Motion to Set Aside and Enter Judgment Pursuant to CCP §§ 473(b) and 664.6
CASE NUMBER: 26CV-0209989 Tentative Ruling on Motion to Set Aside and Enter Judgment Pursuant to CCP §§ 473(b) and 664.6: Plaintiff Gerlinger Foundry and Machine Works, Inc. moves to set aside the dismissal entered on May 7, 2026 under CCP § 473(b) and to enforce the settlement agreement attached to the Declaration of Eric Woodstrom as Exhibit A pursuant to CCP § 664.6. Defendant Conxtech, Inc. opposes the motion.
Request for Judicial Notice. Defendant requests the Court take judicial notice of the Request for Dismissal filed on May 7, 2026. The request is granted pursuant to Evid. Code §§ 452(d) and 453.
Merits. Prior to reaching any other part of this motion, the Court must consider whether the dismissal entered on May 7, 2026 should be set aside pursuant to CCP § 473(b).
The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. ...
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 the attorney’s mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will 4
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result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. CCP § 473(b).
The Request for Dismissal filed on May 7, 2026 was signed by Plaintiff’s counsel Aaron W. Moore, utilizing Judicial Council Form CIV-110, which has been adopted for mandatory use. Under Item 1, counsel checked the a.(2) box that reads “Without Prejudice” rather than the a.(3) box that reads “Without prejudice and with the court retaining jurisdiction (Code. Civ. Pro., § 664.6).”
Plaintiff has requested relief from the dismissal pursuant to CCP § 473(b), arguing that “Plaintiff dismissed the case based upon a mistaken belief that Defendant would comply with the parties’ Settlement Agreement. Alternatively, Defendant misrepresented to Plaintiff that Defendant would comply with the Agreement, which equally constituted mistake, inadvertence, surprise, or excusable neglect within the meaning of CCP § 473(b).” Plaintiff’s Memorandum, p. 3, lns. 16-19. Plaintiff provided no evidence to support this. The only evidence provided by Plaintiff is the Declaration of Eric Woodstrom which does not address the mistaken belief asserted in the moving papers. Without any evidence of the mistaken belief, the Court denes the CCP § 473(b) portion of the motion and cannot reach the rest as the case has been dismissed and there is no retention under CCP § 664.6.
Had Plaintiff presented evidence of the statements made in the moving papers, the motion would still be denied. Plaintiff has asserted a deliberate act based on a mistaken belief. However, based on the evidence that was presented, which includes the settlement agreement that includes a CCP § 664.6 retention in Section 5, it is puzzling why the Request for Dismissal was filed without CCP § 664.6 retention of jurisdiction. Had an attorney affidavit of fault been filed on the basis that counsel was neglectful in checking box 1.a.(2) or that checking box 1.a.(2) was a mistake, the outcome would be different. However, Plaintiff has made it clear in the moving papers and again in the reply that dismissing without CCP § 664.6 retention was a deliberate act based on a mistaken belief.
Attorney Fees. Defendant requests that the Court find Defendant to be the prevailing party on the motion and find that Defendant be awarded its reasonable attorney fees and costs in an amount to be established by noticed motion under CRC 3.1702. Section 5 of the settlement agreement contains a sentence that reads, “The prevailing party in any action or proceeding related to the enforcement of this Agreement shall be entitled to recover its attorney fees and costs.” While the Court can easily find that Defendant is the prevailing party on the CCP § 473(b) motion, the Court’s jurisdiction ends at the CCP § 473(b) motion. Per Defendant’s own argument, the Court does not have jurisdiction to enforce the settlement agreement. The Court will make no further findings.
The motion to set aside is DENIED. The Court does not have jurisdiction to reach the balance of the motion. Plaintiff submitted a proposed Order that will be modified to reflect the Court’s ruling.
JPMORGAN CHASE BANK, N.A. VS. SEVERE