Judge: Lisa R. Jaskol, Case: BC667737, Date: 2023-10-17 Tentative Ruling

Case Number: BC667737    Hearing Date: October 17, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On July 6, 2017, Plaintiff Northland Insurance Company, as subrogee of its insured, Vardan Gyokchians (“Plaintiff”), filed this action against Defendants Anie Fnu Jumaiyah aka Anie Langevin (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence. 

On April 12, 2018, the Court granted Plaintiff’s request for default judgment and entered judgment against Defendant for $36,818.05.  The Court also dismissed Does 1-10 without prejudice at Plaintiff’s request. 

On May 22, 2018, the Court dismissed Does 11-50 without prejudice at Plaintiff’s request. 

On January 8, 2019, the Court dismissed the entire action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3), when no parties or counsel appeared for trial. 

Over four years later, on June 1, 2023, Plaintiff filed a motion to set aside the dismissal, to be heard on October 17, 2023.  Defendant has not filed an opposition. 

LEGAL STANDARD 

          Code of Civil Procedure section 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).) 

DISCUSSION 

On April 12, 2018, the Court entered default judgment against Defendant. However, the Court failed to take all future hearings off calendar.  On the trial date, when no parties appeared, the Court dismissed the action.

Plaintiff argues the order dismissing the case is “void” and should be set aside.  The Court concludes the order is at most “voidable.”  (See Johnson v. E-Z Insurance Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99 [“The default and default judgment against Kiasi were not void, but at most were voidable, because the trial court had fundamental jurisdiction over the parties and the subject matter”].) 

However, “[i]t is well settled that a court has the inherent power to correct clerical error in its judgment so that the judgment will reflect the true facts.” (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034 (Tobias).) “The power of a court to correct clerical mistakes in judgments is also a statutory power pursuant to section 473.”  (Ibid.) 

“A clerical error in the judgment includes inadvertent errors made by the court ‘which cannot reasonably be attributed to the exercise of judicial consideration or discretion.’” (Tobias, supra, 208 Cal.App.3d at p. 1034, quoting Bowden v. Green (1982) 128 Cal.App.3d 65, 71.) “ ‘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.” [Citation.] Any attempt by a court, under the guise of correcting clerical error, to “revise its deliberately exercised judicial discretion” is not permitted. [Citation.]’ ” (Id. at pp. 1034-1035.)  “A judicial error is the deliberate result of judicial reasoning and determination.” (Id. at p. 1035.) 

“The court's inherent power to correct clerical errors includes errors made in the entry of the judgment or due to inadvertence of the court. ‘The term "clerical error" covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected....”’” (Tobias, supra, 208 Cal.App.3d at p. 1035, quoting George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 480–481.) “The signing of a judgment, which does not express the actual judicial intention of the court, is clerical rather than judicial error.”  (Ibid.) 

Here, the Court would not have dismissed the case had it not been for a clerical error in failing to take future hearings off calendar when the Court granted Plaintiff’s request for default judgment on April 12, 2018.  Although the Court presumably intended to dismiss the case, the Court’s ruling was the direct result of a clerical error that placed the case on calendar despite the previous entry of a final judgment. 

The Court corrects the clerical error by vacating the January 8, 2019 order of dismissal. 

CONCLUSION 

The Court GRANTS Plaintiff Northland Insurance Company’s motion to set aside dismissal.  The Court vacates the January 8, 2019 order of dismissal. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.