Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PC20060515.
NICHOLSON, Acting P. J.
Defendants Fasteners International, Inc., and its sole shareholder, Bill M. Reed (collectively “Fasteners”), appeal from a stipulated judgment that the trial court allowed plaintiffs Dragon Iron Factory Co., Ltd., and Sky Dragon International, Ltd. (collectively “Dragon”), to file in May 2009 after setting aside an April 2008 voluntary dismissal (without prejudice) that its clerk had entered in response to Dragon’s form request. Fasteners asserts that Dragon failed to seek timely relief from the entry of dismissal under Code of Civil Procedure section 473 (subsequent undesignated section references are to this code), and therefore the trial court lacked jurisdiction to set it aside and allow Dragon to file the stipulated judgment in its stead. We agree and reverse the judgment with directions to reinstate the dismissal.
BACKGROUND
The facts are few and undisputed. At issue is their legal significance.
Dragon filed its complaint for breach of contract and fraud in September 2006. The merits of the dispute are not before us.
The parties advised the trial court in January 2008 that a settlement was imminent. In early February 2008, the parties executed an extrajudicial written settlement and stipulation. This provided for payments to the plaintiffs in February 2008, February 2009, and February 2010. After receipt of the first payment, “the above entitled action shall be conditionally dismissed without prejudice with the court retaining jurisdiction to enforce this stipulation and settlement pursuant to... Section 664.6.” (Emphasis added.) In the event Fasteners failed to make either subsequent payment, Dragon could apply ex parte to the trial court “for an order setting aside the dismissal and entering judgment for all undue [sic] sums against both defendants....”
On the basis of the notice of settlement it had received, the trial court issued an order to show cause why it should not dismiss the case. Dragon, as noted, filed only a form request for a voluntary dismissal without prejudice (rather than request a conditional dismissal), which the clerk entered on April 13, 2008.
In July 2008, Dragon apparently attempted to file the settlement and stipulation with the trial court for the first time. The clerk returned the document unfiled, advising Dragon that the court had dismissed the case and lost jurisdiction, therefore a motion to set aside the dismissal was necessary.
In March 2009, Dragon apparently filed an application ex parte to enter the stipulated judgment for the “undue” sums because Fasteners purportedly failed to pay the February 2009 installment. At the hearing on the application, the trial court ruled that it lacked jurisdiction because it had dismissed the case, and invited Dragon to file a motion to set aside the dismissal. (These facts appear only in the order setting aside the dismissal.)
Shortly afterward, Dragon filed the present motion to set aside the dismissal and enter the stipulated judgment. Dragon relied solely on the provision in section 664.6 that “‘[i]f the parties to pending litigation stipulate[] in a writing signed by the parties outside the presence of the court... for settlement of the case..., the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.’” Dragon appended the settlement and stipulation, and a copy of its notice of default to Fasteners. Significantly, Dragon did not address the criteria of section 473 or provide any evidence in support of them, and specifically abjured any reliance on section 473 in its reply to Fasteners (which had asserted the untimeliness of relief under section 473).
Although the trial court cited section 664.6 at one point, the statute was not part of its analysis. In its ruling on the motion, it acknowledged that it lost jurisdiction upon the filing of the dismissal. It then asserted it could relieve a party from a dismissal under section 473, subdivision (b) (quoting the statute but eliding its limitation that “[a]pplication for this relief... shall be made within a reasonable time, in no case exceeding six months, after the... dismissal”). (§ 473, subd. (b).) The court’s order turned to an analysis of the applicability of the statute to voluntary dismissals, quoting all of Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 from page 254 to page 257. In this section, the Supreme Court limited our decision in Huens v. Tatum (1997) 52 Cal.App.4th 259 (denying relief from a voluntary dismissal entered as part of an offer to compromise (section 998)) to the mandatory provision in section 473, subdivision (b) for attorney neglect, and disapproved extending it to section 473’s discretionary provisions (see 8 Witkin, Cal. Procedure (5th ed. 2008), Attack on Judgment in Trial Court, § 201, p. 809). This quote, however, does not at any point address the question of the timeliness of a motion under the statute’s discretionary provision. The court’s order then granted the motion to set aside the dismissal and enter the stipulated judgment without any further elaboration.
At argument on the motion, counsel for Dragon embraced this misinterpretation in the trial court’s tentative decision in its discussion of the Supreme Court’s reasoning.
DISCUSSION
The only action a trial court may take after the voluntary dismissal of an action (whether with or without prejudice) is to consider an award of costs or fees, or a motion to set aside the dismissal. (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1007-1008 (Hagan); Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876; Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21-22 (Basinger).) A trial court that has already lost jurisdiction cannot regain it through the consent of the parties. (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 207.)
Section 664.6 allows a court to retain jurisdiction over a case after a dismissal only where the parties present a request to the court before it dismisses the action: “the request for retention of jurisdiction must... be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves... (3) in a writing signed by the parties....” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440, emphasis added (Wackeen).) Although the trial court had approved a settlement agreement in Wackeen before the filing of the last of the requests for dismissal, this did not include an express provision requesting the court to retain jurisdiction to enforce it. Therefore, the trial court could not entertain a motion to enforce the judgment under section 664.6, and the defendants had to seek relief “by means of a timely separate action.” (Wackeen, supra, 97 Cal.App.4th at pp. 434, 441.)
Similarly, the plaintiff in Hagan had dismissed its action with prejudice and then moved (two years later) under section 664.6 to enforce an extrajudicial settlement that had a provision for this procedure. (115 Cal.App.4th at pp. 1006-1007.) Initially filing a motion to set aside the dismissal, the plaintiff later dropped it in the mistaken belief it was unnecessary. (Id. at p. 1007.) As we stated, the purported grant of jurisdiction to the trial court in the extrajudicial settlement to enforce it under section 664.6 “was a nullity.” (Hagen, supra, at p. 1008.) We cited Wackeen with approval, and noted the concession of the plaintiff that it had never presented the trial court with any request for it to retain jurisdiction before the dismissal; rather, it had reached only an extrajudicial covenant with its opponent on this issue that did not vest jurisdiction in the trial court. (Hagen, supra, 115 Cal.App.4th at p. 1010-1011; accord, Basinger, supra, 220 Cal.App.3d at p. 23 & fn. 11 [section 664.6 of itself “says nothing about vacating judgments”; a party must “first seek relief from judgment under section 473, and if successful, then [bring] a motion under section 664.6” (italics added), which can be part of a single application]; cf. Walton v. Mueller (2009) 180 Cal.App.4th 161, 172, 174 [following entry of default judgment, court does not have jurisdiction to hear motion under section 664.6; party must seek to enforce postjudgment settlement through motion to compel entry of satisfaction of judgment (§ 724.050, subd. (d)].)
Inexplicably, Dragon overlooks these express holdings in arguing ipse dixit that it did not need to present its written agreement for the trial court to retain jurisdiction under section 664.6 before it unconditionally dismissed the action. To the contrary, Dragon was incorrect in placing all its eggs in the section 664.6 basket in the trial court and on appeal.
Dragon’s abdication of reliance on section 473 does not absolve us of the obligation of determining whether Fasteners has satisfied its burden of establishing that the trial court incorrectly invoked the statute. (See Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 588.) It is black-letter law that section 473, subdivision (b)’s six-month limit is jurisdictional and applies both to its discretionary and mandatory provisions (as Fasteners correctly maintains). (8 Witkin, supra, Attack on Judgment in Trial Court, § 175, pp. 772-773, § 202, p. 809.) Moreover, even on the merits, a party’s breach of a settlement agreement is not among the criteria for relief from a dismissal (Basinger, supra, 220 Cal.App.3d at p. 23, cited with approval in Hagan, supra, 115 Cal.App.4th at p. 1009) and Dragon otherwise did not present any facts warranting such relief. As a result, the trial court erred both procedurally and substantively in purporting to set aside Dragon’s dismissal and allowing it to file the stipulated judgment.
DISPOSITION
The judgment is reversed with directions to deny the motion to set aside the April 2008 dismissal. Fasteners is awarded its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
We concur: ROBIE, J., BUTZ, J.