GERLINGER FOUNDARY AND MACHINE WORKS, INC. VS. CONXTECH, INC.

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. seeks to enforce a settlement agreement reached between

Plaintiff and Defendant Contech, Inc. Defendant opposes the motion.

This matter was dismissed without prejudice on May 7, 2026, pursuant to the request of Plaintiff. The Request for Dismissal filed on May 7, 2026, was signed by Plaintiff’s counsel Aaron W. Moore. 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).” On July 20, 2026, the Court heard a motion seeking the same relief requested in this motion, however, the relief requested was based on different basis than claimed now.

In this motion, Plaintiff now argues that the Court has jurisdiction to hear the motion because no request to retain jurisdiction is required and even if the dismissal did need to be set aside for the Court to have jurisdiction, the mandatory attorney affidavit of fault provision of CCP § 473(b) applies.

The Court is not persuaded by the arguments made regarding the effect of the change to CCP § 664.6 which now reads, in part:

If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. CCP § 664.6(a)

Plaintiffs argue that the Court has jurisdiction because the “request” language was removed. The two sentences are separate. The first sentence addresses the Court enforcing a settlement agreement if certain conditions are met. The second sentence is regarding the matter being dismissed without prejudice with the Court still retaining jurisdiction to enforce the settlement. Judicial Council Form CIV-110 was amended January 1, 2025 to include Item 1.a.(3), which allows a party to simply check a box indicating that the dismissal is with the Court retaining jurisdiction.

The form contains the language “If Item 1a(3) is checked, all parties must sign.” This is because retention is not automatic. The parties have to agree to it. Because a stipulation had not been filed with the court and because there was no signature for Defendant on the CIV-110 returned by the clerk on May 5, 2026, the clerk was correct in not dismissing the matter the first time it was requested. The clerk provided clear instruction that the parties or their counsel must stipulate in writing or orally before the court for the 664.6. dismissal.

The CIV-110 form itself provides that a signature from Defendant is needed. There is nothing before the Court that leads the Court to the conclusion that the Court has jurisdiction to enforce the settlement here. Plaintiff dismissed the case without prejudice without seeking CCP § 664.6 retention.

However, the Court does have jurisdiction to hear a motion made pursuant to CCP § 473(b) as it relates to Plaintiff’s request to set aside the dismissal.

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 6

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 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 Court notes that the arguments made have changed drastically from the first motion to this motion. Previously, Plaintiff argued 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. The Court found that this assertion was not supported by evidence as the only evidence provided was the Declaration of Eric Woodstrom, which did not address the belief that Defendant would comply with the settlement agreement.

In the tentative ruling, the Court questioned why the Request for Dismissal was not made with a retention pursuant to CCP § 664.6. The Court specifically noted, “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.” The tentative ruling was ultimately adopted by the Court as the final ruling.

Plaintiff did not provide any declarations of counsel with the initial motion. Plaintiff now provides an affidavit of Aaron W. Moore in which Mr. Moore declares that he submitted a CIV-100 with Item 1.a.(3) checked, it was rejected, and

Because the clerk was mistaken about the parties stipulating for settlement and reserved jurisdiction under CCP § 664.6, and needing to get a dismissal on file pursuant to the parties Settlement Agreement, and the lack of ordinary procedures available to challenge a court clerk's determination, which was likely unnecessary, I mistakenly, or neglectfully, signed a request for dismissal without the box checked for "retaining jurisdiction" and had my staff file it. The Court then entered that dismissal. Moore Decl. ¶ 6.

This is in conflict with the position taken in the previous motion which made no mention of attorney fault and blamed the dismissal without CCP § 664.6 retention on a mistaken belief that Defendant would comply with the settlement agreement. While no affidavit was presented in the previous motion to that effect, it was included in both the moving papers and Reply which were signed by counsel Michael L. Ricks, who also signed the moving papers filed for this motion.

By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause 7

unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. CCP § 128.7(b)

Therefore, in the first motion, Mr. Ricks certified to the best of his knowledge, information, and belief, that the reason CCP § 664.6 retention was not included in the CIV-110 is because Plaintiff believed it was not needed as Defendant would comply. However, now, Mr. Ricks has certified to the best of his knowledge, information, and belief, that the actual reason is that the clerk made an error and Mr. Moore was mistaken or neglectful in filing the CIV-110 without CCP § 664.6 retention. The Court has already found that submitting the CIV-110 without CCP § 664.6 was an intentional act.

The Court recognizes that CCP § 473(b) contains a mandatory provision. However, relief is mandatory unless the Court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. In this instance, counsel is now claiming fault in a manner that is conflict with arguments previously made and in conflict with findings previously made by this Court. The Court finds that the dismissal was not in fact caused by the attorney’s mistake or neglect, but that the dismissal was an intentional act. The Court will not set aside the dismissal pursuant to CCP § 473(b), as again, the Court finds that filing the Request for Dismissal without CCP § 664.6 retention was an intentional act, not mistake or neglect.

Because the Court lacks jurisdiction to enforce the settlement absent the dismissal being set aside and because the Court is not setting aside the dismissal, the Court does not have jurisdiction to hear the balance of the motion.

The motion is DENIED. Plaintiff provided proposed Order that will be modified to reflect the Court’s ruling.

JACKSON VS. COLLINS, ET AL.