Motion for Order Vacating Dismissal of October 7, 2025, and Entering Dismissal Pursuant to CCP § 664.6
The Court is considering whether to continue this hearing so that Plaintiff’s counsel can file a revised declaration but will hear first from counsel at the hearing as to the status of service on the plaintiff.
2. 2023-1365581 Morales vs. Attorneys Brian Stewart’s and Louis Chao’s motions to be relieved RCR as counsel for Defendants Mari Drewry and Devoted Insurance Construction Company, LLC are granted. Services Upon the signing of the order, counsel shall serve said order on all parties, including Defendants. Brian Stewart’s and Louis Chao’s will be relieved as counsel of record for Defendants effective upon the filing of the proof of service of the signed order upon the clients and other parties.
The Court sets an OSC re: status of counsel for Devoted Insurance Company, LLC for June 11, 2026, at 9AM, in Department N18 as it is a corporation and cannot represent itself.
Counsel shall give notice of the ruling.
3. 2024-1443488 Employers Plaintiff Employers Assurance Company’s Motion for Order Assurance Vacating Dismissal of October 7, 2025, and Entering Dismissal Company vs. Pursuant to CCP § 664.6, is granted. Absolute Facility Plaintiff moves, under CCP sections 473(b) and 664.6, for an order Solutions Inc. vacating the dismissal without prejudice (ROA 19) and entering a dismissal under 664.6, whereby the court retains jurisdiction to enforce the parties’ settlement agreement. Plaintiff contends the parties entered into a settlement agreement on or about 8/19/25, and that the agreement includes a provision under CCP section 664.6 for the court to retain jurisdiction to enforce the settlement. (ROA 22, Exh.
B at p. 2.) However, through Plaintiff’s counsel’s mistake, inadvertence, surprise, or neglect, this case was dismissed without prejudice on 10/7/25. Plaintiff’s counsel attests that he failed to appear on 10/7/25, because he “mistakenly believed that [he] had taken care of everything after [he] appeared before this Court at a prior hearing.” (Aires Decl. at ¶ 5.) Plaintiff’s counsel further attests that he has “redoubled [his] attention to calendaring” and “instructed [his] calendar staff to send text alerts so [they] do not have a similar event in the future.” (Aires Decl. at ¶ 6.)
Legal Standard
CCP section 473(b) provides for relief that is “mandatory” or relief that is “discretionary.” Where, as here, the motion is timely and is “accompanied by an attorney’s sworn affidavit attesting to his or her
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mistake, inadvertence, surprise, or neglect,” relief is being sought under the “mandatory” provision. (Code Civ. Proc., § 473, subd. (b).) This provision requires the court to grant relief, “even if the [attorney’s] neglect was inexcusable.” (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487, emphasis in original.) Relief may be denied only “when the court finds that the default was not in fact the attorney’s fault, for example when the attorney is simply covering-up for the client.” (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821.) The deadline to bring the motion is, “no more than six months after entry of judgment.” If the motion is timely and relief is granted based on an attorney’s affidavit of fault, the court “shall” vacate any “resulting default,” “default judgment,” or “dismissal.” (Code Civ. Proc., § 473, subd. (b).)
Here, the motion is timely made (on 12/10/25), well under “six months” of the dismissal entered on 10/7/25. The motion is also supported by a declaration from Plaintiff’s counsel of record, Timothy Aires, whereby Mr. Aires explains he is at fault for allowing the dismissal that occurred on 10/7/25. Plaintiff also submits proof that the parties had entered into a settlement in August 2025, and that the agreement includes a provision under section 664.6, whereby the court retains jurisdiction to enforce the terms of the settlement. (ROA 22, [Exh. B].) The Court finds relief is warranted, because Plaintiff has shown the dismissal was entered as a result of its counsel’s “mistake, inadvertence, surprise or neglect.”
Next, CCP section 664.6, subdivision (a), provides, in relevant part, that: “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.” Here, Plaintiff has proffered evidence that the parties entered into a written settlement, which provides for the court to retain jurisdiction under 664.6. Specifically, paragraph (f.) provides, in relevant part, that “the Court shall expressly retain jurisdiction over the Parties to, and the subject matter of, the Action to enforce the terms and conditions of this Agreement, including, without limitation, the power to set aside any dismissal and order entry of the Judgment as heretofore provided.” (ROA 22 [Exh. B at p. 2].)
The Court grants the motion and order the Clerk to set aside the dismissal entered on 10/7/25 (ROA 19), and to dismiss this action without prejudice and with the court retaining jurisdiction under CCP § 664.6.
Plaintiff shall give notice of the ruling.