Judge: William A. Crowfoot, Case: 21GDCV01136, Date: 2023-04-24 Tentative Ruling

Case Number: 21GDCV01136    Hearing Date: April 24, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

This action was filed on September 3, 2021 by plaintiff Good Health Inc. dba Premier Pharmacy Services (“Plaintiff”) against defendant Golden Cross Healthcare and Does 1 to 10.  On October 5, 2021, Plaintiff filed an amendment adding Sadvipra LLC (“Sadvipra”) as Doe 1.  On October 12, 2021, Plaintiff filed another amendment adding 1450 North Fair Oaks, LLC (“1450 North Fair Oaks”) as Doe 1.  Sadvipra and 1450 North Fair Oaks separately filed answers to Plaintiff’s complaint on December 8, 2021.  On February 8, 2022, 1450 North Fair Oaks filed an amended answer indicating that it was doing business as “Golden Cross Healthcare” in the caption and body of the document. 

On March 25, 2022, Plaintiff filed a request for dismissal dismissing the entire action of all parties and all causes of action without prejudice.  Dismissal was entered by the clerk the same day. 

On March 28, 2022, Plaintiff filed another request to dismiss the entire action with prejudice.  This request was not entered because it was a duplicate request. 

On September 30, 2022, Plaintiff attempted to file two documents: (1) a stipulation for judgment for $98,027.25 signed by Plaintiff and 1450 North Fair Oaks’s representatives, and (2) a stipulated judgment on Form JUD-100.  Both documents were rejected by the clerk on the same day because the case had been dismissed.

On March 29, 2023, Plaintiff filed this motion to vacate dismissal pursuant to the discretionary provision of Code of Civil Procedure (“CCP”) section 473(b) or, in the alternative, CCP section 1008(c).  The motion is unaccompanied by any proof of service and no proof of service has been filed with the Court.  Therefore, the motion is taken off calendar. 

However, even if notice had been given, Plaintiff’s motion under CCP 473 would still be denied as untimely.  A trial court has jurisdiction to vacate a judgment of dismissal under CCP 473 where the dismissal was entered as a result of the plaintiff’s mistake, inadvertence, surprise, or excusable neglect.  A motion seeking relief under 473(b) “shall be made within a reasonable time, in no case exceeding six months . . . after the dismissal . . . was taken.”  (Code Civ. Proc., § 473, subd. (b).)  Here, the voluntary dismissals were entered more than a year ago on March 25, 2023.  Therefore, the Court lacks jurisdiction to grant the requested relief.  (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 23 [“In the absence of grounds for relief under section 473, a settling defendant is entitled to rely on the finality of a filed voluntary dismissal.”] 

Plaintiff’s request for relief under CCP 1008(c) is also denied.  The statute states, “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.”  Plaintiff filed the voluntary dismissal; the Court did not enter an order of dismissal.      

This outcome may seem harsh, but Plaintiff’s remedy would be to file an action for breach of a settlement agreement.  See note 12 of Basinger. Also, Plaintiff cannot bring a motion under CCP 664.6 because there was no express request for the Court to retain jurisdiction before he dismissed the case.  (Sayta v. Chu (2017) 17 Cal.App.5th 960, 967 [“The parties were required to present to the trial court a proper request to retain jurisdiction for purpose of section 664.6 motions.”])  Here, the stipulated judgment was not filed with the request for dismissal and even if it were, the stipulated judgment does not expressly ask the court to retain jurisdiction. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 24th day of April, 2023