Case Number: BC425837 Hearing Date: May 05, 2014 Dept: 34

Moving Party: Defendant Mercedes-Benz USA, LLC (“MBUSA”)

Resp. Party: None

Defendant MBUSA’s unopposed motion is GRANTED. The dismissal entered on 9/17/13 is converted to a dismissal with prejudiced.

PRELIMINARY COMMENTS:

This motion is unopposed. Defendant MBUSA has apparently attempted to reach plaintiffs counsel on several occasions in order to enter into a stipulation that would have obviated the need for this motion. Plaintiff’s counsel was unresponsive. This concerns the court. If plaintiff’s counsel opposed this motion, he should have filed an opposition. If plaintiff’s counsel did not oppose this motion, he should have agreed to stipulate with MBUSA to avoid the need for additional attorney’s fees on behalf of of defendant, and to avoid the need for extra work on behalf of the court. Plaintiff’s counsel did neither.

Had defendant MBUSA requested sanctions against plaintiff’s counsel, the court would have been inclined to have imposed them.

BACKGROUND:

Plaintiff commenced this action on 11/12/09 against defendants for violations of the Song-Beverly Consumer Warranty Act, specifically: (1) breach of express warranty; (2) breach of implied warranty; and (3) violation of the Consumers Legal Remedies Act.

Plaintiff filed a Notice of Settlement of the action on 9/5/12. Plaintiff dismissed defendant Calstar Motors, Inc., on 10/22/12.

Plaintiff filed a motion to enforce the settlement agreement against defendant Mercedes-Benz USA, LLC (“MBUSA”) on 12/4/12. The motion was set for hearing on 1/16/13. After the Court took the matter under submission, it issued an order on 4/8/13. The Court noted that MBUSA had insisted on adding provisions not found in the settlement agreement. The Court found that the agreement was enforceable on its terms, and ordered MBUSA to pay plaintiff $30,000.00.

On 9/7/13, plaintiff dismissed the action without prejudice.

ANALYSIS:

MBUSA seeks an order nunc pro tunc converting the dismissal without prejudice to a dismissal with prejudice.

Under Code of Civil Procedure 473(d), the court may correct clerical mistakes in its judgments or orders, so as to conform to the judgment or order directed. “The term ‘clerical error’ covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.” (Makovsky v. Makovsky (1958) 158 Cal.App.2d 738, 743.) Where a “trial court intended to enter judgment pursuant to [a] settlement agreement, to the extent the judgment failed to conform to the terms of the settlement agreement, the trial court retained the inherent power to correct the judgment nunc pro tunc … after entry of the judgment.” (Ames v. Paley (2001) 89 Cal.App.4th 668, 674.)

The Court previously determined that the settlement agreement was enforceable on its terms. (See Order, 4/8/13.) The terms of the settlement agreement provide that plaintiff is to dismiss the action with prejudice and release the defendants from any and all liability. (Def. Exh. A, p. 1.) MBUSA provides evidence that it sent plaintiff a check for $30,000.00 and plaintiff’s counsel received and endorsed the check. (See Matrosova Decl., ¶ 4, Exh. C.) After the OSC re dismissal was continued several times, plaintiff eventually filed a request for dismissal without prejudice, which was signed and entered by the clerk on 9/17/13. MBUSA attempted to stipulate to change the dismissal without prejudice to dismissal with prejudice, but plaintiff’s counsel was not responsive. (See id., ¶ 14, Exh. E.) Plaintiff has not filed an opposition to the instant motion.

Because the dismissal failed to conform to the terms of the settlement agreement, the Court has the power to correct the dismissal nunc pro tunc. Accordingly, MBUSA’s motion is GRANTED. The dismissal entered on 9/17/13 is converted to a dismissal with prejudiced.