Judge Audra Mori, Case 20STCV26066 2022-12-14 Tentative Ruling

Judge: Audra Mori, Case: 20STCV26066, Date: 2022-12-14 Tentative Ruling

Case Number: 20STCV26066 Hearing Date: December 14, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

IVAN REYNA,

Plaintiff(s),

vs.

BAKER FURNACE, INC., ET AL.,

Defendant(s).

)

CASE NO: 20STCV26066

[TENTATIVE] ORDER GRANTING EX PARTE APPLICATION FOR AN ORDER SETTING ASIDE DISMISSAL

Dept. 31

1:30 p.m.

December 14, 2022

Plaintiff Ivan Reyna (“Plaintiff”) filed this action against Defendant Baker Furnace, Inc. (“Defendant”) asserting a products liability claim against Defendant.

On August 3, 2021, Berkshire Hathaway Homestate Insurance Company, as administered by Berkshire Hathaway Homestate Companies’, (“Berkshire”) motion for leave to intervene in this action was granted, and Berkshire then filed its complaint-in-intervention against Defendant.

On October 21, 2022, Plaintiff filed a Notice of Settlement of Entire Case providing that the case was settled as to Plaintiff’s complaint only, and not as to intervenor Berkshire. On November 7, 2022, Plaintiff filed a Request for Dismissal of his complaint, and the dismissal was entered on November 9, 2022.

On November 21, 2022, Berkshire filed an ex parte application for an order setting aside the dismissal of the entire action. [1] On the Court’s own motion, the ex parte application was continued to December 14, 2022, with the opposition and reply deadlines set pursuant to CCP § 1005. To date, no opposition has been filed.

Berkshire argues that the Court Clerk should not have dismissed the entire action because Plaintiff’s counsel was not authorized to dismiss the action as to Berkshire’s complaint-in-intervention.

CCP § 473(d) states: “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.”

Pertaining to the dismissal of the entire action, CCP § 581(b)(1) states an action may be dismissed “With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.” However, “No dismissal of an action may be made or entered, or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross-complaint of a defendant…” (CCP § 581(i).)

“The term ‘defendant,’ as used in that section, applies to an intervenor in the action if he has sought affirmative relief against a party to the action. [Citation.]” (Roski v. Superior Court (1971) 17 Cal.App.3d 841, 845; cf. (Lori, Limited, v. Wolfe (1948) 85 Cal.App.2d 54, 61 [attempted dismissal of defendants that filed cross-complaint seeking affirmative relief was ineffective].)

A dismissal entered by a Clerk that does not comply with CCP § 581 is without authority and void. (See Riley v. Superior Court (1952) 111 Cal.App.2d 365, 367.) The Riley Court held, “the county clerk, in entering the order for dismissal, acts in a mere ministerial capacity and exercises no judicial function. In exercising the power conferred, he is required to conform strictly to the provisions of the statute or his proceedings will be without binding force and any judgment entered by him will be void. [Citations.] Since affirmative relief was sought in the Answer filed by defendant, the dismissal was without authority and void.” (Riley, 111 Cal.App.2d at 367.)

In this case, Berkshire’s complaint-in-intervention sought affirmative relief against Defendant, as it sought reimbursement for workers’ compensation benefits paid to and on behalf of Plaintiff. Accordingly, Plaintiff was not authorized to dismiss the entire action. The Court Clerk was without authority to enter the dismissal because of the affirmative relief sought by Berkshire’s complaint-in-intervention, and therefore, the dismissal was void. (Riley, 111 Cal.App.2d at 367; Roski, 17 Cal.App.3d at 845.)

Berkshire’s request to set aside the dismissal, therefore, is granted. The dismissal of Berkshire’s complaint-in-intervention is set aside and vacated. The Court sets a Trial Setting Conference for ____________________ in this Department.

Intervener is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 14^th day of December 2022

Hon. Audra Mori

Judge of the Superior Court

[1] In connection with the instant ex parte application, Berkshire requests judicial notice be taken of the Berkshire’s complaint-in-intervention, Defendant’s answer to the complaint-in-intervention, Plaintiff’s Notice of Settlement of Entire Case, and Plaintiff Request for Dismissal all filed in this matter. The request is granted as to each item.