that the payments are not timely made when due, then Plaintiff, Defendant WDDS, and Defendant Wiederkehr, and each of them, agree to immediate entry of a judgment in favor of Plaintiff and against the Defendants, jointly and severally, minus any payments made by Defendants.

Plaintiff contends that it is not required to send any notice of default to the Defendants prior to seeking such a judgment entered by the Court in this action.

This Court GRANTS this motion and dismisses the case without prejudice, while maintaining jurisdiction.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Order Dismissing the Action without Prejudice Based Upon Settlement and to Retain Jurisdiction of this Matter is GRANTED..

Moving party to give notice.