Motion to Vacate Notice of Settlement
September 10, 2025 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________
02:00 PM LINE 4 21-CLJ-06713 WELLS FARGO BANK, N.A. VS. RAUL A FRANCIA
WELLS FARGO BANK, N.A. JON O. BLANDA RAUL A FRANCIA
Motion to Vacate Notice of Settlement
TENTATIVE RULING:
The unopposed Motion to Vacate Notice of Settlement brought by plaintiff Wells Fargo Bank, N.A., is GRANTED.
A.
Background
Plaintiff alleges that the parties entered into a credit card agreement on or about April 8, 2015 (Complaint, at p. 3, box BC-1, & exh. A), in connection with which plaintiff seeks $11,579.30 in damages, plus attorney’s fees according to proof and costs of suit. (Id., at p. 3, boxes BC-4 - BC-6.) Plaintiff asserts causes of action for breach of contract written and implied in fact (id., at pp.3-4), as well as money lent, money paid, laid out, and expended (id., at p. 5), an open book account, and an account stated. (Id., at p. 6.) Plaintiff alleges that defendant breached the agreement on or about March 18, 2021, by failing to make payments due.
Plaintiff seeks an Order vacating the Notice of Settlement filed on September 27, 2023, and returning the action to the court’s active docket. The Notice of Settlement is conditional, and contemplated the filing of a Notice of Dismissal by June 30, 2026.
B. The Motion Is Granted
The court has the power “[t]o amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128, subd. (a)(8).) The court is concerned that plaintiff would be prejudiced if it were unable to have its conditional Notice of Settlement vacated, since the uncontested evidence established by the Declaration of Edgar B. Lopez indicates that the conditions of settlement were not fulfilled. (Lopez Decl., ¶¶ 3-4.) It is therefore in the interests of justice to vacate the Notice of Settlement, so that the currently filed action may be resolved without unnecessary additional filings and delay.
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However, the court also has concerns as to the adequacy of notice to defendant. Defendant is unrepresented and has no address of record. The Proofs of Service filed on February 2, 2026, and May 18, 2026, declare that defendant was served by mail at the address at which substituted service upon someone who claimed not to know him was declared to have occurred on May 31, 2023. (Proof of Service of Summons, filed by a registered California process server on June 7, 2023, p.3.) The registered California process server of the Summons further declares that “Per the client, this is a verified mailing address[.]” (Ibid.) A different
September 10, 2025 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ registered California process server declared that he had attempted personal service but could not get into the property on December 3, 2022 (id., at p. 5), and that when he tried again on May 17, 2022, he noted that defendant was not in the directory, and that at the unit, another told him that he did not know defendant. (Id., at p. 6). If plaintiff intends to prosecute this action, it will need to demonstrate that it has effected proper service on defendant.
If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.