SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

On September 19, 2021, Plaintiff Joanna Gershenson (“Plaintiff”) filed this action against Bowlmor Santa Monica, et al. for damages arising from a trip and fall.    

On April 5, 2022, Defendant AMF Bowling Centers Inc., erroneously sued as Bowlmor Santa Monica, (“AMF”) filed a Notice of Removal of the action to the United States District Court for the Central District of California, Western Division.  

On March 1, 2023, no parties appeared at the hearing regarding the Status of Removal to Federal Court. At that time, because no parties filed a status report, and the Court did not receive a remand Order from Federal Court, this Court dismissed the action pursuant to Rule 3.22 of the Los Angeles Superior Court Local Rules. (Min. Order, March 1, 2023.) 

However, unbeknownst to the Court at the time of dismissal, the Federal Court issued an Order of Remand on July 18, 2022. (Notice of Remand, Nov. 9, 2023.) Plaintiff filed notice of the remand over one year later, on November 9, 2023.  

On December 27, 2023, Plaintiff filed the instant motion for an order nunc pro tunc to correct the docket to reflect that the matter was remanded.¿AMF opposes the motion to place this matter back on the docket, arguing that Plaintiff’s motion is a disguised CCP section 473(b) motion, that it has been nine months since the dismissal, and that Plaintiff cannot re-file her case because of the statute of limitations. 

II. Discussion  

Code Civ. Proc., section 473(d) provides that 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. It is improper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight, or error, or show what the court might or should have done as distinguished from what a court did. (Sannmann v Department of Justice (2020) 47 CA5th 676, 683–684, quoting In re Candelario (1970) 3 Cal.3d 702, 705. [“The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.]) 

Here, this is not a clerical error, but a judicial error because the Court did not receive notice of the remand at the time of the dismissal. Based on the copy of the July 18, 2022 Order of Remand filed by Plaintiff, it appears that the Federal Court had sent notice to Spring Street Courthouse. However, whether the letter was lost in mail or not processed for other reasons, the Court did not receive the notice. Further, neither party informed the Court of the remand until recently on November 9, 2023. Thus, this is not a clerical error to amend via an order nunc pro tunc. 

However, CCP § 128(a)(8) provides that every court has the power to amend and control its process and orders so as to make them conform to law and justice. Additionally, the Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) The removal to Federal Court acts as a stay on the matter, and thus reinstatement of the action is not the equivalent to a re-filing of the case to trigger any statute of limitation issue. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356 (the state court's jurisdiction is suspended when the defendant seeking removal gives notice to the state court clerk, and it is reacquired when the district court clerk gives notice to the state court clerk in the form of a certified copy of the remand order.).) Further, there is still time to bring this matter to Trial. (CCP § 583.310.) 

 

Based on the foregoing, the dismissal is vacated and Plaintiff’s action is reinstated.   

 

Moving party is ordered to give notice.