Judge Lynne M. Hobbs, Case Number: 21STCV04001, Date: 2024-01-31 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV04001, Date: 2024-01-31 Tentative Ruling

Case Number: 21STCV04001 Hearing Date: January 31, 2024 Dept: 30

ANGELICA XAVIER vs WILLIAM ERUCH FILES

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED. Clerk to give notice.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. The discretionary relief prong states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a … dismissal… taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the … dismissal … was taken.” (CCP section 473(b).) The mandatory prong states: “The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client….” (Id.)

Code of Civil Procedure section 473, subdivision (d) provides this Court with the authority, upon motion by a party or upon the Court’s own motion, to set aside any void order. (Code Civ. Proc., § 473, subd. (d) [“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.”].) Only “void” orders may be set aside under Code of Civil Procedure section 473, subdivision (d), as opposed to voidable orders. (Ibid.)

“There is no time limit to attack a judgment [or order which is] void on its face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) An order is considered “void on its face” where “the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.” (Ibid.) Alternatively, where an order is not “void on its face”, the challenging party must challenge the order “within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Ibid.) An order will not be “void on its face” where the invalidity “can be shown only through consideration of extrinsic evidence, such as declarations or testimony.” (Ibid.)

“[I]nclusion of the word ‘may’ in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) However, the trial court “has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void…” (Id. at pp. 495-496.) Thus, the reviewing court “generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, if so, whether the trial court properly exercised its discretion in setting it aside.” (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822.)

A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in [a] fundamental sense’ due to the ‘‘entire absence of power to hear or determine the case’ ‘resulting from the ‘‘absence of authority over the subject matter or the parties.’ ‘To be sure, a court that ‘‘‘acts contrary to [its] authority’’ ‘‘‘to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites’ ‘is often said to lack ‘jurisdiction.’ But such acts do not render the court's ensuing judgment or order void. That is because ‘jurisdictional errors can be of two types[:] 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.’ Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgments and orders may not. (People v. North River Insurance Co. (2020) 48 Cal.App.5th 226, 233-234 (citations omitted).)

Discussion

Plaintiff moves to set aside the dismissal under CCP sections 473(b) and 473(d) due to mistake, inadvertence, or excusable neglect, and/or a clerical error.

However, the motion is not timely filed under CCP section 473(b). The action was dismissed on November 30, 2022. This Motion to Set Aside the Dismissal was filed on November 6, 2023, well past six months, and almost one year, after the Court dismissed the complaint and mailed Plaintiff notice of the dismissal. The Court does not have authority under CCP section 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.) Thus, the motion for relief under CCP section 473(b) is denied.

Next, the Court finds that Plaintiff has failed to show there was a clerical error or void judgment and thus, Plaintiff is not entitled to relief under CCP section 473(d). The Court dismissed the case because Plaintiff failed to appear for trial pursuant to CCP section 581(b)(3), which allows the Court to dismiss the case when no party appears for trial following 30 days’ notice of time and place of trial. On July 20, 2022, Plaintiff signed a stipulation to continue trial to November 30, 2022. Thus, she had notice of the time and place of trial. Plaintiff argues that she was unaware trial would proceed because she only amended the complaint to name Tesla 55 days prior to the trial date, and Tesla had not yet appeared. However, pro per litigants are held to the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. … A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985, citation omitted.) Plaintiff failed to appear for trial due to her own negligence. Her recourse was to move under CCP section 473(b) within 6 months of the dismissal. She failed to do so.

The Court has no authority under Section 473(d) to set aside the November 30, 2022 order of dismissal.