Tentative Rulings

Case Number: EC067947    Hearing Date: February 28, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A. Allegations

Plaintiff Diva Limousine, Ltd. (“Diva”) commenced this action on January 30, 2018, alleging causes of action for: (1) intentional interference with economic relationship; and (2) preliminary and permanent injunction. Diva alleges that it provides transportation services to both individuals and businesses throughout the United States. It alleges that during peak travel seasons, it utilizes the services of its Affiliate Business Partners in its “Affiliate Program.” Diva alleges that Defendant Anusha Van Hartutyunan aka Andy Hartutyunyan (“Hartutyunyan”), on behalf of Defendant Pearl Limousine Services, LLC (“Pearl”), submitted an application to become one of Diva’s Affiliate Business Partners. Diva alleges it retained Pearl’s services in 2015 to 2017, but in late-2017, a disagreement arose. Diva alleges that Hartutyunyan demanded payment for what he claimed were unpaid invoices and that he contacted Diva’s customers to discredit and disrupt Diva’s business.

Pearl filed the Second Amended Cross-Complaint (“SACC”) against Diva on September 13, 2018 for: (1) breach of contract; and (2) common counts. Pearl alleges that the parties entered into a written Affiliate Application and that, pursuant to the terms, Diva promised to pay all invoices submitted by Pearl. Pearl alleges that in January 2018, Diva failed to pay on the submitted invoices from August to December 2017. Thus, Pearl alleges total damages in an amount exceeding $85,000.00.

B. Relevant Background and Motion on Calendar

On July 23, 2019, defense counsel represented to the Court that the case had settled.

On September 25, 2019, the Court noted that no appearances had been made by Plaintiff or Defendants. Taking into consideration the parties’ failure to appear and their representations that the case had settled, the Court ordered the complaint filed by Plaintiff Diva on January 30, 2018 to be dismissed without prejudice.

On December 6, 2019, Pearl filed a proposed Judgment by Court on Stipulation, pursuant to a CCP §664.6 request that the Court retain jurisdiction of the matter. That same day, a Stipulation for Civil Judgment was filed such that judgment would be entered in favor of Cross-Complainant Pearl against Diva in the amount of $85,000, and that Diva would take nothing against Defendants by way of the complaint. Neither of these documents are signed by the Court.

On January 14, 2020, Pearl filed a motion to vacate the dismissal for the limited purpose of filing a stipulation for entry of judgment and judgment.

The Court is not in receipt of an opposition brief.

DISCUSSION

Pearl moves pursuant to CCP §473(b) to vacate the dismissal entered in this action for the limited purpose to allow the filing of a stipulation for entry of judgment and judgment.

In support of the motion, Pearl provides the declaration of its counsel, Steven A. Wolvek. Mr. Wolvek states that he appeared at the July 23, 2019 final status conference to advise the Court that the matter had been settled and a settlement agreement was being prepared. (Wolvek Decl., ¶2.) The Court then set an OSC re Dismissal on September 25, 2019. (Id.) Confusingly, Mr. Wolvek states that he had a family law case on that same day so he was unaware of when the Court set the OSC hearing date. (Id., ¶3.) It is unclear if Mr. Wolvek meant the family law hearing was on July 23, 2019 (FSC) or September 25, 2019 (OSC). Regardless, it appears that he knew of the OSC re Dismissal date because he was present at the July 23, 2019 FSC.

Mr. Wolvek then states that the parties eventually drafted and entered into a settlement agreement, but Diva breached the agreement. (Id., ¶¶4-5, Ex. A.) He states that after Diva failed to cure the breach, he prepared a judgment in this case and sent a copy to the appearance attorney who would attend the OSC on his behalf. (Id., ¶6.) He states that it was his intention that the appearance attorney request a 30-day continuance of the OSC so that he could file a judgment to conclude the case. (Id.) Mr. Wolvek later discovered that the appearance attorney had failed to appear at the OSC and this case was subsequently dismissed. (Id.)

While the declaration is somewhat confusingly written, it appears that Mr. Wolvek intended to appear through an appearance counsel to the September 25, 2019 OSC re Dismissal hearing, but the appearance counsel failed to attend the hearing, which resulted in the dismissal being entered in this case. Pearl seeks to set aside the dismissal for the limited purpose of filing a Stipulation for Civil Judgment. The Court finds that there is substantive merit to granting this motion based on attorney fault and the timeliness of the request.

Thus, the Court will set aside the dismissal.

CONCLUSION AND ORDER

The Court grants the motion to vacate the dismissal entered on September 25, 2019.

A Case Management Conference is set on March 26, 2020, at 8:30 a.m. in this department.

Pearl shall provide notice of this order.