Judge: Anne Hwang, Case: BC722083, Date: 2023-10-30 Tentative Ruling

Case Number: BC722083    Hearing Date: October 30, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiffs move to set aside the Court’s order of February 2, 2022, in which the Court dismissed Plaintiffs’ complaint for failure to file default judgment. Plaintiffs bring this motion pursuant to Code of Civil Procedure section 473(d). No opposition has been filed.

ANALYSIS

Code of Civil Procedure § 473, subdivision (d), provides: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (Code Civ. Proc., § 473, subd. (d).)  

Section 473(d) “allows a trial court to set aside a void judgment without mentioning a time limit.” (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98.) “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” (Id. [citation omitted].) “A judgment is void if the court lacked jurisdiction over the subject matter of the parties, for example, if the defendant was not validly served with summons. [Citation omitted.] In contrast, a judgment is valid but voidable if it is the result of the court’s failure to follow proper procedure.” (Id.) In Johnson, the court found that the trial court had fundamental jurisdiction over the parties and the subject matter and concluded that the petitioner could not challenge the default and default judgment under section 473(d). (Id. at 99.) The court further concluded that the petitioner, having waited 12 years, was untimely in any motion to set aside brought under section 473(b).

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340 [citations omitted].) 

“The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination.” (Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 209.) “A clerical error in a judgment, as regards correction, includes one made by the court which cannot reasonably be attributed to exercise of judicial consideration or discretion.” (Id. at 209-10 [citation and quotations omitted].) “Clerical error is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Any attempt by a court, under the guise of correcting clerical error, to revise its deliberately exercised judicial discretion is not permitted.” (Id. [citation and quotations omitted].)

Here, Plaintiffs argue that the Court erred in dismissing the case pursuant to California Rule of Court 3.740. However, the Court had fundamental jurisdiction over the subject matter and over Plaintiffs. Plaintiffs argue that the judgment is the result of the Court’s failure to follow proper procedure. Plaintiffs have not demonstrated that the judgment was void, rather than voidable. Moreover, the error at issue does not appear to have been a clerical mistake in the judgment, but a ruling by the Court in the exercise of judgment. The minute order dated October 29, 2021 states that “Counsel also represents to the Court, a Default Judgment packet will be filed as to Edgar Verduzco (Defendant). An Order to Show Cause Re: Dismissal/ Failure to File Default Judgment Pursuant to CRC 3.740 is scheduled for 02/02/2022 at 8:30 AM in Department 32 at Spring Street Courthouse. (Minute Order Dated 10/29/21 [emphasis added].)

Accordingly, Plaintiffs have not established that section 473(d) applies.

CONCLUSION AND ORDER

Accordingly, the Court denies Plaintiffs’ motion to set aside dismissal.

Plaintiffs are ordered to provide notice of this Order and file proof of service of such.