This case was last updated from Los Angeles County Superior Courts on 06/30/2019 at 03:10:08 (UTC).

NOBIA JOYCE VS SHAWN M. MILLNER

Case Summary

On 07/17/2015 NOBIA JOYCE filed a Property - Other Real Property lawsuit against SHAWN M MILLNER. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judge overseeing this case is OKI, DAN THOMAS. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7782

  • Filing Date:

    07/17/2015

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

OKI, DAN THOMAS

 

Party Details

Plaintiff

JOYCE NOBIA

Defendants and Cross Plaintiffs

MILLNER SHAWN M.

SHAWN M. MILLNER TRUSTEE

TODD LAURENCE

Trustee

SHAWN MARIE MILLNER REVOCABLE TRUST

Attorney/Law Firm Details

Plaintiff Attorney

GOLDEN STEPHEN R. OLD TOWN LAW OFFICE

 

Court Documents

Request for Dismissal

7/2/2018: Request for Dismissal

Unknown

7/5/2018: Unknown

Complaint

7/5/2018: Complaint

Trial Brief

7/5/2018: Trial Brief

Complaint

7/5/2018: Complaint

Complaint

7/5/2018: Complaint

Complaint

7/5/2018: Complaint

 

Docket Entries

  • 07/05/2018
  • at 08:30 AM in Department J; Jury Trial (Jury Trial; Order of Dismissal) -

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  • 07/05/2018
  • Stipulation; Filed by Nobia Joyce (Plaintiff)

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  • 07/05/2018
  • Stipulation Re: Settlement Conference

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  • 07/05/2018
  • Complaint

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  • 07/05/2018
  • Complaint

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  • 07/05/2018
  • Complaint

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  • 07/05/2018
  • Brief ; Filed by Plaintiff

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  • 07/05/2018
  • Brief ; Filed by Shawn M. Millner (Legacy Party)

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  • 07/05/2018
  • Statement of the Case; Filed by Shawn M. Millner (Legacy Party)

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  • 07/05/2018
  • Witness List; Filed by Shawn M. Millner (Legacy Party)

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85 More Docket Entries
  • 12/02/2015
  • at 08:30 AM in Department J; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (Demurrer/Strike; Demurrer overruled) -

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  • 12/02/2015
  • First Amended Complaint

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  • 11/30/2015
  • Notice; Filed by Nobia Joyce (Plaintiff)

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  • 08/26/2015
  • Demurrer; Filed by Shawn M. Millner (Legacy Party); Laurence Todd (Legacy Party)

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  • 08/26/2015
  • Request for Judicial Notice; Filed by Shawn M. Millner (Legacy Party); Laurence Todd (Legacy Party)

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  • 08/26/2015
  • Motion to Strike; Filed by Shawn M. Millner (Legacy Party); Laurence Todd (Legacy Party)

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  • 08/26/2015
  • Points and Authorities; Filed by Shawn M. Millner (Legacy Party); Laurence Todd (Legacy Party)

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  • 08/25/2015
  • Rtn of Service of Summons & Compl; Filed by Nobia Joyce (Plaintiff)

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  • 07/21/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 07/17/2015
  • Complaint; Filed by Nobia Joyce (Plaintiff)

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Tentative Rulings

Case Number: KC067782    Hearing Date: October 09, 2020    Dept: J

HEARING DATE: Friday, October 9, 2020

NOTICE: OK[1]

RE: Joyce v. Millner, et al. (KC067782)

______________________________________________________________________________

Defendants Shawn M. Millner’s and Laurence Todd’s MOTION FOR RECONSIDERATION RE: NUNC PRO TUNC ORDER DATED 02/03/20

Responding Party: Plaintiff, Nobia Joyce

Tentative Ruling

Defendants Shawn M. Millner’s and Laurence Todd’s Motion for Reconsideration Re: Nunc Pro Tunc Order Dated 02/03/20 is DENIED.

 

Background

This is a partition action filed by Plaintiff Nobia Joyce (“Joyce”) against her daughter Shawn M. Millner, individually and as trustee for the Shawn Marie Millner Revocable Trust, and her daughter’s boyfriend, Laurence Todd (“Todd”). Joyce alleges that she purchased the subject property with her daughter in March 21, 1996 and that she owns 50% of the subject property, but that defendants have been attempting to remove her from the subject property.

The complaint, filed July 17, 2015, asserts causes of action against Defendants for:

  1. Partition (CCP §§ 872.210, 872.230, 872.820)

  2. Accounting

  3. Conversion

  4. Elder Abuse

  5. Intentional Infliction of Emotional Distress

  6. Negligent Infliction of Emotional Distress

On December 2, 2015, the court granted defendants’ motion to strike out Joyce’s 4th-6th causes of action. On December 8, 2015, Defendants Shawn M. Millner (in her individual capacity only) and Todd filed a cross-complaint against Joyce. The First Amended Cross-Complaint (“FACC”), filed on December 9, 2015, asserts causes of action for:

  1. Invasion of Privacy—Intrusion into Seclusion

  2. Invasion of Privacy—Penal Code §§ 632 & 637.2

On July 2, 2018, Plaintiff dismissed the second and third causes of action, without prejudice. On July 5, 2018, a “Stipulation Re: Settlement” was filed; that day, the court ordered the action “dismissed with prejudice pursuant to CCP Section 664.6, with the court to retain jurisdiction to enforce the settlement.”

On February 3, 2020, the court issued a nunc pro tunc order, wherein the July 5, 2018 minute order was corrected to reflect a dismissal without prejudice.

Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup. Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

Discussion

Defendants Shawn M. Millner (in her individual capacity only) (“Millner”) and Todd move the court, per CCP § 1008(a), for an order sustaining their motion for reconsideration to the nunc pro tunc order dated February 3, 2020.

On July 5, 2018, a “Stipulation Re: Settlement” was filed; the settlement provided, inter alia, that “[a]ll parties will dismiss all claims without prejudice.” On July 5, 2018, the court ordered the action dismissed “with prejudice pursuant to CCP Section 664.6, with the court to retain jurisdiction to enforce the settlement.” On February 3, 2020, the court issued a nunc pro tunc order, striking out the aforementioned language and substituting same with an order of dismissal “without prejudice pursuant to CCP Section 664.6, with the court to retain jurisdiction to enforce the settlement.”

At the outset, the court notes that the motion was originally filed on February 13, 2020. On April 1, 2020, Millner and Todd filed a “Joint Supplemental Brief” in support of the motion, concurrently with a Request for Judicial Notice. The court declines to entertain Millner’s and Todd’s April 1, 2020 filing. The court will not entertain “piecemeal” filings.

The motion is denied. The motion reflects non-compliance with Code of Civil Procedure § 1008(a), as it is not accompanied by the requisite affidavit and fails to state what “new or different facts, circumstances, or law” exist. It would appear, furthermore, that the cited Code provision is inapplicable to the circumstances at hand, inasmuch as no “application for an order” was made.

There is no time limit on the court’s inherent authority to correct orders nunc pro tunc and the court is under no obligation to provide notice of same. (People v. Flores (1960) 177 Cal.App.2d 610, 613 [i.e., “Independently of statute and on its own motion or on ex parte applications without notice, and regardless of time elapsed, the court may exercise its power to correct clerical errors”].)


[1] The motion was filed and mail-served on February 13, 2020 and originally set for hearing on June 11, 2020. On April 27, 2020, the court, on its own motion, continued the June 11, 2020 hearing to September 28, 2020 at 10:00 a.m.; notice was provided to Plaintiff’s counsel and to Millner and Todd (both self-represented). On July 1, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the September 28, 2020 hearing to October 9, 2002 at 10:00 a.m.; notice was provided to Plaintiff’s counsel and to Millner and Todd.

Case Number: KC067782    Hearing Date: September 21, 2020    Dept: J

HEARING DATE: Monday, September 21, 2020

NOTICE: See below[1]

RE: Joyce v. Millner, et al. (KC067782)

______________________________________________________________________________

Defendants Shawn M. Millner’s and Laurence Todd’s MOTION TO ENFORCE SETTLEMENT AGREEMENT

Responding Party: Plaintiff, Nobia Joyce.

Tentative Ruling

Defendants Shawn M. Millner’s and Laurence Todd’s Motion to Enforce Settlement Agreement is DENIED.

 

Background

This is a partition action filed by Plaintiff Nobia Joyce (“Joyce”) against her daughter Shawn M. Millner, individually and as trustee for the Shawn Marie Millner Revocable Trust, and her daughter’s boyfriend, Laurence Todd (“Todd”) (collectively, “Defendants”). Joyce alleges that she purchased the subject property with her daughter in March 21, 1996 and that she owns 50% of the subject property, but that defendants have been attempting to remove her from the subject property.

The complaint, filed July 17, 2015, asserts causes of action against Defendants for:

  1. Partition (CCP §§ 872.210, 872.230, 872.820)

  2. Accounting

  3. Conversion

  4. Elder Abuse

  5. Intentional Infliction of Emotional Distress

  6. Negligent Infliction of Emotional Distress

On December 2, 2015, the court granted Defendants’ motion to strike out Joyce’s 4th-6th causes of action. On December 8, 2015, Shawn M. Millner (in her individual capacity only) and Todd filed a cross-complaint against Joyce. The First Amended Cross-Complaint (“FACC”), filed on December 9, 2015, asserts causes of action for:

  1. Invasion of Privacy—Intrusion into Seclusion

  2. Invasion of Privacy—Penal Code §§ 632 & 637.2

On July 2, 2018, Plaintiff dismissed the second and third causes of action, without prejudice. On July 5, 2018, a “Stipulation Re: Settlement” was filed; that day, the court ordered the action “dismissed with prejudice pursuant to CCP Section 664.6, with the court to retain jurisdiction to enforce the settlement.”

On February 3, 2020, the court issued a nunc pro tunc order, wherein the July 5, 2018 minute order was corrected to reflect a dismissal without prejudice.

Legal Standard

“If parties to pending litigation stipulate, in a writing signed by the parties outside 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 requested by the parties,

the court may retain jurisdiction over the parties to enforce the settlement until performance in

full of the terms of the settlement.” (CCP § 664.6.)

Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793, 810.) In order to be enforceable pursuant to the summary procedures of section 664.6, a settlement agreement must either be entered into orally before a court or must be in writing and signed by the parties. (Id.)

Discussion

Defendants move the court for an order enforcing the terms of the settlement agreement between the parties pursuant to CCP § 664.6.

Request for Judicial Notice

The court declines to rule on Defendants’ Request for Judicial Notice as irrelevant.

Analysis

The motion is denied. Defendants essentially request that the court dismiss this action with prejudice.[2] The parties’ July 5, 2018 “Stipulation Re Settlement” (“Agreement”) expressly states that “[a]ll parties will dismiss all claims without prejudice.” (Agreement, ¶1 [emphasis added].) Paragraph 6 of the Agreement, moreover, states that “[t]he parties agree the Court may dismiss the case without prejudice. The Court is requested to retain jurisdiction and this settlement may be enforced pursuant to California Code of Civil Procedure section 664.6” (emphasis added.) Defendants have not provided the court with any legal authority supporting their position that the court may dismiss the action with prejudice when the parties’ Agreement expressly states that the dismissal is without prejudice.


[1] The motion was filed and mail-served on August 24, 2020, for a September 21, 2020 hearing date; September 7, 2020 was a court holiday and is excluded from the notice calculation. (Code Civ. Proc., § 12(b).) Although the motion was timely filed, moving parties did not give an additional five court days’ notice for mailing, as per Code of Civil Procedure § 1005(b) (i.e., “all moving and supporting papers shall be served and filed at least 16 court days before the hearing . . . if the notice if served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of

California . . .”) However, Plaintiff timely filed an opposition on the merits on September 8, 2020. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) The court, then, will disregard any notice deficiencies and entertain the merits of the motion.

[2] The court declines to entertain Defendants’ request for relief in ¶2 of their reply brief to the extent it seeks to enlarge the relief sought in the moving papers. Defendants, in their moving papers, did not seek “[a] determination by this Court that Plaintiff breached the agreement,” “[a] determination by this Court that Defendants, Defendant Shawn M. Millner in particular, performed under the terms of the agreement,” “[a] determination by this Court that Plaintiff must provide Defendants a full and final release as agreed to under the terms of the agreement” or “[a] determination from this court that Defendants are entitled to damages resulting from Plaintiff’s breach;” rather, Defendants “request[ed] an order from the Court wherein the matter is dismissed with prejudice under the terms of the settlement agreement.” (Motion, ¶24; see also, ¶4.)