2017-00211121-CU-OE

Jana Rizza Mendoza vs. GB Commercial, LLC

Nature of Proceeding: Motion to Stay Dismissal

Filed By: Chang, Calvin

Plaintiff’s Motion to Stay Dismissal of the Case is unopposed but is denied as untimely.

Following the Parties’ entry into a settlement agreement, Plaintiff filed a Notice of Settlement on October 6, 2017. Despite the settlement agreement, Defendant has yet to pay the agreed-upon settlement amount. Presumably arising out of Defendants’ failure to comply with the terms of the settlement agreement, Plaintiff apparently has filed another lawsuit for breach of contract [the settlement].

In general, Rule of Court 3.1385(b) requires that any party seeking dismissal of a case must serve the dismissal within 45 days after settlement or, alternatively, the court must dismiss the entire case 45 days after it receives a notice of settlement.

Putting aside the inconsistency of the new suit for breach of the settlement agreement, Plaintiff now seeks to continue this matter to allow additional time to complete the settlement pursuant to California Rule of Court 3.1385. Rule 3.1385(e) states, in

relevant part as follows:

If a party who has served and filed a notice of settlement … determines that th case cannot be dismissed within the prescribed 45 days, that party must serve an file a notice and supporting declaration advising the court of that party’s inability t dismiss the case within the prescribed time, showing good cause for its inability t do so, and proposing an alternative date for dismissal.The notice and supporting declaration must be served and filed at least five court days before th time for requesting dismissal has elapsed. (emphasis added)

Here, Plaintiff served the Notice of Settlement on October 6, 2017. Exactly 45 calendar days later, Plaintiff filed and served the instant motion. As noted above, however, Rule 3.1385(e) explicitly states thatany request for a continuance, together with the supporting documentation required by the Rule,must be filed and servedfive court days beforethe 45-day time limit expires. Taking November court holidays into consideration, the last day for Plaintiff to file the instant motion and supporting documentation was November 16, 2017. Plaintiff’s motion therefore is untimely.

For the foregoing reasons, the motion is denied.