Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Luis Vargas, Judge, Super. Ct. No. GIC859644
HALLER, J.
The California Department of Fish and Game (Department) appeals from an order setting aside a judgment that had dismissed the Department from an action filed against the Department and the California Commission of Fish and Game (Commission). The judgment dismissing the Department was entered after the trial court sustained a demurrer without leave to amend in the Department's favor. For reasons we shall explain, we reverse the order setting aside the judgment of dismissal.
The Commission is not a party on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Because the action before us is at the demurrer stage, we set forth the facts as pleaded in the complaint. (See Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1129.)
Demurrer in Favor of the Department
Lindy O'Leary worked as a volunteer for the Wildlife Center, a wildlife rehabilitation organization. Under the auspices of the Wildlife Center, in 1994 she began providing care and shelter for certain wildlife (including "non-releasable" birds) at her residence in Poway. In 2000 through 2001, the Wildlife Center discontinued its wildlife rehabilitation program. In 2004, the Department seized the animals from O'Leary because she did not have a current permit. Thereafter, O'Leary and the Wildlife Center (collectively, O'Leary) applied to the Department for a permit. The Department denied her permit application, and O'Leary sought review before the Commission. After an administrative hearing, the Commission upheld the Department's denial of O'Leary's request for a permit.
Seeking judicial review of the administrative decision, O'Leary filed a lawsuit in superior court against the Department and the Commission. In a second amended pleading filed in July 2006 (the Second Amended Pleading) O'Leary set forth (1) an equitable estoppel cause of action arising from the Department's conduct prior to the permit denial, and (2) a writ of mandate petition under Code of Civil Procedure section 1094.5 challenging the denial of her permit application. The Department and the Commission were both named as defendants/respondents for the estoppel cause of action and the writ petition.
Subsequent statutory references are to the Code of Civil Procedure.
O'Leary's first amended pleading filed in March 2006 included the writ petition and a declaratory relief cause of action. The Department and the Commission demurred to the first amended pleading, and the trial court granted the demurrer as to the declaratory relief cause of action with leave to amend. O'Leary filed the Second Amended Pleading, which essentially reiterated the allegations in the first amended pleading but changed the declaratory relief cause of action to an equitable estoppel cause of action.
The Department and the Commission, represented by the Attorney General, demurred to the Second Amended Pleading. In the demurrer, these parties contended that (1) a cause of action for equitable estoppel could not be stated against the Commission or the Department because equitable estoppel allegations could only be adjudicated by means of a section 1094.5 writ petition, and (2) the writ petition could be brought only against the Commission, not the Department. The Department demurred to the entire Second Amended Pleading, whereas the Commission demurred only to the estoppel cause of action. The scope of the Department's demurrer, applying to the entire pleading, was expressly set forth in the demurrer and in the points and authorities in support of the demurrer.
The demurrer stated: "The Department of Fish and Game demurs to the entire SAP [Second Amended Pleading] on the ground that it fails to state facts sufficient to constitute a cause of action against the Department of Fish and Game." (Italics added.) The points and authorities stated: "[T]he demurrer of the Department of Fish and Game to the entire Second Amended Complaint must be sustained without leave to amend, and Respondent Department must be dismissed with prejudice and awarded its costs." (Italics added.)
Responding to the Attorney General's argument challenging her equitable estoppel claim, O'Leary explained that she included the claim as a separate cause of action because the issue had been presented, but not adjudicated, at the administrative hearing. She stated that the administrative law judge confined the administrative hearing to the issue of whether she qualified for a permit, and at the administrative hearing she had reserved her rights to later present her equitable estoppel argument. On the merits of her estoppel claim, O'Leary contended the Department had misinformed her about the permit requirements and an amnesty program and had misled her to believe she did not need a permit.
After a hearing on September 25, 2006, the trial court issued a minute order (1) overruling the demurrer as to the Commission, and (2) sustaining the demurrer without leave to amend as to the Department. Regarding the Commission, the court ruled that O'Leary had pleaded sufficient facts to state a cause of action for equitable estoppel. Regarding the Department, the court ruled: "The demurrer of the [Department] is sustained without leave to amend. Petitioners have failed to allege facts sufficient to state a claim against [the Department]."
Judgment Dismissing the Department from the Action
On September 26, 2006, the Attorney General mailed O'Leary a notice of the demurrer ruling. The notice described the court's ruling as "sustain[ing] the demurrer of [the Department] to the Second Amended Complaint for Equitable Estoppel and Writ of Administrative Mandate . . . without leave to amend on the ground that the Second Amended Complaint . . . does not state facts sufficient to constitute a cause of action." (Italics added.) Also on September 26, 2006, the Attorney General mailed O'Leary a proposed judgment of dismissal, stating: "The Court having sustained the demurrer of [the Department] to the Second Amended Complaint for Equitable Estoppel and Writ of Administrative Mandate . . . without leave to amend, [¶] . . . this action is dismissed with prejudice as to [the Department], only . . . ." (Italics added.) Along with the proposed dismissal judgment, the Attorney General included a declaration citing case authority providing that in the absence of a request for reconsideration, the sustaining of a demurrer without leave to amend entitles the defendant to entry of a dismissal judgment " 'as a matter of course' " and without a formal motion. After service of the notice of the demurrer ruling and the proposed dismissal judgment, O'Leary made no request that the trial court reconsider its ruling.
On October 13, 2006, the Attorney General mailed O'Leary essentially the same proposed judgment dismissing the Department from the action as it had mailed earlier. On October 18, 2006, the trial court signed the judgment and the judgment was file-stamped by the court clerk. On October 25, 2006, the Attorney General mailed O'Leary, and filed in superior court, a notice of entry of judgment, stating that judgment in favor of the Department was entered on October 18, 2006. A copy of the executed, file-stamped October 18, 2006 judgment was attached to the notice of entry of judgment.
Meanwhile, on October 5, 2006, the Attorney General filed an answer, on behalf of the Commission only, to the Second Amended Pleading setting forth the equitable estoppel cause of action and writ petition. The Department did not file an answer.
Events After the Judgment of Dismissal
In a letter dated November 14, 2006, O'Leary, who intended to initiate discovery, asked the Attorney General if it would accept service of deposition subpoenas directed at the Department; if not, O'Leary stated she would serve the Department in Sacramento. By letter dated November 16, 2006, the Attorney General responded that because the Department was no longer a party to the action, it was not authorized to accept service for the Department. O'Leary did not send any communication to the Attorney General refuting its claim that the Department was no longer a party.
In January 2007, O'Leary served the deposition subpoenas on the Department in Sacramento requesting discovery from the Department pertinent to her equitable estoppel cause of action. O'Leary mailed the Attorney General copies of the deposition subpoenas. The proof of service for the copies sent to the Attorney General characterized the Department as a "nonparty" deponent. A January 8, 2007 letter from O'Leary to the Attorney General advised the Attorney General of the dates O'Leary was available to conduct these depositions "[i]n the event the Department appoints [the Attorney General] [its] attorney in this matter."
In January 2007, the Attorney General sent objections to, and filed a motion to quash, O'Leary's subpoenas. The Attorney General contended the requested discovery was irrelevant because the Department was no longer a party to the action, and noted that O'Leary had not appealed the Department's dismissal. Further, even though the trial court had overruled the Commission's demurrer to the equitable estoppel cause of action, the Attorney General continued to argue that an equitable estoppel cause of action could not be maintained against the Commission, and that the court's review was confined to the administrative record.
After service of a notice of entry of judgment or a file-stamped copy of the judgment, a party has 60 days to file an appeal. (Cal. Rules of Court, rule 8.104(a).) Here, the Attorney General mailed the notice of entry of judgment on October 25, 2006; thus, O'Leary's right to file an appeal expired on December 24, 2006.
Motion to Set Aside Judgment Dismissing the Department from the Action
After the Attorney General challenged O'Leary's subpoenas on the basis of the Department's dismissal from the action, O'Leary filed a motion to set aside the judgment of dismissal. In her February 2007 set-aside motion, O'Leary asserted the Department was still a party to the action because the court had sustained the Department's demurrer regarding only the equitable estoppel cause of action. O'Leary requested relief under various statutes, including section 473, and under the court's inherent equitable powers. The trial court granted the set aside motion under section 473. The Attorney General challenges this ruling in this appeal.
In her communications to the Attorney General, O'Leary also noted that, regardless of the Department's status, the Commission remained a party for both the equitable estoppel cause of action and the writ petition because the court's demurrer ruling found an equitable estoppel cause of action could be pursued against the Commission.
In her set-aside motion, O'Leary set forth several grounds to justify her request for relief. First, she asserted the dismissal judgment was void on its face because it was inconsistent with the court's demurrer ruling, which she maintained addressed only the estoppel cause of action. According to O'Leary, the court sustained the Department's demurrer without leave to amend as to the estoppel cause of action, but "[n]owhere in the Court's Final Order does the Court sustain Defendants' Demurrer as to the second cause of action for Writ of Administrative Mandate . . . ."
Second, O'Leary argued that her due process rights were violated because the Department had not obtained the dismissal judgment after a noticed motion or ex parte notice. Third, she raised additional procedural contentions, including a claim that she did not discover the judgment of dismissal had been entered until January 2007, when she received the Attorney General's responses to her subpoenas. Explaining this latter claim, O'Leary's counsel filed a declaration stating that although she had received the Attorney General's notice of demurrer ruling and proposed dismissal judgment, she had not received the notice of entry of the dismissal judgment nor the court-signed, file-stamped dismissal judgment. O'Leary contended the procedural irregularities deprived her of an opportunity to present her contention that the court did not sustain the Department's demurrer as to the entire pleading.
Opposing the motion to set aside the dismissal judgment, the Attorney General argued the dismissal judgment was consistent with the court's demurrer ruling, and was properly entered following the sustaining of the demurrer without leave to amend. The Attorney General contended the Department had demurred to the entire Second Amended Pleading, and the trial court had sustained the Department's demurrer without leave to amend. The Attorney General asserted that the record showed that O'Leary understood the demurrer ruling removed the Department as a party from the lawsuit, and that O'Leary knew the Attorney General was submitting a dismissal judgment to the court. Further, the proof of service dated October 25, 2006, showed O'Leary had been served with the notice of entry of the dismissal judgment. The Attorney General noted that O'Leary took no steps to challenge the demurrer or dismissal judgment such as filing a motion for reconsideration or an appeal.
Trial Court's Rulings
On March 16, 2007, the trial court posted a tentative written ruling which (1) rejected O'Leary's argument that the dismissal judgment was facially void because it was inconsistent with the demurrer ruling, but (2) nevertheless granted O'Leary's motion to set aside the dismissal judgment based on a sua sponte reconsideration of the Department's demurrer. Rejecting O'Leary's claim that the judgment was void on its face, the court noted that the Department's demurrer was a demurrer to the entire pleading, and that the court had sustained the Department's demurrer without leave to amend as to the entire pleading. However, the court indicated that it had elected to sua sponte reconsider the demurrer and, contrary to its previous order, now ruled that (1) the Department's demurrer to the equitable estoppel cause of action was overruled for the same reasons that it was overruled as to the Commission in the previous demurrer ruling, and (2) the Department's demurrer to the writ petition was sustained without leave to amend. The court also denied the Attorney General's motion to quash the subpoenas, finding the requested discovery was relevant to the equitable estoppel cause of action.
At the hearing on O'Leary's set-aside motion, the Attorney General argued that the court was without jurisdiction to reconsider the demurrer ruling because the judgment of dismissal had been entered. The court took the matter under submission, stating it would evaluate whether it had jurisdiction to reconsider the demurrer ruling.
In a final order rendered on April 3, 2007, the court granted O'Leary's motion to set aside the dismissal judgment, but on different grounds than those set forth in its tentative ruling. The court reiterated that the judgment was not facially void because the judgment was in conformance with the court's original ruling sustaining the Department's demurrer without leave to amend; however, the court deleted any reference to sua sponte reconsidering its original demurrer ruling. Instead, the court set aside the dismissal judgment under section 473, subdivision (b) based on a finding that O'Leary's counsel's declaration showed she was "mistaken as to the scope of the previous ruling on the demurrer." The court set a status conference, and deferred ruling on the Attorney General's motion to quash the subpoenas until after the status conference.
DISCUSSION
Preliminarily, we note the narrow scope of the issues presented in this appeal. The Attorney General filed this appeal from the trial court's order setting aside the judgment dismissing the Department from the action. This appeal does not concern the issues of: (1) whether the trial court properly overruled the demurrer as to the Commission regarding the equitable estoppel cause of action; (2) whether the trial court properly sustained the demurrer without leave to amend as to the Department regarding both the equitable estoppel cause of action and the writ petition; or (3) whether the trial court had jurisdiction to reconsider on its own motion its demurrer ruling after entry of the dismissal judgment so as to find an equitable estoppel cause of action had been stated against the Department. Rather, the issue before us is whether the record supports the trial court's ruling setting aside the judgment dismissing the Department from the action.
The order overruling the Commission's demurrer may be challenged on appeal after a final judgment as to the Commission. (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1151.) The order sustaining the demurrer without leave to amend as to the Department was appealable following the entry of the dismissal judgment (Conley v. Roman Catholic Archbishop, supra, 85 Cal.App.4th at p. 1130); no such appeal was filed here. The issue of whether the trial court had jurisdiction to reconsider its demurrer ruling after entry of the dismissal judgment is not before us because the court did not adhere to its tentative ruling engaging in the reconsideration.
The Record Does Not Support the Finding that O'Leary's Counsel Misunderstood the Demurrer Ruling so as to Warrant Setting Aside the Dismissal Judgment
Under section 473, subdivision (b), a trial court may provide relief from a judgment taken against a party because of the party's mistake, inadvertence, surprise, or excusable neglect. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254.) Here, the trial court found that the dismissal judgment should be set aside because O'Leary's counsel's declaration indicated she was mistaken as to the scope of the demurrer ruling pertaining to the Department. We review the trial court's ruling under section 473 for abuse of discretion. (Zamora, supra, at p. 257.) We conclude the record does not support the court's finding, and accordingly the court erred in relying on this finding to set aside the judgment.
First, in the declaration from O'Leary's counsel (Attorney Robyn Ranke), submitted in support of the motion to set aside the dismissal judgment, Attorney Ranke makes no express or implied statement that she thought the Department was still in the action. Rather, Attorney Ranke's declaration merely delineates her claims that she received the notice of the demurrer ruling and the proposed dismissal judgment, but she never received the notice of entry of judgment or the court-signed, file-stamped dismissal judgment. The fact that Attorney Ranke claimed not to have known that a final judgment of dismissal had been entered does not reflect that she thought the demurrer ruling did not sustain the Department's demurrer to the entire pleading.
In her memorandum of points and authorities in support of her motion to set aside the dismissal judgment, Attorney Ranke did argue that she believed the Court's sustaining of the demurrer regarding the Department pertained only to the equitable estoppel cause of action. However, she included no such statement in her declaration under penalty of perjury.
Second, all the other information in the record points to the conclusion that Attorney Ranke understood that the demurrer ruling as to the Department pertained to the entire pleading and thus effectively removed the Department from the action. Attorney Ranke acknowledged that she received the Attorney General's September 2006 notice of demurrer ruling, which explicitly stated the Department's demurrer was sustained as to "the Second Amended Complaint for Equitable Estoppel and Writ of Administrative Mandate." Further, Attorney Ranke acknowledged that she twice received the Attorney General's proposed judgment dismissing the Department from the action, sent in September and October 2006. Attorney Ranke never contacted the Attorney General or the court to object to these clear communications that the Department had been removed from the action, and she has proffered no explanation as to why she failed to object. Attorney Ranke's failure to declare under penalty of perjury that she misunderstood the meaning of the demurrer, and her failure to explain why she did not object to documents received by her plainly reflecting the Department's anticipated dismissal, compel the conclusion that she understood the scope of the demurrer.
Attorney Ranke's communications and management of the case after the sustaining of the demurrer further buttress this inference. In November 2006, Attorney Ranke asked the Attorney General if it would accept service of discovery for the Department; this request would not have been necessary if Attorney Ranke thought the Department was still a party to the action. When the Attorney General sent a responding letter stating the Department was no longer a party, Attorney Ranke did not send correspondence disagreeing with this statement. Thereafter, in January 2007 Attorney Ranke sent copies of the deposition subpoenas to the Attorney General, characterizing the Department as a "nonparty" deponent, and advised the Attorney General of dates she was available to take the depositions in the event the Attorney General was appointed to represent the Department at these depositions. It was not until the Attorney General challenged the subpoenas on the basis that the Department was no longer a party that Attorney Ranke first asserted the Department was still a party to the action as to the writ petition. However, Attorney Ranke's actions up to this point, which assumed the Department was not a party, belie her claim that she thought the Department was still a party.
O'Leary argues that the record supports a finding that she thought the demurrer ruling did not apply to the Department as to the writ petition because (1) the demurrer order only addresses the equitable estoppel cause of action; and (2) the demurrer order fails to provide a statement of grounds regarding the sustaining of the demurrer as to the writ petition. Although it is true that the demurrer order only references the estoppel cause of action as to the Commission, this makes sense because the Commission did not demur to the writ petition. In contrast, as to the Department, the demurrer order states that the demurrer is sustained without leave to amend because of the failure to allege facts sufficient to state a claim against the Department. Because the Department demurred to the entire pleading—which was expressly spelled out in the demurrer itself and in the points and authorities in support of the demurrer—it is evident that the court's ruling sustaining the Department's demurrer applied to the entire pleading. As set forth above, the record shows that Attorney Ranke understood this.
The trial court's statement that the plaintiff failed to allege facts sufficient to state a claim against the Department was a sufficient statement of grounds; the trial court was not required to recite the details supporting its ruling. (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 275.)
The record does not support the finding that Attorney Ranke misunderstood the scope of the demurrer ruling. Accordingly, the trial court's order setting aside the dismissal judgment on this basis cannot be sustained.
The Record Does Not Show Notice or Hearing Deficiencies Warranting Setting Aside the Dismissal Judgment
Likewise, the record does not support O'Leary's challenge to the dismissal judgment based on notice deficiencies. O'Leary asserts the dismissal judgment was properly set aside because entry of the judgment was not preceded by a noticed motion or ex parte notice and an opportunity to appear. O'Leary is mistaken because (1) there is no formal notice requirement for a dismissal after the sustaining of demurrer to a complaint, and (2) the ex parte notice requirement attendant to a dismissal after a demurrer sustained with leave to amend does not apply to a demurrer sustained without leave to amend.
Section 581, subdivision (f)(1) provides that after a demurrer to a complaint is sustained without leave to amend, the court may dismiss the complaint when "either party moves for dismissal." (Italics added.) Likewise, section 581, subdivision (f)(2) authorizes dismissal when either party "moves" for dismissal after a demurrer to a complaint is sustained with leave to amend and the plaintiff fails to timely amend. The statute does not define the term "moves." However, in the context of the sustaining of a demurrer with leave to amend, case authority and the California Rules of Court have effectively defined the term as not requiring a formal noticed motion. In the context of a demurrer sustained with leave to amend, the defendant must provide ex parte notice in compliance with the California Rules of Court—but not a noticed motion—prior to securing a dismissal judgment. (Cal. Rules of Court, rule 3.1320(h); Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 967, 977-978; see Sadler v. Turner (1986) 186 Cal.App.3d 245, 250.) The rationale for allowing ex parte notice without a noticed motion is that when a demurrer is sustained with leave to amend, the plaintiff has already had a full hearing on the merits and "it is self-evident that the defective complaint will be dismissed in the event no amended pleading is forthcoming." (Sadler, supra, 186 Cal.App.3d at p. 250, fn 6; Wilburn v. Oakland Hosp. (1989) 213 Cal.App.3d 1107, 1110.) Because the sustaining of a demurrer without leave to amend completely adjudicates the parties' rights, there is even less need for a noticed motion after a demurrer is sustained without leave to amend. Accordingly, the Attorney General was not required to file a noticed motion prior to obtaining the dismissal judgment after the demurrer was sustained without leave to amend.
Subsequent references to rules are to the California Rules of Court.
An ex parte application requires notice "no later than 10:00 a.m. the court day before the ex parte appearance . . . ." (Rule 3.1203(a).) A noticed motion requires 16 days' notice before the hearing. (§ 1005, subd. (b).)
Moreover, the Attorney General was not required to give O'Leary ex parte notice and an opportunity to appear as defined in the California Rules of Court (see fn. 11, ante) prior to entry of the dismissal judgment following the sustaining of the demurrer without leave to amend. Unlike the situation when a demurrer is sustained with leave to amend, when a demurrer to a complaint is sustained without leave to amend the trial court has finished adjudicating the matter. It is well-established that the sustaining of a demurrer to a complaint without leave to amend entitles the defendant to a dismissal judgment. "It is settled that '[w]hen a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.'" (Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580.) As stated in Berri v. Superior Court (1955) 43 Cal.2d 856, 860: "Ordinarily, in the absence of a request for a reconsideration, after a demurrer is sustained without leave to amend . . . no formal motion to dismiss the action is necessary. The entry of a judgment of dismissal follows as a matter of course." (Italics added.) When a demurrer to a complaint is sustained without leave to amend, the plaintiff's rights are fully adjudicated at the time of the demurrer hearing, and there is nothing left to adjudicate at the time of the request for a dismissal judgment. Thus, for purposes of a dismissal following the sustaining of a demurrer to a complaint without leave to amend, the statement in section 581, subdivision (f)(1) that either party must "move[]" for dismissal simply requires a request to the court for a dismissal.
O'Leary contends that formal or ex parte notice was necessary to give her an opportunity to raise her claim that the Attorney General had misinterpreted the scope of the ruling sustaining the Department's demurrer. The contention is unavailing. O'Leary could have raised this claim by objecting to the notice of demurrer ruling and the proposed dismissal judgment when she received these documents from the Attorney General. Additionally, O'Leary's motion to set aside the dismissal judgment provided a forum to evaluate whether the dismissal judgment was consistent with the demurrer ruling (which it was).
The manner in which the dismissal judgment was entered was not procedurally deficient and, in any event, was accompanied by clear notice to O'Leary. The trial court issued its original demurrer order on September 25, 2006. On September 26, 2006, the Attorney General mailed O'Leary a notice of the demurrer ruling. If O'Leary believed she had grounds to request reconsideration of the demurrer ruling, she had the option of exercising her right to do so following the demurrer ruling. (§§ 1008, subd. (a), 1013, subd. (a) [party has 10 days to file reconsideration motion after service of notice of entry of order, plus five days if service is by mail].) She did not do so. Additionally, on September 26, 2006, and again on October 13, 2006 (which was 17 days after the service of the demurrer order), the Attorney General mailed O'Leary a proposed dismissal judgment, which O'Leary acknowledges that she received. The documents sent to O'Leary on September 26, 2006, included a declaration from the Attorney General explicitly stating that it was entitled to a dismissal of the Department "'as a matter of course.'" O'Leary was given repeated notice that a dismissal judgment was forthcoming, and at any point she could have suggested to the court that it reconsider its demurrer ruling. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1103-1109 [regardless of party's compliance with section 1008, court has inherent power to reconsider interim ruling].) In short, the manner in which the Attorney General secured the dismissal judgment was consistent with the governing law, did not interfere with O'Leary's opportunity to request reconsideration of the demurrer ruling, and provided ample notice to O'Leary.
As noted, given that the trial court did not adhere to its tentative ruling reconsidering the demurrer on its own motion, this appeal does not present the issue of whether the trial court had jurisdiction to reconsider the demurrer after entry of the dismissal judgment. (See Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236-1238 [after entry of final judgment, trial court loses unrestricted power to reconsider rulings and may only correct judicial error through such procedures as motions for new trial or for vacation of judgment]; accord Nave v. Taggart (1995) 34 Cal.App.4th 1173, 1177; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 67 et seq., p. 594 [after entry of final judgment, court may correct clerical, but not legal, error]; compare In re Marriage of Barthold (2008) 158 Cal.App.4th 1301 [under some circumstances court has inherent power to correct legal error in final order].)
DISPOSITION
The order setting aside the dismissal judgment is reversed. O'Leary to pay the Department's costs on appeal.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.