Judge: Michelle C. Kim, Case: 20STCP02105, Date: 2023-08-07 Tentative Ruling
Case Number: 20STCP02105 Hearing Date: August 7, 2023 Dept: 31
TENTATIVE
Plaintiff’s Motion to Reopen is DENIED.
Legal
Standard
Motion to Set Aside Dismissal
California Code of Civil Procedure
section 473 subdivision (b) provides for both discretionary and mandatory
relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298,
302.) Mandatory relief from default, default judgment, or dismissal is available
based on an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or
neglect. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26.)
Discretionary relief is available based on the party’s own declaration or other
evidence showing mistake, inadvertence, surprise, or excusable neglect. (Id.)¿¿¿
Reconsideration
Code of Civil
Procedure Section 1008(a) provides that “[w]hen an application for an order has
been made to a judge, or to a court, and refused in whole or in part, or
granted, or granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice of
entry of the order . . . [may] make application to the same judge or court that
made the order, to reconsider the matter and modify, amend, or revoke the prior
order. The party making the application shall state by affidavit what
application was made before, when and to what judge, what order or decisions
were made, and what new or different facts, circumstances, or law are claimed
to be shown.” (Code Civ. Proc., § 1008(a).) A trial court has
discretion with respect to granting a motion for reconsideration. (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206,
212.)
Section 1008, subdivision
(e) states: “No application to reconsider any order ... may be considered by
any judge or court unless made according to this section.” (Code Civ. Proc., § 1008(e).) “Section 1008 is
the exclusive means for modifying, amending or revoking an order. That
limitation is expressly jurisdictional.” (Gilberd v. AC Transit (1995)
32 Cal.App.4th 1494, 1499.)
“A motion for
reconsideration may only be brought if the party moving for reconsideration can
offer ‘new or different facts, circumstances, or law which it could not, with
reasonable diligence, have discovered and produced at the time of the prior
motion. (Citations.) A motion for reconsideration will be denied absent a strong
showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest
v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th
183, 202 disapproved of and overruled on unrelated grounds
in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172
(footnote 3); New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212–213; Baldwin v.
Home Sav. of America. (1997) 59 Cal.App.4th 1192,
1199.) There is a strict requirement of diligence
on the moving party; the moving party must present a satisfactory explanation
for failing to provide the evidence or different facts earlier. (Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
Discussion
As an initial
matter, Defendants California Unemployment Insurance Appeals Board and J. Paul
Getty Trust assert that they were never
served with notice of the Motion and only discovered the motion after they
received Notice of the Continuance.
However, by filing opposing papers on the merits and appearing at
the hearing, Defendants “waive any defects or irregularities in the notice of
the motion. This rule applies even when no notice was given at all.” (Reedy
v. Bussell (2007) 148 Cal.App.4th 1272, 1288.)
As to the
merits, Plaintiff seeks to reopen her case. On May 31,
2023, the Court already ruled upon this motion, denying relief. The Court
construed Plaintiff’s motion as one under Code
of Civil Procedure section 437(b) and found Plaintiff’s
motion was deficient in two ways. First, Plaintiff failed to offer an explanation for the delay in seeking relief. Secondly, and importantly,
Plaintiff filed the motion to reopen more than six months after Plaintiff’s
case was dismissed. The six-month limitation is jurisdictional, and the Court
has no power to grant relief under section 473 once the time to seek relief has
lapsed. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333,
345; Rappleyea v. Campbell¿(1994) 8 Cal.4th 975, 980;¿Weitz v.
Yankosky¿(1966) 63 Cal.2d 849, 855.)
Additionally,
Plaintiff has offered no basis for the Court to reconsider its May 31, 2023
ruling. Plaintiff’s motion does not offer new or different facts, circumstances, or law which it could
not, with reasonable diligence, have discovered and produced at the time of the
prior motion. Moreover, and more importantly, even if Plaintiff did, any motion
for reconsideration would be untimely, as the Court mailed Plaintiff notice of
the May 31, 2023 ruling on the same day, and Plaintiff filed this motion on
July 3, 2023, well more than 10 days after notice of the May 31, 2023 ruling
was served on Plaintiff. Thus, any motion for reconsideration would be
untimely.
Lastly, the Court
notes that Plaintiff argues Plaintiff was not given notice by the Court of the case management conference hearing which was held on July 2, 2021,
or the OSC Re: Dismissal of August 2, 2021. It appears Plaintiff is arguing the
August 2, 2021 dismissal was void for lack of notice.
“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).
(“Section 473(d)”)
“[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.)
The judgment must
be void, not merely voidable. A judge has no statutory authority under Section
473(d) to set aside a judgment that is not void. (Cruz v. Fagor Am., Inc.
(2007) 146 Cal.App.4th 488, 495-496.) When a court has jurisdiction over the
defendant and the action but acts in excess of its defined power by failing to
follow proper procedure, any resulting default judgment is voidable, not void.
(Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99
[by awarding terminating sanctions on ex parte basis, judge at
most failed to follow proper procedure, and resulting default judgment was
voidable, not void]; Lee v. An (2008) 168 Cal.App.4th 558, 564-566
[subsequent default judgment was voidable, not void, when judge imposed
terminating sanction against defendant for failure to appear at case management
conference as specified in court's local rules and judge had not given notice
to defendant].)
“An order is
considered void on its face only when the invalidity is apparent from an
inspection of the judgment roll or court record without consideration of
extrinsic evidence. [] There is no time limit to attack a judgment void on its
face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009,
1021.) “If the invalidity can be shown only through consideration of extrinsic
evidence, such as declarations or testimony, the order is not void on its face.
Such an order must be challenged within the six-month time limit prescribed by
section 473, subdivision (b), or by an independent action in equity.” (Ibid.)
Here, on 5/17/21
the Court scheduled a case management conference for July 2, 2021, and sent
notice to plaintiff. (5/17/2021 Certificate of Mailing.) However, on July 2,
2021, Plaintiff failed to appear. The Court therefore scheduled an Order to
Show Cause Re: Dismissal on this same day, for August 2, 2021. (7/2/2021 minute
order.) Attorney Kenneth Wang was ordered to give notice. (Id.) The record does
not show that any notice of the OSC was served on Plaintiff.
In any event, the
Court finds that the August 2, 2021 order dismissing the case is voidable, not
void, and therefore, the Court has no statutory authority
under Section 473(d) to set aside the judgment as it is not void. (Cruz
v. Fagor Am., Inc. (2007) 146 Cal.App.4th 488, 495-496.)
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).)
Because the
Court only acted
without the occurrence of certain procedural prerequisites but did have
jurisdiction in a fundamental sense due to its power to hear the case, the
August 2, 2021 judgment is merely voidable. (See Lee v. An (2008)
168 Cal.App.4th 558, 564-566.) The Court has no authority under Section 473(d)
to set aside the August 2, 2021 order of dismissal.
Conclusion
Based on the foregoing, Plaintiff’s Motion to Reopen is
DENIED.
Court Clerk is ordered to give notice.