On 01/27/2017 SABRO FOSTER filed a Personal Injury - Other Personal Injury lawsuit against CONSTRUCTION GUARANTEED INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Dismissed.
Disposed - Dismissed
CONSTRUCTION GUARANTEED INC
CONSTRUCTION GUARANTEED INC.
BETTY RONALD W
Court documents are not available for this case.
at 08:30 AM in Department 31; Order to Show Cause Re: Dismissal (Settlement) - HeldRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by ClerkRead MoreRead Less
at 09:00 AM in Department 31; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 08:30 AM in Department 31; Final Status Conference - HeldRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Notice of Settlement (of Entire Case); Filed by Sabro Foster (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 31; Post-Mediation Status Conference - Held - ContinuedRead MoreRead Less
Certificate of Mailing for (Minute Order (Post-Mediation Status Conference) of 10/18/2018); Filed by ClerkRead MoreRead Less
Minute Order ( (Post-Mediation Status Conference)); Filed by ClerkRead MoreRead Less
at 09:00 AM in Department 31; Jury Trial (Jury Trial; Continued by Court) -Read MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Sabro Foster (Plaintiff)Read MoreRead Less
VERIFIED COMPLAINT FOR: 1. BREACH OF CONTRACT [ORAL];ETCRead MoreRead Less
Case Number: BC648328 Hearing Date: July 12, 2021 Dept: 31
PLAINTIFF'S MOTION TO SET ASIDE DISMISSAL IS DENIED.Background\r\n\r\n
On January 27, 2017,\r\nPlaintiff Sabro Foster filed the instant action against Defendants Construction\r\nGuaranteed, Inc., Richard Hopkins, and Does 1 through 40. The verified Complaint asserts causes of\r\naction for:\r\n\r\n
(1) Breach of Contract (Oral);\r\n\r\n
(2) Breach of Contract\r\n(Written);\r\n\r\n
(3) Breach of the Implied\r\nCovenant of Good Faith and Fair Dealing;\r\n\r\n
(4) Negligence; and\r\n\r\n
(5) Fraud (Misrepresentation).\r\n\r\n
On November 8, 2018,\r\nPlaintiff filed a Notice of Settlement.\r\n\r\n
On December 13, 2018, the\r\nCourt held an Order to Show Cause Re: Dismissal (Settlement) hearing to inquire\r\nabout the status of the settlement between the parties. After conferring with counsel, the Court\r\ndismissed Plaintiff’s Complaint without prejudice.\r\n\r\n
Plaintiff now seeks to set\r\naside the dismissal entered by the Court on December 13, 2018, pursuant to Code\r\nof Civil Procedure § 473(b).\r\n\r\n
The Court has broad\r\ndiscretion to set aside the entry of default, default judgment, or a dismissal,\r\nbut that discretion can be exercised only if the defendant establishes a proper\r\nground for relief, by the proper procedure and within the set time limits.\r\n\r\n
Code of Civil Procedure\r\nsection 473(b) provides, in relevant part:\r\n\r\n
The court may, upon any terms as may be just,\r\nrelieve a party or his or her legal representative from a judgment, dismissal,\r\norder, or other proceeding taken against him or her through his or her mistake,\r\ninadvertence, surprise, or excusable neglect. Application for this relief shall\r\nbe accompanied by a copy of the answer or other pleading proposed to be filed\r\ntherein, otherwise the application shall not be granted, and shall be made\r\nwithin a reasonable time, in no case exceeding six months, after the\r\njudgment, dismissal, order, or proceeding was taken. . . . Notwithstanding\r\nany other requirements of this section, the court shall, whenever an\r\napplication for relief is made no more than six months after entry of\r\njudgment, is in proper form, and is accompanied by an attorney’s sworn\r\naffidavit attesting to his or her mistake, inadvertence, surprise, or neglect,\r\nvacate any (1) resulting default entered by the clerk against his or her\r\nclient, and which will result in entry of a default judgment, or (2) resulting\r\ndefault judgment or dismissal entered against his or her client, unless the\r\ncourt finds that the default or dismissal was not in fact caused by the\r\nattorney’s mistake, inadvertence, surprise, or neglect.”\r\n\r\n
“A party seeking relief\r\nunder section 473(b) must file the motion within a reasonable time but not\r\nlonger than six months after the judgment or dismissal has been entered. This\r\nsix-month time limitation is jurisdictional; the court has no power to grant\r\nrelief under section 473 once the time has lapsed. [Citations.]” (Austin v.\r\nLos Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.) Six months is defined as half a year, or 182\r\ndays, for the purposes of this section. (Davis v. Thayer (1980) 113\r\nCal.App.3d 892, 901-04.)\r\n\r\n
Plaintiff seeks to set\r\naside the Court’s December 13, 2018 Order dismissing Plaintiff’s\r\nComplaint. Plaintiff states that the\r\nCourt dismissed the Complaint without retaining jurisdiction to enforce the\r\nsubject Settlement Agreement pursuant to Code of Civil Procedure § 664.6. Plaintiff argues that the dismissal of this\r\nmatter without seeking to have the Court retain jurisdiction was a mistake on\r\nthe part of Plaintiff’s counsel. (Betty\r\nDecl., ¶ 9.) Defendants have not filed\r\nan Opposition to Plaintiff’s Motion.\r\n\r\n
The Court finds that\r\nPlaintiff’s Motion to Set Aside Dismissal under Code of Civil Procedure §\r\n473(b) is untimely. As expressly\r\nprovided by statute, Section 473(b) mandates that a motion for relief must be\r\nbrought “within a reasonable time, in no case exceeding six months,\r\nafter the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b), italics\r\nadded.) This six-month time limitation\r\nis jurisdictional, and the Court has no power to grant relief under Section 473\r\nonce this time period has lapsed. (Austin,\r\nsupra, 244 Cal.App.4th at p. 928.) Here, the Order dismissing Plaintiff’s\r\nComplaint without prejudice was issued on December 13, 2018. Accordingly, Plaintiff was required to seek\r\nrelief no later than June 13, 2019. However, Plaintiff makes his motion nearly two\r\n(2) years late, on May 4, 2021. \r\nTherefore, the Court finds that the six-month time limit has passed, and\r\nthe Court is without power to grant relief.\r\n\r\n
Based on the foregoing,\r\nPlaintiff’s Motion to Set Aside Dismissal under Code of Civil Procedure § 473(b)\r\nis DENIED without prejudice to Plaintiff filing a motion under other legal or\r\nequitable grounds.\r\n\r\n
Plaintiff’s Motion to Set\r\nAside Dismissal under Code of Civil Procedure § 473(b) is DENIED without prejudice\r\nto Plaintiff filing a motion under other legal or equitable grounds.\r\n\r\n
Case Number: BC648328 Hearing Date: April 28, 2021 Dept: 31
PLAINTIFF'S MOTION FOR STIPULATED JUDGMENT IS DENIED.Background
On January 27, 2017, Plaintiff Sabro Foster filed the instant action against Defendants Construction Guaranteed Inc.; Richard Hopkins; and Does 1 through 40. The verified Complaint asserts causes of action for:
(1) Breach of Contract (Oral);
(2) Breach of Contract (Written);
(3) Breach of the Implied Covenant of Good Faith and Fair Dealing;
(4) Negligence; and
(5) Fraud (Misrepresentation).
On December 13, 2018, the Court ordered the Complaint dismissed without prejudice.
Plaintiff now seeks an order entering a stipulated judgment pursuant to Code of Civil Procedure section 664.6 and a Settlement Agreement entered into by the parties.
Code of Civil Procedure section 664.6 provides:
If the 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.
“Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1165-66 [quoting Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809-10].)
Plaintiff seeks an order entering a stipulated judgment pursuant to Code of Civil Procedure section 664.6 and a Settlement Agreement entered into by the parties.
““[D]ismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.” [Citation.] “If requested by the parties,” however, “the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement.” [Citation.] “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” [Citation.]” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.)
“A request for the trial court to retain jurisdiction under section 664.6 “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the 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.” [Citation.] The “request must be express, not implied from other language, and it must be clear and unambiguous.” [Citation.]” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.)
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 CCP § 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.)
Plaintiff argues that the Court has the power to enter judgment pursuant to the parties’ Settlement Agreement because the instant action was never dismissed and the Court therefore has jurisdiction.
Plaintiff’s assertion that this matter is still pending is incorrect. On December 13, 2018, following an Order to Show Cause re: Dismissal (Settlement), the Court dismissed this action without prejudice. The Minute Order specifically states:
Court and counsel confer regarding the status of the settlement. Counsel advises the court that they are waiting for the settlement check to arrive.
After conferring with counsel the Court feels there is no reason to not dismiss the case today and counsel agrees with the court.
The Court orders the Complaint filed by SABRO FOSTER on 01/27/2017 dismissed without prejudice.
Plaintiff to give notice.
The Minute Order further indicates that Ronald W Betty appeared via telephone on behalf of Plaintiff.
The Minute Order fails to indicate that the Court retained jurisdiction pursuant to Code of Civil Procedure section 664.46 nor does Plaintiff contend that the parties requested that the Court do so. Absent evidence that the Court retained jurisdiction pursuant to Section 664.6 or that such a request was made during the pendency of the case by the parties themselves either in a writing signed by the parties or orally before the Court, the Court has no jurisdiction to enter the stipulated judgment as requested. Plaintiff would have to file a motion to set aside the dismissal which, if granted, would allow the Court to regain jurisdiction.
Based on the foregoing, Plaintiff’s motion for stipulated judgment is DENIED.
Plaintiff’s motion for stipulated judgment is DENIED.
Plaintiff is to give notice.
The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.
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