Judge: Gregory Keosian, Case: 19STCV29624, Date: 2023-02-27 Tentative Ruling

Case Number: 19STCV29624    Hearing Date: February 27, 2023    Dept: 61

Plaintiff Conrad Cho’s Motion to Vacate Dismissal is DENIED.

I.                MOTION TO SET ASIDE DISMISSAL

“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).)

Plaintiff Conrad Cho (Plaintiff) moves to set aside the dismissal ordered on June 10, 2022. The minute order of that date states as follows:

Court and counsel confer regarding the status of arbitration. Arbitration has been initiated and the parties are currently waiting to hear back from JAMS.

With the agreement of all parties, the Court orders the Complaint dismissed as follows:

The Court orders the Complaint filed by Conrad Cho on 08/20/2019 dismissed without prejudice.

(June 10, 2022 Minute Order.)

Plaintiff argues that this order was entered by mistake, as this PAGA action was never submitted to arbitration, and the arbitration discussed at the June 10, 2022 hearing referred to Plaintiff’s separate individual wage-and-hour case, filed under LASC Case No. 21STCV34848.

“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.” (In re Candelario (1970) 3 Cal.3d 702, 705.)

Clerical error, however, 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.’ (46 Am.Jur.2d, Judgments, s 202.) Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. . . . An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.

(Id. at p. 705.)

Plaintiff’s requested relief is not available, as Plaintiff requests the rectification of judicial rather than clerical error. The error that Plaintiff identifies is the dismissal of this case pursuant to the parties’ agreement and the evident misconception that arbitration was proceeding in this case, when in fact it was proceeding in another case dealing with a similar subject matter. It is an argument, therefore, that “the error was made in rendering the judgment.” (Candelario, supra, 3 Cal.3d at p. 705.) Such an error is not a clerical mistake within the meaning of Code of Civil Procedure § 473, subd. (d).

Plaintiff further argues that the dismissal may be vacated as void. (Reply at pp. 3–4.) Plaintiff does not explain why the order is void, however, except to argue that the order contains language claiming limited jurisdiction over the non-existent arbitration proceedings. (Reply at pp. 3–4.) There is no reason, however, for the dismissal to be made void because of this collateral retention of jurisdiction.

The motion is therefore DENIED.