Case Number: BC485428    Hearing Date: July 17, 2014    Dept: 34

Moving Party: Complainant Igor Daza (“Daza”)

Resp. Party: Defendant Los Angeles Community College District (“LACCD”)

Daza’s motion to set aside the dismissal is GRANTED.

PRELIMINARY COMMENTS:

On June 18, 2014, the Court heard Daza’s Request to File a Third Amended Complaint. The Court had issued a tentative decision to grant that motion. At the hearing on June 18, 2014, the LACCD raised the issue that the Court was without jurisdiction to hear the motion since it had previously struck the Third Amended Complaint and dismissed the cross-action. That argument had not been made in the LACCD’s opposition to Daza’s Request to File a Third Amended Complaint.

The court continued the hearing on Daza’s Request to allow both parties to submit supplemental briefing, which both parties have done.

The issue before the court today, however, is different. On June 25, 2014, Daza filed a motion for relief from dismissal under CCP §473(d) and/or §473(b). The Court clearly has jurisdiction to rule on a motion for relief from dismissal pursuant to CCP §473(b).

BACKGROUND:

Plaintiff commenced this action on 5/25/12. After the Court sustained a demurrer to the complaint, plaintiff filed a first amended complaint on 11/9/12 against defendants for: (1) negligence; (2) injuries to employee within the scope of employment; (3) negligent supervision; (4) negligent hiring/retention; (5) IIED; (6) sexual battery; (7) battery; (8) assault; (9) sexual harassment; (10) gender violence; (11) false imprisonment; (12) negligent sexual abuse; and (13) Civil Code section 51.7. Plaintiff was a student at a college within defendant LACCD’s district and alleges that she was sexually assaulted by defendant Igor Daza, a guidance counselor and advisor employed by LACCD.

Defendant Daza had filed a cross-complaint against LACCD. On 5/24/13, the Court sustained LACCD’s demurrer to the second amended cross-complaint, with leave to amend as to the first cause of action and without leave to amend as to the second through fourth causes of action. The Court ordered Daza to file an amended complaint by 7/31/13. Daza did not file a third amended cross-complaint (“TACC”) until 3/6/14. The third amended complaint asserts causes of action for statutory defense, statutory indemnity, and petition for writ of mandate.

LACCD filed a demurrer and motion to strike as to the TACC, which the Court heard on 4/22/14. The Court granted the motion to strike the entire TACC because Daza failed to file the TACC within the time allowed in the 5/24/13 order. Because it was a motion to strike, which was limited to the pleadings or judicially noticed items, the Court declined to consider extrinsic facts or evidence in ruling on the motion. The Court then dismissed the cross-action.

Plaintiff dismissed her complaint with prejudice on 5/27/14.

ANALYSIS:

Daza seeks to set aside the dismissal pursuant to Code of Civil Procedure section 473(d) or 473(b).

Section 473(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.” “It is the long-settled rule that courts of record in this state have inherent power to make a correction, nunc pro tunc or otherwise, of clerical errors and misprisions in their records, in order that such records conform to the facts and speak the truth.” (Carpenter v. Pacific Mut. Life Ins. Co. of California (1939) 14 Cal.2d 704, 707.) “It is settled by abundant authority in this state that the court has inherent power either on its own motion, or on ex parte application, or on notice, to set aside an order or judgment taken through its own inadvertence or mistake.” (In re Costa’s Estate (1951) 37 Cal.2d 154, 157.)

“[I]t is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did. An order made nunc pro tunc should correct clerical error by placing on the record what was actually decided by the court but was incorrectly recorded. It may not be used as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order to enter a new one.” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890-892.) “ ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered – not to make an order now for then, but to enter now for then an order previously made. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?’ ” (Estate of Careaga (1964) 61 Cal.2d 471, 474.) The trial court has the authority to determine whether the error was clerical or judicial. (Carpenter, 14 Cal.2d at pp. 708-709.)

In Robinson v. Southland Produce Co. (1931) 112 Cal.App. 106, the defendants appealed an order by the trial court vacating its order of dismissal and granting leave to amend. (Id. at p. 107.) The defendants argued that the trial court acted beyond its jurisdiction when it vacated the order of dismissal. (Id. at p. 108.) “An examination of the record in the instant case shows that there was no mistake or inadvertence on the part of the court in the legal sense, and that the order of dismissal was the order intended to be made; and while the court may have erred in the use of its discretion, there is no abuse of it.” (Ibid.) “The action of the court in our opinion being merely erroneous and not void, the motion to set aside the order of dismissal would seem to afford no basis for the order made.” (Id. at p. 109.)

Daza fails to establish that the dismissal of the cross-action was the result of a clerical, and not a judicial, mistake. Daza asserts that the “tenor of the Court’s comments” at the 4/22/14 hearing suggested that it intended to allow Daza to seek leave to amend. (See Motion, p. 5; Smith Decl., ¶ 14.) Daza does not point to any specific language from the Court to support this assertion. In the opposition, LACCD provides a copy of the transcript of the 4/22/14 hearing. During the hearing, the Court noted: “I think there are other procedures that you may well follow if you believe that the underlying order was invalid to vacate that order and we may go back to square one.” (Murphy Decl., Exh. 1, p. 14:2-5.) After the Court granted the motion to strike, LACCD’s counsel made a request to dismiss the cross action. (Id., p. 16:10-12.) The Court responded: “If the Court has stricken the third — well, I don’t think there’s anything left. The third amended complaint has been stricken. There’s no cross-action.” (Id., p. 16:13-15.) Counsel for the parties then made arguments. (Id., pp. 16:16-17:15.) The Court stated: “The Court is going to strike the third amended complaint and dismiss the cross-action. There’s nothing left if we don’t have a cross-action at this point.” (Id., p. 17:16-18.) This evidence shows that what was intended by the Court was dismissal of the cross-action. Therefore, the order of dismissal was not a clerical error, but was entered after a judicial determination. Thus, the Court may not vacate the order of dismissal based on section 473(d) or its inherent power to correct clerical mistakes.

Daza next argues that the dismissal should be set aside based upon the mandatory provision in Code of Civil Procedure section 473(b). Judges must vacate dismissals, default entries, and default judgments “whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney’s mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default.” (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927 [citing CCP §473(b)]. Accord Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258.) The mandatory relief provision of Section 473, based upon an attorney affidavit of fault, applies to a dismissal that is akin to a default. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 601 [lawyer’s failure to act timely]; In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1444 [counsel’s failure to appear at trial].)

“ ‘Although the language of the mandatory provision of section 473, subdivision (b), on its face, “affords relief from unspecified ‘dismissal’ caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ to undo dismissals of civil cases.” ’ [Citation.]” (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967.) The mandatory provision has been found to be inapplicable to a dismissal for failure to prosecute where the dismissal was not due to failure to oppose a motion to dismiss. (See Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1815-1824.)

Here, the action was dismissed following the granting of an opposed motion to strike. Daza opposed the motion and was present at the hearing when the request to dismiss was made. Therefore, this is not a situation where the dismissal was due to the failure to oppose a motion to dismiss, and the mandatory provision of section 473(b) does not apply.

Because the mandatory provision does not apply, the decision on whether to grant relief is discretionary. Under Code of Civil Procedure section 473, subd. (b), “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

The Court rejects LACCD’s argument that the discretionary relief provision also does not apply because the dismissal was not akin to a default. In support of this argument, LACCD cites to a footnote in Shipley v. Sugita (1996) 50 Cal.App.4th 320, a case which did not involve a motion to set aside a dismissal under section 473(b). (See id. at p. 323 [Shipley pertained to an appeal from an order of dismissal for failure of service under section 583.210].) Therefore, any language in Shipley pertaining to section 473(b) is merely dicta. (See Fireman’s Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1301 [“[G]eneral observations unnecessary to the decision … are dicta, with no force as precedent.”].) Moreover, in the cited footnote in Shipley, the court relied on Graham v. Beers (1994) 30 Cal.App.4th 1656 to support its conclusion that a plaintiff may not seek discretionary relief under section 473 unless he or she had failed to oppose a motion to dismiss. (See Shipley, 50 Cal.App.4th at p. 328, fn. 5.) Graham does not so hold; in Graham, the court considered a request for relief under the mandatory, not discretionary, provision. (See Graham, 30 Cal.App.4th at p. 1659 [the moving parties contended that they were entitled to mandatory relief].) LACCD provides no other authority which held that relief from a dismissal under the discretionary provision in section 473 may only be obtained where the moving party failed to oppose a motion to dismiss.

Therefore, it must be determined whether the dismissal was caused by Daza’s mistake, inadvertence, surprise, or excusable neglect. The action was dismissed because the third amended cross-complaint was stricken, which occurred because the record showed that Daza failed to file the TACC within the time allotted after the Court sustained the demurrer to the second amended cross-complaint. Thus, it was the failure to timely file the TACC that ultimately caused the dismissal. Daza’s counsel declares that LACCD’s counsel had notified him prior to the demurrer to the SACC that the hearing on the demurrer was to be continued and, as a result, Daza’s counsel did not attend the hearing. (Smith Decl., ¶ 6.) Daza points to the fact that the certificate of mailing of the order on the demurrer, after it was taken under submission, indicates that it was served on counsel for plaintiff and LACCD, but not on Daza’s counsel. (Id., ¶ 9, Exh. B.) Daza’s counsel states that she became aware of the 5/24/13 minute order on 7/11/13 when LACCD’s counsel casually mentioned it and sent an e-mail of the minute order. (Id., ¶ 10, Exh. B.) Daza’s counsel did not agree to electronic service and states that, as of the date of the declaration, she had never received formal notice of the ruling on the SACC. (Id., ¶ 10.) Counsel declares that, in light of the fact that she was not formally served with the notice of ruling, she believed that Daza’s time to file his TACC after the sustaining of the demurrer to the SACC had never expired. (Id., ¶ 19.)

Excusable neglect exists where counsel acted as a reasonably prudent person would under the circumstances. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Daza’s counsel’s belief that the time to file the TACC had not expired constitutes excusable neglect. “When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes.” (Code Civ. Proc., § 472b.) “Even if the judge makes the ruling in open court before both counsel, the time within which to answer or amend does not begin to run until the prevailing party sends out a formal Notice of Ruling (unless waived). Thus, if the prevailing party forgets or delays sending out the requisite notice, it operates as an automatic extension of time to the other side!” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 7:135.)

LACCD points to Cal. Rules of Court rule 3.1109(c) to argue that the failure of the clerk to give notice of the ruling did not extend the time to file an amended cross-complaint. “When the court rules on a motion or makes an order or renders a judgment in a matter it has taken under submission, the clerk must immediately notify the parties of the ruling, order, or judgment. The notification, which must specifically identify the matter ruled on, may be given by mailing the parties a copy of the ruling, order, or judgment, and it constitutes service of notice only if the clerk is required to give notice under Code of Civil Procedure section 664.5.” (Cal. Rules of Court, rule 3.1109(a).) “The failure of the clerk to give the notice required by this rule does not extend the time provided by law for performing any act except as provided in rules 8.104(a) or 8.824(a).” (Id., rule 3.1109(c).) LACCD does not provide, and the Court has not found, any case law stating that this rule excuses the language in Code of Civil Procedure section 472b that the time to amend “runs from the service of notice of the decision or order.” This Court believes that such a ruling in this case would not be in the interests of justice.

Accordingly, the failure to file the TACC earlier was due to Daza’s counsel’s reasonable belief that the time to amend had not yet commenced. Because the failure to file the TACC earlier was the ultimate cause of the dismissal, the Court finds that the dismissal was due to Daza’s excusable neglect. T

The motion to set aside dismissal is GRANTED.