On 08/22/2012 MATTHEW LOGUIDICE filed a Contract - Other Contract lawsuit against PARIS RASHAD BENSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH W. DAU, ADR NEUTRAL, BARBARA M. SCHEPER and MICHAEL P. LINFIELD. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RALPH W. DAU
BARBARA M. SCHEPER
MICHAEL P. LINFIELD
ALFREE GROUP INC. THE
ALTREE INVESTMENTS DOES 3
BENSON PARIS RASHAD
DOES 1 THROUGH 50
THE ALFREE GROUP A CA. GENERAL
TUOSTO JOEL SIMON DOE 1
FRIEDMAN RICHARD N. ESQ.
VOJDANI LAW GROUP PC
SULLIVAN JOHN W. ESQ.
8/22/2012: COMPLAINT FOR: 1. BREACH OF FIDUCIARY DUTY; ETC
8/27/2012: NOTICE OF CASE MANAGEMENT CONFERENCE
10/30/2012: FIRST AMENDED COMPLAINT FOR: 1. BREACH OF FIDUCIARY DUTY; ETC.
11/19/2012: PROOF OF SERVICE SUMMONS
12/7/2012: ANSWER TO FIRST AMENDED COMPLAINT FOR: OF FIDUCIIRY DUTY, ETC
12/21/2012: NOTICE OF RULING OF CASE MANAGEMENT CONFERENCE
3/5/2013: Minute Order
6/3/2013: PROOF OF SERVICE OF SUMMONS
7/1/2013: ANSWER TO COMPLAINT
8/2/2013: AMENDMENT TO COMPLAINT
9/30/2013: SUBSTITUTION OF ATTORNEY
12/31/2013: AMENDMENT TO COMPLAINT
12/31/2013: Minute Order
1/2/2014: NOTICE OF RULING ON PLAINTIFF MATEHEW LOGUIDICE?S APPLICATION FOR AN ORDER TO CONTINUE THE TRIAL AND ALL RELATED DATES
1/22/2014: Minute Order
2/27/2014: PROOF OF SERVICE SUMMONS
4/9/2014: Minute Order
Case Number: BC490644 Hearing Date: August 05, 2020 Dept: 34
SUBJECT: Motion to Vacate Dismissal
Moving Party: Plaintiff Matthew Loguidice
Resp. Party: None
Plaintiff’s motion to vacate dismissal is DENIED.
On August 22, 2012, Plaintiff Matthew Loguidice commenced this action against Defendants Paris Rashad Benson aka Paris Benson, dba The Alfree Group, Inc. for (1) breach of fiduciary duty; (2) constructive fraud; (3) conversion; (4) fraud; (5) breach of oral contract; (6) common counts – money had and received; (7) common counts – money paid; (8) unjust enrichment; and (9) constructive fraud.
On October 30, 2012, Plaintiff filed his first amended complaint (“FAC”) for (1) breach of fiduciary duty; (2) constructive fraud; (3) conversion; (4) fraud; (5) negligent misrepresentation; (6) breach of oral contract; (7) common counts – money had and received; (8) common counts – money paid; (9) unjust enrichment; and (10) constructive fraud.
On August 2, 2013, Plaintiff filed an amendment to the FAC, replacing DOE 2 with The Alfree Group.
On April 9, 2014, Plaintiff filed a request for dismissal and notice of settlement.
On April 9, 2014, pursuant to the notice of settlement and request for dismissal filed with the Court, the Court dismissed the case.
On May 5, 2020, Plaintiff filed the instant motion to set aside/vacate dismissal.
I. Legal Standard
Code of Civil Procedure section 473(b) provides, in relevant part:
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. 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.
(Code Civ. Proc., § 473(b).) The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of dismissal and must be made within a “reasonable time.”
Code of Civil Procedure section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a 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. (Code Civ. Proc., § 473(b)(2).)
Code of Civil Procedure section 473(d) provides that “the court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., §473(d).)
To obtain relief pursuant to Code of Civil Procedure section 664.6 after the action has been dismissed, the parties must request that the Court retain jurisdiction to enforce the settlement. “[T]he request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440.) The Court of Appeal has further clarified that it is insufficient to merely “includ[e] the language in a settlement agreement but not ask the court to retain jurisdiction.” (Sayta v. Chu (2017) 17 Cal.App.5th 960, 967.) In Sayta, although the parties had entered a valid, written settlement agreement that included a provision indicating the Court would retain jurisdiction pursuant to Code of Civil Procedure section 664.6, “nothing in the record indicates any part of it was communicated to the trial court before the dismissals. The parties were required to present to the trial court a proper request to retain jurisdiction for purpose of section 664.6 motions.” (Id.)
Most recently, in Mesa RHF Partners, L.P., v. City of Los Angeles (2019) 33 Cal. App. 5th 913, the Second District held that a request for dismissal containing jurisdiction retention language failed to comply with 664.6 because it only contained the signature of an attorney. “‘[P]arties' as used in section 664.6 . . . means the litigants
themselves, and does not include their attorneys of record.” (Id. at 918, quoting Levy v. Superior Court (1995) 10 Cal.4th 578, 586.)
Plaintiff moves “for an order setting aside the dismissal of this action entered on April 9, 2014 and for an order entering judgment pursuant to the terms of the written Settlement Agreement and Stipulation between the represented parties.” (Motion, p. 2:4-7.) Plaintiff moves for this order pursuant to Code of Civil Procedure sections 473(b)(2), 473(d), and 664.6. (Id. at p. 2:8-12.)
Plaintiff’s counsel declares that he is “asking relief from the Dismissal entered on April 9, 2014 due to mistake, inadvertence, excusable neglect and surprise.” (Vojdani Decl., ¶ 2.) Plaintiff’s counsel also declares that he is “requesting relief under Code of Civil Procedure Section 473(d) and 473(b)(2) for clerk's error in dismissing the action without retaining jurisdiction and/or attorney error in contributing to this error.” (Id. at ¶ 16.)
Plaintiff counsel asserts that “it appears that the Court dismissed the case without actually retaining jurisdiction pursuant to Code of Civil Procedure Section 664.6 as requested - which Plaintiff’s attorney was unaware prior to February 21, 2020.” (Ibid.) Plaintiff counsel explains that “this became an issue when Defendants defaulted on the balloon payment which was the last payment due under the Settlement Agreement and Stipulation.” (Ibid.) Plaintiff’s counsel declares that he “became aware of this fact when [he] attempted to obtain a Judgment pursuant to the Stipulation which the court denied” because “the Court indicated that the case was previously dismissed on April 9, 2014.” (Ibid.)
Plaintiff’s counsel argues that “the Request for Dismissal signed by [him] specifically states ‘Dismissal subject to court retaining jurisdiction to enforce terms of settlement pursuant to Code of Civil Procedure Section 664.6.’” (Ibid.) Plaintiff’s counsel asserts that “despite this language and [his] discussion with the clerk of Court on or about April 9, 2014, the action was dismissed without Court retaining jurisdiction to enforce the terms of the Settlement Agreement and the Stipulation.” (Ibid.) Plaintiff’s counsel notes that “it is important to state that [he] did not receive the January 9, 2020 Minute Order until February 27, 2020 when [he] obtained a copy from the Clerk of the Court.” (Ibid.) Plaintiff’s counsel explains that “this minute order was previously sent to our old address, despite the fact that the moving papers contained Vojdani Law Group, PC's updated address.” (Ibid.) The Court notes that the 1/9/2020 Minute Order was correctly sent to the address that Plaintiff counsel’s had on filed with the Court. In fact, it was not until May 5, 2020 – five months later – that Plaintiff’s counsel filed a Notice of Change of Address with this Court.
Plaintiff’s counsel argues that “granting this Motion would be in the interest of judicial economy and would be consistent with the intent of the attorney represented parties to the Settlement Agreement.” (Id. at ¶ 17.) Plaintiff’s counsel maintains that “there is no prejudice to Defendants, . . . it will prevent duplicate of filings for the same relief sought [and] it will save Defendants money since the Settlement Agreement and Stipulation contain attorney fee's provisions.” (Ibid.)
The Court finds that this motion brought pursuant to Code of Civil Procedure section 473(b) is not timely because dismissal was entered on April 9, 2014 and this motion was brought more than six months later on May 5, 2020.
Accordingly, the Court DENIES Plaintiff’s motion to vacate the dismissal under Code of Civil Procedure section 473(b).
Plaintiff also moves for relief pursuant to Code of Civil Procedure sections 473(d) and 664.6. The request for dismissal filed on April 9, 2014 does state that “dismissal [is] subject to Court retaining jurisdiction to enforce terms of [the] settlement pursuant to Code of Civil Procedure [section] 664.6.” (04/09/14 Request for Dismissal, ¶ 1(b)(6).) However, this request to retain jurisdiction is only signed by Plaintiff’s counsel and not the parties themselves. (04/09/14 Request for Dismissal; see Mesa RHF Partners, L.P., supra, 33 Cal.App.5th at p. 918.) Further the stipulation for entry of judgment, although signed by the parties, does not request that the Court retain jurisdiction under Code of Civil Procedure section 664.6. (Vojdani Decl., Ex. A, Stipulation for Entry of Judgment, pp. 6-7; see Mesa RHF Partners, L.P., supra, 33 Cal.App.5th at p. 918.) Moreover, the notice of settlement of the entire case states that the settlement is “unconditional” and does not mention that it conditioned on the Court retaining jurisdiction. (04/09/14 Notice of Settlement.)
Plaintiff has not demonstrated that there is a clerical mistake in the April 9, 2014 minute order dismissing the case pursuant to the Request for Dismissal and Notice of Settlement without retaining jurisdiction pursuant to Code of Civil Procedure section 664.6.
The Court DENIES Plaintiff’s motion to vacate the dismissal under Code of Civil Procedure sections 473(d) and 664.6.