Case Number: KC045216    Hearing Date: November 07, 2014    Dept: J

Re: Badrudin Kurwa v. Physician Associates of the Greater San Gabriel Valley, etc., et al. (KC045216)

MOTION TO SET ASIDE VOID CONDITIONS IN STIPULATION AND ORDER UNDER CCP § 473(d)

Moving Party: Plaintiff Badrudin Kurwa

Respondents: Defendants Mark Kislinger, et al.

POS: Moving OK; Opposing OK

Plaintiff Badrudan Kurwa (“Plaintiff”) moves for an order voiding the conditions in the Stipulation of the parties entered into on March 17, 2010 (“Stipulation”). The motion is made on the grounds that the conditions set forth in the Stipulation should be considered void due to impossibility pursuant to CC § 1441 and CCP §473(d).

PERTINENT PROCEDURAL HISTORY:

On March 2, 2010, at a Final Status Conference, this court heard and ruled upon various motions in limine filed by Defendants. Based on those rulings, Plaintiff conceded that he could not proceed on his derivative and individual causes of action for breach of fiduciary duty, nor for an accounting based on such a breach, and the court dismissed those three causes of action. The Plaintiff also abandoned his causes of action for fraud, breach of contract, and breach of the contractual duty of good faith and fair dealing, and noted that his cause of action for removal of a director was moot. The court dismissed these causes of action with prejudice.

The parties then stipulated to dismiss their remaining claims for defamation [in the Complaint and the Cross-Complaint] without prejudice and waive the applicable statute of limitations. The Stipulation also provided that if the Judgment in this matter was affirmed on appeal, then neither party would have the right to reinstitute their defamation claims. The Plaintiff then appealed the judgment of dismissal.

The Court of Appeal held that the judgment was final and appealable, reasoning that because the defamation counts had been dismissed, they were no longer pending between the parties and the trial court had no jurisdiction to proceed further on any cause of action. On the merits, the Court of Appeal determined the court had erred in ruling defendant owed plaintiff no fiduciary duty on the facts alleged and reversed the judgment of the superior court.

The Supreme Court, however, granted a hearing and reversed the Court of Appeal, holding that the judgment was not final for purposes of appeal. Specially, the Supreme Court found that an appeal cannot be taken from a stipulated judgment that resolves some of the parties’ claims when the parties have dismissed the remaining claims without prejudice and entered into a stipulation that contemplates later litigation of the dismissed claims. “To permit this kind of manipulation of appellate jurisdiction — in effect, allowing the parties … to designate a substantively interlocutory judgment as final and appealable — would be inconsistent with the one final judgment rule.” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1107 — “California law provides no case-by-case efficiency exception to the one final judgment rule for appealability.”)

On August 26, 2014, the court heard and denied Plaintiff’s motion to re-set the case for final status conference and trial. Specifically, Plaintiff sought to either: (1) rescind the stipulation and order concerning the defamation claims and set the case for trial; or (2) re-set the full case for trial setting conference on the court’s own motion. The court found that it not have jurisdiction to set aside the order dismissing the defamation claims and/or to reset the case for trial.

PLAINTIFF’S MOTION:

Plaintiff now moves to set aside what he contends are “void” conditions in the Stipulation and Order pursuant to CCP § 473(d) and CC § 1441. Specifically, Plaintiff contends as follows:

Under CCP § 473(d), the court has the authority to set aside a void order “at any time.” CC § 1441 provides that “[a] condition in a contract, the fulfillment of which is impossible.., within the meaning of the article on the object of contracts… is void.” The Supreme Court’s decision in this matter has now made it clear that the conditions, on which the operation of the parties’ Stipulation of March 17, 2010 depends, are now impossible to fulfill. This motion is being brought, therefore, to have such conditions set aside as void.

The Stipulation provides that both parties will dismiss their defamation claims without prejudice, and agree that the statute of limitations is to be waived as to both. The conditions therein provide however, that the defamation claims may be reinstituted, only if the judgment in this case is reversed on appeal. The very basis of the operation of the Stipulation, therefore, depends upon there being “an appeal.”

The bar of impossibility can be lifted, and the case allowed to go forward to appeal, if the term of the agreement to waive the statute of limitations is set aside. In fact, Plaintiff has indicated his willingness to dismiss his defamation claim with prejudice, while Defendant has not.

An alternative approach to making the Stipulation effective would be to remove, not the agreement to waive the statute, but the term which conditions the reinstitution of the defamation causes of action on the success of the appeal. Such removal would in fact make it possible both for the appeal to go forward and for the defamation causes of action to be tried.

Without action by either the trial court or the appellate court, the limbo status of the “Judgment” serves neither the cause of this particular case, nor clarifies the law in situations such as this.

DEFENDANTS’ OPPOSITION:

Defendants oppose the motion on the grounds that the court lacks jurisdiction to grant Plaintiff’s requested relief; Plaintiff’s motion is nothing more than untimely motion for reconsideration that is not supported by any new facts or law; and that even if the court decides that it has jurisdiction to hear this motion, the motion should still be denied, as the law cited by Plaintiff is inapplicable, and the equitable relief Plaintiff claims he is owed can only be achieved at the expense and prejudice of Defendants. Specifically, Defendants contend as follows:

This court lacks jurisdiction to grant Plaintiff’s requested relief. The initial judgment of the trial court still stands, and this court has no jurisdiction to revisit that judgment, as the time for reconsideration and/or new trial has long since elapsed. The court already ruled that it had no jurisdiction when Plaintiff brought his previous motion to re-set the matter for trial.

Plaintiff’s motion is nothing more than a veiled motion for reconsideration of this court’s ruling denying Plaintiff’s request to re-set this matter for trial. The motion, however, is untimely and not based on any new law or facts.

The subject stipulation and order should not be voided. It is important to remember that the parties are in their present position because of Plaintiff’s former counsel’s advocacy. Plaintiff voluntarily elected to abandon his case and elected to enter into a stipulation with Defendants.

If the court decides that it has jurisdiction to hear this motion, the motion should still be denied, as the law cited by Plaintiff is inapplicable, and the equitable relief Plaintiff claims he is owed can only be achieved at the expense and prejudice of Defendants. CCP § 473(d) does not permit the court to change substantive aspects of orders.

Further, Plaintiff’s motion is not timely. “A motion to vacate a judgment on the ground that it is void is timely if made within a reasonable time [Citation], which has been determined to be any time within two years of the entry of the judgment.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

Further, Plaintiff’s proposed solution pertains to judicial decisions, not clerical errors. The judgment at issue cannot be set aside because it is not void.

CC § 1441 does not apply because the conditions of the Stipulation and Order are not impossible to fulfill. Pursuant to the terms of the Stipulation, the parties clearly contemplated the possibility that neither of them would be able to reinstitute their defamation case.

Defendants have relied and acted upon the Stipulation and Order and would incur substantial, undue prejudice if the Stipulation were voided. Defendants’ defamation claim had substantial merit and Defendants were willing to forgo their defamation claim only because the remainder of the case was being dismissed. Plaintiff’s proposal defeats this purpose by allowing Plaintiff to potentially reinstitute his non-defamation claims and forcing Defendants to give up their defamation claim. Plaintiff then proposes that the court void the conditions upon which the defamation claims can be reinstituted. However, these conditions are not void, as the inability to re-institute the defamation claims was a foreseen possibility explicitly stated in the stipulation. Simply voiding the condition of the stipulation does not produce an equitable result. Plaintiff cannot now claim that the stipulation that he proposed for his own benefit is now somehow unfair to him.

MOTION FOR RECONSIDERATION:

A motion for reconsideration must be: (1) made to the same judge who made the original order; (2) made within 10 days after service of the notice of entry of the order or ruling; (3) based on new or different facts, circumstances or law; and (4) accompanied by an affidavit (declaration) stating what previous “application” (demurrer) was made, the ruling thereon, and what new or different facts, circumstances or law are claimed to exist. (CCP § 1008(a).) These requirements are jurisdictional. (CCP § 1008(e).)

Through this motion, Plaintiff is essentially seeking the same relief sought in his prior motion heard on August 26, 2014. This motion, however, is not timely and/or based on new or different facts, circumstances or law.

CLERICAL ERROR:

“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.” (CCP § 473(d).)

A court may correct a clerical error in a judgment at any time. (Ames v. Paley (2001) 89 Cal.App.4th 668, 672.) A clerical error is an inadvertent error in entering or recording the judgment, as opposed to a judicial error in rendering the judgment. (In re Candelario (1970) 3 Cal.3d 702, 705.) Judicial error occurs when the judgment entered is the judgment the court intended to render, even though it was entered in error. (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117.)

Here, the order entered was the order intended to be entered by the parties pursuant to the Stipulation; there was no “clerical” error in the order. CCP § 473(d) does not permit the court to change substantive aspects of orders.

VOID ORDER:

Generally, relief from a void judgment (in excess of court’s subject matter jurisdiction or entered without personal jurisdiction over defendant) may be sought at any time. (CCP § 473(d); Plotitsa v. Super.Ct. (Kadri) (1983) 140 Cal.App.3d 755, 761 — no time limit where default void on face of the record when entered.)

Where a motion to vacate is made more than six months after entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face. (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440.)

Here, the order is not void on its face. This motion, however, is brought more than four years after the entry of the order. Thus, the motion is untimely.

Accordingly, the motion is denied.