Judge: Shirley K. Watkins, Case: LC106496, Date: 2022-07-28 Tentative Ruling

Case Number: LC106496    Hearing Date: July 28, 2022    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Horeb Bobcat Service & Rental, Inc.’s Motion for Order Vacating and Setting Aside Acknowledgment of Full Satisfaction of Judgment is GRANTED.

            The court orders plaintiff to forthwith file a Partial Satisfaction of Judgment.

1. Introduction

               On November 20, 2017, Horeb Bobcat Service & Rental, Inc. (“Plaintiff”) initiated the present action by filing a Complaint against Gilad Avidor Incorporated (“Defendant”) and Does 1 through 20.  Plaintiff’s Complaint, which is based upon a written contract and an open book account, arises from Defendant’s failure to make timely payments to Plaintiff in connection with a business transaction.

               On February 28, 2018, following Plaintiff’s filing of a Request for Entry of Default, this Court entered default against Defendant.

               On April 19, 2018, following Plaintiff’s filing of a Request for Dismissal,  Does 1 through 20 were dismissed from this action, without prejudice.

               On May 7, 2018, Plaintiff filed a Request for Court Judgment against Defendant, requesting that this Court enter default judgment against Defendant in an amount of $34,629.32, consisting of damages equal to $30,925.00, interest equal to $2,219.82, attorneys’ fees equal to $1,000.00, and costs equal to $484.50.

               On November 26, 2018, Plaintiff filed a Declaration in Support of Default Judgment, Case Summary and Statement of Facts and Interest Calculations Pursuant to California Rules of Court, Rule 3.1800, and a Proposed Judgment upon Form JUD-100.

               On November 26, 2018, following review of Plaintiff’s Request for Court Judgment, this Court entered default judgment against Defendant in an amount of $34,629.32, consisting of damages equal to $30,925.00, interest equal to $2,219.82, attorneys’ fees equal to $1,000.00, and costs equal to $484.50.

               On January 10, 2019, a Writ of Execution was issued.

               On April 7, 2022, Plaintiff filed a Full Acknowledgment of Satisfaction of Judgment, notifying this Court that Defendant had paid the judgment entered on November 26, 2018, in full.

               On June 28, 2022, Plaintiff filed a Motion for Order Vacating and Setting Aside Acknowledgment of Full Satisfaction of Judgment, accompanied by the Declaration of Martin F. Goldman.

    

    

2. Discussion

               Plaintiff moves for an Order vacating and setting aside an “Acknowledgment of Satisfaction of Judgment” (hereinafter, “Acknowledgment”), which was filed with this Court on April 7, 2022, on the ground such Acknowledgment was filed by Plaintiff’s counsel through inadvertence and mistake, pursuant to Code of Civil Procedure section 473, subdivision (b).  (Code Civ. Proc., § 473, subd. (b) [“The court may, upon any terms as may be just, 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.”].)

               The Court, briefly, recites the relevant factual background with respect to Plaintiff’s present Motion.  As stated in the “Introduction” section of this Court’s Order, on November 26, 2018, pursuant to Plaintiff’s Request for Court Judgment, this Court entered default judgment against Defendant in a total of sum of approximately $34,629.32.  Following the entry of judgment, on or about December 3, 2018, Defendant agreed to satisfy the judgment pursuant to six (6) monthly installment payments, which would be made in December of 2018, and January through May of 2019.  (Goldman Decl., ¶¶ 3-6, Ex. 1.)  Pursuant to the parties’ agreement, Defendant sufficiently made the aforementioned monthly installment payments in December of 2018, and January through April of 2019.  (Id. ¶ 6, Ex. 2.)  In anticipation of receipt of Defendant’s final payment, which was scheduled to be made in May of 2019, Plaintiff’s counsel prepared the above-referenced Acknowledgment, which would be filed with the Court following Defendant’s final payment.  (Id. ¶¶ 8, 14.)  However, Defendant failed to make the requisite final monthly installment payment in May of 2019.  (Id. ¶ 9.)  Nevertheless, Plaintiff’s counsel, arguably through inadvertence and mistake, subsequently filed the Acknowledgment with this Court on April 7, 2022, incorrectly representing to this Court that Defendant had sufficiently satisfied the Court’s judgment, in full.  (Id. ¶¶ 10-23.)  Plaintiff, by and through Plaintiff’s counsel, now moves for an Order setting aside and vacating the Acknowledgment, pursuant Code of Civil Procedure section 473, subdivision (b).  (Code Civ. Proc., § 473, subd. (b).)

               Following a consideration of Plaintiff’s arguments and evidence, the Court finds an Order setting aside and vacating the Acknowledgment is warranted, pursuant to Code of Civil Procedure section 473, subdivision (b).  (Code Civ. Proc., § 473, subd. (b).)  Plaintiff’s counsel, Martin F. Goldman, Esq., has submitted a satisfactory declaration, establishing that Plaintiff’s filing of the Acknowledgment was caused by Plaintiff’s counsel’s inadvertence and mistake.  Plaintiff’s counsel declares he failed to adequately review the case file in order to ascertain whether or not Defendant had properly submitted the final installment payment, prior to filing the Acknowledgment with this Court.  (Goldman Decl., ¶ 11 [stating, “I did close my file by inadvertence, and did not follow up on the fact that the judgment debtor did not satisfy the Judgment and failed to make the final remittance per out agreement as set forth in Exhibit 1.”].)  Following Plaintiff’s counsel’s filing of the Acknowledgment, Plaintiff’s counsel reviewed the corresponding financial records and discovered the Acknowledgment was filed by mistake, as Defendant, indeed, failed to make the final installment payment in May of 2019 for the purposes of sufficiently satisfying the judgment issued on November 28, 2018.  (Id. ¶ 15-16.)   Based upon the representations made by Plaintiff’s counsel, under penalty of perjury, the Court finds an Order setting aside and vacating the Acknowledgment is warranted as Plaintiff’s counsel filed the Acknowledgment by mistake and inadvertence.  (Code Civ. Proc., § 473, subd. (b).)  

               In light of the foregoing, the “Acknowledgment of Satisfaction of Judgment”, filed by Plaintiff with this Court on April 7, 2022, is set aside, and vacated.

    

    

               The court orders plaintiff to forthwith file a Partial Satisfaction of Judgment.