JESUS CASTREJON VS TORRES NUNEZ ET AL

Motion to Set Aside Dismissal

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On March 8, 2017, Plaintiff Jesus Castrejon (“Plaintiff”) filed a complaint against Defendants Torress Nunez, Hamidreza Alaviharisi, Castle Iron Design, Inc., and Iron Castle, Inc. alleging negligence for an automobile collision that occurred on November 28, 2016.

On July 28, 2017, Defendants/Cross-Complainants Torress Nunez, Hamidreza Alaviharisi, Castle Iron Design, Inc., and Iron Castle, Inc. filed a cross-complaint against Cross-Defendant Dwayne Dunn alleging negligence and seeking contribution, indemnity, and declaratory relief.

On November 30, 2017, Cross-Defendant/Cross-Complainant Dwayne Dunn filed a cross-complaint against Defendants/Cross-Complainants/Cross-Defendants Torress Nunez, Hamidreza Alaviharisi, Castle Iron Design, Inc., and Iron Castle, Inc. alleging motor vehicle negligence, general negligence, and negligence per se and seeking indemnification and apportionment of fault.

On October 19, 2018, the Court dismissed the complaint with prejudice.

On December 18, 2018, the Court dismissed Cross-Defendant/Cross-Complainant Dwayne Dunn’s cross-complaint with prejudice.

On November 20, 2019, Cross-Defendant/Cross-Complainant Dwayne Dunn (“Moving Party”) filed a motion to set aside the December 18, 2018 dismissal pursuant to California Code Civil Procedure section 473.

PARTY’S REQUEST

Cross-Defendant/Cross-Complainant Dwayne Dunn (“Moving Party”) asks the Court to set aside the December 18, 2018 dismissal of his cross-complaint because the counsel who submitted the request for dismissal did not have authority to do so.

LEGAL STANDARD

“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).)  

“A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void: Once six months have elapsed since the 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.’”  (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496.)  “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.”  (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 (citation omitted).)  “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. (citations omitted).)

The judgment roll includes the following when the complaint is answered: “the pleadings, all orders striking out any pleading in whole or in part, a copy of the verdict of the jury, the statement of decision of the court, or finding of the referee, and a copy of any order made on demurrer, or relating to a change in parties, and copy of the judgment . . . .”  (Code Civ. Proc. ; 670, subd. (b).)

DISCUSSION

Moving Party’s counsel argues that the December 18, 2018 dismissal is void because Richardson, Fair, and Cohen represented Moving Party only in his capacity as a cross-defendant, and not as a cross-complainant at the time that the firm submitted the request for dismissal.  (Motion, p. 5:3-5:27.)  On November 30, 2017, Richardson, Fair, and Cohen represented Moving Party in answering a cross-complaint.  (El Dabe Decl., ¶ 7, Exh. 1.)  Another law firm, the Law Offices of Michael L. Yung, represented Moving Party in filing a cross-complaint at that time.  (El Dabe Decl., ¶ 8, Exh. 2.)

The Court finds the motion is properly granted.  Moving Party’s November 30, 2017 filings of both a cross-complaint and an answer to a cross-complaint by two separate law firms demonstrates that there was a clear division of labor in Moving Party’s legal representation.

Defendants/Cross-Complainants Torress Nunez, Hamidreza Alaviharisi, Castle Iron Design, Inc., and Iron Castle, Inc. correctly state that the Court is limited to viewing only the judgment roll in considering this motion because more than six months have passed since the dismissal was entered.  However, simply viewing Moving Party’s pleadings, which are part of the judgment roll, the Court can reasonably conclude that Moving Party had specific counsel for specific tasks.  Richardson, Fair, and Cohen’s assignment was to represent Moving Party as a cross-defendant, and the Law Offices of Michael L. Yung had exclusive authority to prosecute Moving Party’s cross-complaint. Richardson, Fair, and Cohen exceeded the authority it was given by Moving Party, which eviscerates the validity of the dismissal.   

Because the dismissal ender on December 18, 2018 is void on its face, the motion to set aside is properly GRANTED.

The Court sets aside the December 18, 2018 dismissal of Moving Party’s cross-complaint and schedules a trial setting conference in this case for January 21, 2020 at 8:30 a.m. in Department 4A in the Spring Street Courthouse.

Moving Party is ordered to give notice of this ruling.