Opinion
F075021
03-21-2018
KAY DODGIN, Plaintiff and Appellant, v. PROACTIVE WORK HEALTH MEDICAL CENTER, INC. et al., Defendants and Respondents.
Law Office of Randy Rumph and Randall M. Rumph for Plaintiff and Appellant. Daniel Pesci for Defendant and Respondent Proactive Wellness Systems, Inc. No appearance for Defendant and Respondent Proactive Work Health Medical Center, Inc.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-282562)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. Law Office of Randy Rumph and Randall M. Rumph for Plaintiff and Appellant. Daniel Pesci for Defendant and Respondent Proactive Wellness Systems, Inc. No appearance for Defendant and Respondent Proactive Work Health Medical Center, Inc.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant, Kay Dodgin, challenges the trial court's order denying her motion to reopen her case. According to appellant, the superior court clerk inadvertently closed the case due to a clerical error. Appellant argues her intent was to dismiss only the defendant erroneously sued, not the entire complaint. Appellant contends that, because she did not check all of the relevant boxes on the request for dismissal form, the court clerk should have verified that there were no other defendants before closing the case.
The trial court did not abuse its discretion when it denied appellant's motion. Therefore, the order will be affirmed.
BACKGROUND
Appellant filed a wrongful termination complaint against Proactive Work Health Services (Work Health) and Irene Sanchez, M.D. Appellant alleged Work Health managed Sanchez's practice. However, during discovery, appellant learned that the proper entity was Proactive Wellness Systems, Inc. (Wellness Systems), not Work Health. Accordingly, appellant amended her complaint to substitute Wellness Systems as a party in place of a Doe defendant.
On September 28, 2015, appellant filed a "notice of settlement of entire case." On this form, appellant checked the box stating, "This entire case has been settled. The settlement is unconditional." Also on September 28, 2015, appellant filed a request for dismissal asking the court clerk to dismiss the complaint without prejudice.
In January 2016, appellant served the complaint on Wellness Systems. When Wellness Systems did not file a responsive pleading, appellant's counsel inquired as to why. Counsel for Wellness Systems explained that when they attempted to file a responsive pleading, the court told them that the case had been closed.
On July 26, 2016, appellant filed a "motion to reopen her case which was inadvertently closed." According to appellant, the settlement was with Sanchez only and the settlement notice so indicated. Appellant requested that the court reopen the file to enable her to prosecute her claim against Wellness Systems.
The trial court denied the motion. The court found that the "clerk made no error or mistake that the court can treat as 'court error' for purposes of setting aside [appellant's] dismissal" and that appellant did not submit a Code of Civil Procedure section 473 motion to set aside the dismissal for mistake, inadvertence, surprise, or excusable neglect.
All further statutory references are to the Code of Civil Procedure.
DISCUSSION
Section 473, subdivision (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."
Clerical errors include inadvertent errors made by the court that cannot reasonably be attributed to the court's exercise of judicial consideration or discretion. (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034.) Whether an error is clerical in nature is a matter for the trial court to determine. (Id. at p. 1035.) The appellate court will not disturb the trial court's order on a section 473 motion absent a showing of a clear abuse of discretion. (Conservatorship of Tobias, supra, at p. 1035.)
Appellant contends that the September 28, 2015, request for dismissal was as to Work Health only. Appellant notes that the case caption listed only Work Health as the defendant. Appellant acknowledges that she inadvertently failed to check the box 6, "other," and specify that only Work Health was to be dismissed. However, she also points out that she did not check box 5, requesting the dismissal of the "entire action of all parties and all causes of action." Appellant argues that, because the request for dismissal was unclear and incomplete, the court clerk should have, at a minimum, inquired as to her intent before dismissing the entire action.
Contrary to appellant's position, the request for dismissal was clear. The form provides six options. The party asks the clerk to dismiss either the "complaint," "petition," "cross-complaint filed by (name)," "cross-complaint filed by (name)," "entire action of all parties and all causes of action," or "other." For "other," the form instructs the party "[i]f dismissal requested is of specified parties only, of specified causes of action only, or of specified cross-complaints only, so state and identify the parties, causes of action, or cross-complaints to be dismissed." The party requesting dismissal is not required to check either box 5, the "entire action," or box 6, "other." A party has the option of requesting dismissal of only the complaint. The fact that in this case dismissal of the complaint constituted dismissal of the entire action does not render the request for dismissal filed by appellant ambiguous. Moreover, Work Health being the defendant listed in the caption does not limit the dismissal to Work Health. Appellant requested that the court clerk dismiss the complaint and the clerk complied with appellant's request.
It was for the trial court to determine whether the court clerk's dismissal of appellant's complaint was a clerical error. The court's finding that no error was made is within the bounds of reason and is supported by the record. Accordingly, the trial court did not abuse its discretion when it denied appellant's motion to reopen her case.
Respondent's motion to augment the record is denied. --------
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondent.