Judge: Katherine Chilton, Case: 20STLC02507, Date: 2023-03-16 Tentative Ruling

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Case Number: 20STLC02507     Hearing Date: March 16, 2023    Dept: 25

PROCEEDINGS:      MOTIONS TO VACATE VOID ORDER

MOVING PARTY:   Plaintiff Nicole Jackson

RESP. PARTY:         Defendant Jorge Hernandez

MOTIONS TO VACATE VOID ORDER

(CCP §§ 473(d), 170.3 and 170.4)

TENTATIVE RULING:

Plaintiff Nicole Jackson’s Motion to Vacate Void Order, originally reserved for hearing on February 23, 2023, is DENIED with prejudice.

Plaintiff Nicole Jackson’s second Motion to Vacate Void Order, originally reserved for hearing on March 16, 2023, is DENIED with prejudice.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 [OK]

[X] Correct Address (CCP §§ 1013, 1013a)                                                 [OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [OK]

OPPOSITION:          Filed on February 8 and March 6, 2023.            [X] Late                       [   ] None

REPLY:                     None filed as of March 13, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 16, 2020, Plaintiff Nicole Jackson (“Plaintiff”), in propria persona, filed an action against Defendant Jorge Hernandez (“Defendant”) for general and motor vehicle negligence.  The action arises out of an automobile accident that allegedly occurred on March 16, 2018.  On April 15, 2020, Defendant filed an Answer denying all allegations in the Complaint.

On August 29, 2022, Defendant filed a Motion for Terminating Sanctions.  On September 28, 2022, the Court granted Defendant’s Motion and dismissed the Complaint with prejudice.  (9-28-22 Minute Order.)  On the same day, the Court ordered Plaintiff’s Statement of Disqualification stricken.  (9-28-22 Order.)

On November 2, 2022, Plaintiff, in propria persona, filed two (2) Motions to Vacate Void Order, one reserved for hearing on February 23, 2023 (“Motion 1”) and another reserved for hearing on March 16, 2023 (“Motion 2”).  Defendant filed an Opposition to Motion 1 on February 8, 2023.

On February 23, 2023, the Court continued the hearing on Motion 1 to March 16, 2023, in order to hear both Motions on the same day.  (2-23-23 Minute Order.)

On March 6, 2023, Defendant filed an Opposition to Motion 2.

No reply has been filed.

II.              Legal Standard

“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 of Civ. Proc. § 473(d).)

III.            Discussion

On August 29, 2022, after more than two years of litigation, Defendant Hernandez filed a Motion for Terminating Sanctions.  On September 28, 2022, the Court found that terminating sanctions were appropriate because Defendant presented “ample evidence demonstrating Plaintiff’s refusal to comply with discovery requests and subsequent Court orders compelling Plaintiff’s compliance,” “Plaintiff has continuously refused to comply with Defendant’s requests and, since initiating the action in March 2020, has filed at least two dozen motions and numerous oppositions,” including “several motions to void, vacate, and reconsider Court orders.”  (9-28-22 Minute Order, p. 8.)  Furthermore, “Plaintiff’s conduct has demonstrated an unwillingness on her part to expeditiously resolve the matter and reach a just resolution with Defendant, as Plaintiff has expended her time and resources in challenging Defendant’s requests and the Court’s orders instead of proceeding to resolve the case.”  (Ibid.)  The Court noted that lesser sanctions would be ineffective as monetary sanctions “have not motivated Plaintiff to comply with discovery requests and Court orders.”  (Ibid.)  Thus, “having considered the totality of circumstances and finding that there has been willful violation of discovery orders, a history of abuse and misuse of the discovery process, and evidence that lesser sanctions have not motivated compliance,” the Court granted Defendant’s Motion for Terminating Sanctions and dismissed the case with prejudice.  (Ibid. at pp. 8-9.)

On November 2, 2022, Plaintiff filed two Motions to Vacate Void Order, one reserved for hearing on February 23, 2023, (“Motion 1”), and a second reserved for hearing on March 16, 2023, (“Motion 2”).  On February 23, 2023, the Court continued the hearing on Motion 1 to March 16, 2023, and now reviews the merits of both Motions.  (2-23-23 Minute Order.)

A.    Plaintiff’s Motion to Vacate Void Order #1

Plaintiff states that on September 28, 2022, at 8:45 a.m., she filed a verified statement of disqualification of Judge Katherine Chilton.  (Jackson Decl. ¶ 2.)  As a result of this filing, Plaintiff did not appear at the hearing set for 10:00 a.m. on the Motion for Terminating Sanctions.  (Ibid. at ¶ 3.)  Plaintiff did not know of any order striking the statement of qualification before the hearing on the Motion for Terminating Sanctions.  (Ibid.)  Plaintiff states that the Court dismissed the First Amended Complaint (“FAC”) with prejudice; however, the FAC had already been stricken in August 2021.  (Jackson Decl. ¶ 4.)  Plaintiff argues that the Court order striking the FAC is void because the FAC had already been stricken in August 2021 and thus, “the Court has no jurisdiction to strike a Complaint that does not exist in the record.”  (Ibid. at ¶ 5.)  Moreover, “the court lacked fundamental authority over the parties because of the standing disqualification at the time.”  (Mot. p. 5.)

Defendant opposes Plaintiff’s Motion on the ground that the statement of disqualification was properly stricken before the hearing because it was untimely and legally insufficient.  (2-8-23 Oppos. pp. 2-6.)

B.    Plaintiff’s Motion to Vacate Void Order #2

In her second Motion, Plaintiff reiterates that on September 28, 2022, at 8:45 a.m., she filed a verified statement of disqualification of Judge Katherine Chilton.  (Jackson Decl. ¶ 2.)  As a result of this filing, Plaintiff did not appear at the hearing set for 10:00 a.m. on the Motion for Terminating Sanctions.  (Ibid. at ¶ 3.)  Plaintiff did not know of any order striking the statement of qualification before the hearing on the Motion for Terminating Sanctions.  (Ibid. at ¶ 4.)  Plaintiff states that she “was surprised to later learn that that the Court held the hearing prior to filing an order striking the verified statement of disqualification, as required by Code of Civil Procedure § 170.4” and Judge Chilton conceded that she did not strike the statement of disqualification prior to the hearing on the Motion for Terminating Sanctions.  (Ibid. at ¶¶ 5-6.)  Plaintiff argues that because “[t]he question of Judge Chilton’s disqualification was not determined at or before the September 28, 2022, hearing, therefore, she lacked power to decide the merits of the matters before her at the hearing.”  (Mot. pp. 5-6.)  As a result of the Court’s “failure to comply with Code of Civil Procedure § 170.4” Plaintiff did not have notice to appear at the 10:00 a.m. hearing and thus, “suffered irreparable harm.”  (Jackson Decl. ¶ 7.)

On March 6, 2023, Defendant filed a late Opposition to Motion 2, indicating that the Opposition was not timely due to a “records/calendaring error.”  (Mot. p. 1; Park Decl. ¶ 6.)  The Opposition was served on the Plaintiff by priority express mail and electronic transmission.  (3-6-23 Oppos. pp. 19-20.)  Given that a self-represented party may not be served via electronic transmission without express consent, pursuant to Code of Civil Procedure § 1010.6, the Court only considers service by priority express mail.  (Ibid.)  Assuming that Plaintiff received the Opposition the following day, on March 7, 2023, she had seven court days to file a reply to the Opposition.  Accordingly, the Court, in its discretion, considers Defendant’s Opposition to Motion 2.  (Cal. Rules of Court, rule 3.1300(d).)

As with the first Motion to Vacate Void Order, Defendant opposes Plaintiff’s Motion 2 on the ground that the statement of disqualification was properly stricken before the hearing because it was untimely and legally insufficient.  (3-6-23 Oppos. pp. 2-6.)

C.    Analysis

In the two Motions to Vacate Void Order, Plaintiff presents the same two grounds to render the Court’s September 28, 2022, Order void.  First, Plaintiff argues that the Court had already granted Defendant’s Motion to Strike First Amended Complaint on August 12, 2021.  (8-12-21 Minute Order.)  Plaintiff is correct that the Court Order issued on September 28, 2022, granting Defendant’s Motion for Terminating Sanctions, erroneously dismissed the First Amended Complaint, which had previously been stricken.  (9-28-22 Minute Order, p. 9.)  However, Plaintiff does not present any evidence or arguments showing that the entire Order is void due to the clerical error.  Thus, the Court, on its own motion, nunc pro tunc corrects the September 28, 2022, Minute Order and orders the original Complaint, filed on March 16, 2020, dismissed with prejudice.

Second, Plaintiff argues that the September 28, 2022, Order is voidable because Judge Chilton did not address her Statement of Disqualification prior to ruling on the Motion for Terminating Sanctions.

According to Code of Civil Procedure § 170.1, a judge may be disqualified where grounds of disqualification are shown to exist.  A party may initiate the proceedings to disqualify a judge by filing a verified statement objecting to a hearing or trial before a judge and presenting grounds for disqualification.  (Code of Civ. Proc. § 170.3(c)(1).)  “The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  (Ibid.)  Furthermore, “[t]he determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding…filed and served within 10 days after service of written notice of entry of the court’s order determining the question of disqualification.”  (Code of Civ. Proc. § 170.3(d).)  If the verified statement is not filed promptly upon discovery of the ground of disqualification, the party objecting to the judicial officer forfeits or waives its right to seek disqualification.  (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337-38; In re Steven O. (1991) 229 Cal. App.3d 46, 54-55.)  Thus, “if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken.”  (Code of Civ. Proc. § 170.4(b); Tri Counties Bank, 167 Cal.App.4th at 1337-1339.)  A challenged judge may strike the statement within 10 days after filing or service if it is legally insufficient.  (Code of Civ. Proc. §§ 170.3(c)(1), 170.4(b), Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 1104.)

In this case, Plaintiff served and filed a statement of disqualification of Judge Katherine Chilton on September 28, 2022, immediately prior to the scheduled hearing on Defendant’s Motion for Terminating Sanctions.  (9-28-22 Order Striking Statement of Disqualification, p. 1.)  Judge Chilton notes that the Statement was filed after denial of Plaintiff’s ex parte application for trial continuance and the Court’s posting of the tentative ruling on Defendant’s Motion for Terminating Sanctions.  (Ibid. at p. 2.)

Prior to the hearing on the Motion, the Court reviewed the statement of disqualification and “made a verbal order from the bench striking the Statement pursuant to Code of Civil Procedure section 170.4, subdivision (b), because the Statement is based on untimely allegations and demonstrates on its face no legal grounds for disqualification.”  (Ibid. at pp. 1-2.)  On the same day, Judge Chilton issued a timely, written order striking the Statement.  (9-28-22 Order Striking Statement of Disqualification.)

Thus, given that Judge Chilton verbally ordered Plaintiff’s Statement stricken prior to the hearing on the Motion for Terminating Sanctions and issued a timely written order striking the Statement, the subsequent Court Order granting Defendant’s Motion is not void.

For this reason, both Motions to Vacate Void Order are DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Nicole Jackson’s Motion to Vacate Void Order, originally reserved for hearing on February 23, 2023, is DENIED.

Plaintiff Nicole Jackson’s second Motion to Vacate Void Order, originally reserved for hearing on March 16, 2023, is DENIED.

Moving party is ordered to give notice.