8. BC626405

AMTRANIK KEVORDIAN v LISA ANN HASTINGS

Motion to Set Aside or Vacate Dismissal

This case arises from the Plaintiff’s claim that he suffered personal injuries when the Defendant attacked him with pepper spray. The Defendant, Lisa Hastings, filed a Cross-Complaint to allege that the Plaintiff, Antranik Kevorkian, has committed trespass onto her property and vandalized her property as part of a campaign to harass the Defendant and to cause her emotional distress. Further, the Defendant alleges that the Plaintiff blocks her driveway, stares at her in an intimidating manner, uses profanity, stalks her, and harasses her workers and contractors.

No trial is set. On August 3, 2017, the Plaintiff filed a dismissal of the case with prejudice.

This hearing concerns the Plaintiff’s motion to set aside his own voluntary dismissal of the case. Under CCP section 473(b), the Court may set aside a dismissal entered through the mistake, inadvertence, surprise, or excusable neglect of a party. The Defendant is seeking discretionary relief under section 473(b) and although the law favors trying all cases and controversies upon their merits, this does not relieve Courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal. App. 2d 275, 282.

The Plaintiff offers facts in his declaration to demonstrate that he dismissed the action with prejudice based on a settlement agreement. The Plaintiff states that after monetary sanctions were imposed on him, he was surprised when his van was towed away and that he entered into the settlement and dismissed this action because he wanted to recover his van.

A review of the Court file reveals that the Court imposed discovery sanctions in the form of monetary sanctions on the Plaintiff on March 3, 2017 under CCP section 2025.450 because the Plaintiff had failed to comply with discovery. Under California law, orders that impose monetary sanctions are enforced through the execution of judgment laws. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615. Orders imposing monetary sanctions have the force and effect of a money judgment, and are immediately enforceable through execution. Id.

The Defendant’s attorney, Guy Jamison, states in paragraph 5 of his declaration, which accompanies the opposition papers, that he enforced the order imposing monetary sanctions by obtaining a writ of execution and then instructing the Sheriff to levy on the Plaintiff’s motor vehicles in order to satisfy the unpaid sanctions award. Mr. Jamison states facts in paragraphs 7 to 10 that demonstrate that after the Sheriffs took possession of the Plaintiff’s automobile, the Plaintiff offered to dismiss his action in return for the Defendant waiving her right to collect

the unpaid sanctions. A copy of the settlement agreement is attached in untabbed exhibit D to the opposition papers. As a result, the evidence in the papers of the Plaintiff and the Defendant demonstrates that 1) the Plaintiff’s vehicle was towed as a result of his misuse of discovery and his failure to pay the Court-ordered monetary sanctions and that 2) the Plaintiff entered into a settlement agreement in which he agreed to dismiss the action in return for the Defendant waiving her right to collect the unpaid monetary sanction.

This evidence demonstrates that there was no actual “surprise” to the Plaintiff because his van was towed as the result of the Plaintiff’s failure to pay the Court-ordered monetary sanctions. It is not reasonable for a party to be surprised by the enforcement of a Court order or judgment that the party failed to obey.

Further, there is no evidence that the Plaintiff voluntarily dismissed the case due to mistake, inadvertence, or excusable neglect. Instead, the Plaintiff entered into a settlement agreement in which he agreed to dismiss the action in return for the Defendant waiving her right to collect the unpaid monetary sanctions. The Plaintiff offers no facts to demonstrate that he mistakenly, inadvertently, or neglectfully dismissed the action. On the contrary, the Plaintiff voluntarily dismissed the action as part of a settlement agreement that he admits he entered in order to recover his motor vehicle, i.e., he dismissed the case in return for the Defendant waiving her right to levy his motor vehicle to recover the unpaid monetary sanctions.

Therefore, the Court denies the Plaintiff’s motion for relief from his voluntary dismissal of the action because the Plaintiff has not demonstrated that he voluntarily dismissed the action due to any surprise, mistake, inadvertence, or excusable neglect.

Finally, the Defendant requests that the Court order the Plaintiff to pay attorney’s fees because the Defendant incurred attorney’s fees to defend the settlement agreement. Under paragraph 14 of the settlement agreement, a copy of which is attached as untabbed exhibit D to the opposition papers, the parties agreed that the prevailing party on any action to enforce or prevent the breach of the settlement agreement may recover all costs, expenses, and attorneys’ fees incurred.

Here, the Plaintiff filed a motion to obtain leave to breach the agreement by setting aside his performance, i.e., his dismissal. The Defendant had to incur attorney’s fees and costs to defend the settlement agreement and prevent the Plaintiff from obtaining a Court order that would have allowed the Plaintiff to void the performance of his obligation, i.e., to breach the agreement. As a result, the Defendant may recover monetary sanctions under section 14 of the settlement agreement.

The Defendant’s attorney, Guy Jamison, states in paragraph 12 that he expects to bill 4.5 hours at $350 per hour to oppose this motion. The amount requested of $1,575 is a reasonable amount of attorney’s fees to compensate the Defendant for the attorney’s fees she incurred to defend the settlement agreement and to prevent a breach. Accordingly, the Court grants the Defendant’s request and orders the Plaintiff to pay $1,575 under the settlement agreement.