Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG 03-106398
Swager, J.
Appellant filed a motion requesting that the trial court vacate its dismissal of her lawsuit against respondent. The court denied her motion and she filed this timely appeal. We reverse.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
Appellant was married to Robert T. Ashley. They had two children together. The marriage ended in divorce and Mr. Ashley was ordered to pay child support and to transfer certain property to appellant. Prior to his death in 2002, Mr. Ashley transferred his assets to a trust. Respondent is the trustee of this trust, which is valued at approximately $1 million.
On July 14, 2003, appellant filed a complaint against respondent, in his capacity as trustee, seeking to recover past due child support and the value of the property, which Mr. Ashley never transferred to appellant. The parties tentatively arrived at a settlement agreement in July 2004, under which appellant would receive either a cash payment of $395,000, or the property and $77,000 in cash. The remaining assets would be kept in trust for the two children.
The parties informed the court of the settlement, and the case management judge scheduled a compliance hearing. The first scheduled hearing was vacated and rescheduled by the court for October 5, 2004. The notice for the rescheduled hearing stated: “Note: Per [appellant’s counsel] case has settled. Continued for dismissal to be filed.”
Prior to the rescheduled hearing date of October 5, respondent filed a petition for instruction, asking the probate court to ratify the settlement. The petition recited the terms of the settlement agreement and was signed by respondent.
The hearing on respondent’s petition was scheduled to occur on November 2, 2004. The parties requested a second continuance of the compliance hearing so that the petition would be heard first. In spite of the request, the compliance hearing occurred as scheduled with neither party being present. The court dismissed the case “for failure to appear.”
On December 14, 2004, the probate court held a hearing and denied the petition for instruction because the settlement agreement that was attached did not contain respondent’s signature. Respondent’s counsel told the court that the signature was missing because respondent was out of town.
Over the next several months, appellant continued to seek to finalize the settlement agreement. According to her, respondent’s counsel assured her counsel that there was no need to vacate the dismissal. Appellant’s counsel was informed that the settlement was being delayed because respondent was on an extended trip out of the country.
In November 2005, appellant learned for the first time that respondent would not honor the settlement agreement. He claimed he could no longer obtain court approval of the agreement because the case had been dismissed, and took the position that the settlement agreement itself was not binding because he never signed it.
Shortly thereafter, appellant filed a motion to vacate the dismissal and to enforce the settlement agreement. She asserted that the dismissal was void because it was entered without notice. The trial court ruled that the order of dismissal was not void because she had waited over a year before bringing the matter to the court’s attention.
DISCUSSION
I. The Court Erred in Refusing to Vacate the Order of Dismissal
Appellant contends that the order of dismissal is void due to the lack of notice, and that the court below erred in refusing to vacate it. She cites to Code of Civil Procedure section 473, subdivision (d), which provides that a court “may, on motion of either party after notice to the other party, set aside any void judgment or order.” Alternatively, she contends the court should have vacated the dismissal order as a matter of equity because the delay in challenging the dismissal was caused by respondent’s extrinsic fraud.
All subsequent statutory references are to the Code of Civil Procedure.
Respondent claims, as he did below, that appellant had only six months within which to file a motion to set aside the dismissal order pursuant to section 473, subdivision (b), which allows for such a motion based either upon mistake, inadvertence, surprise, or excusable neglect, or upon attorney fault. He also claims that the court did not abuse its discretion in rejecting appellant’s argument regarding his alleged extrinsic fraud.
We agree with appellant that the original dismissal was void for lack of notice. We also find that section 473, subdivision (b), is not applicable. Instead, we believe that this case falls within section 473, subdivision (d), because that subdivision pertains specifically to void judgments and orders. We also note that courts have the inherent power to set aside a void judgment. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.)
A fundamental right under the United States and California Constitutions is the right to due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) An order of dismissal entered without due process is void. (Reid v. Balter, supra, 14 Cal.App.4th 1186, 1193.) A void order may be set aside at any time on motion of any affected party or on the court’s own motion. (§ 473, subd. (d); Baird v. Smith (1932) 216 Cal. 408, 411.) Once brought to the trial court’s attention, it is error to refuse to set a void order or judgment aside. (Luckenbach v. Krempel (1922) 188 Cal. 175, 176–177; see Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 554–555.)
Notice in this case was insufficient to support the trial court’s order of dismissal. “ ‘At a minimum, [procedural requirements that precede any dismissal] include notice to the plaintiff of a motion of intent to dismiss and an opportunity for plaintiff to be heard. . . .’ [Citation.]” (Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1428–1429 [erroneous dismissal for failure to prosecute].)
Our review of the record shows that appellant did not receive any notice that her case could be dismissed if she did not attend the October 5, 2004 compliance hearing. The language in the notice of hearing regarding the settlement and the pending dismissal appears to have been a kind of “note to self” for the court. In our view, a reasonable and common sense reading of the “Note” simply reflects that appellant was planning on dismissing the case once the settlement was approved by the probate court. The notice did not advise appellant that the court was considering imposing any type of sanction. Thus, the order of dismissal should have been vacated by the court below on the ground that it was void for lack of notice.
Respondent argues that the dismissal was proper under California Rules of Court, rule 225(b) and (c). We disagree. Both of these subdivisions include the following provision: “If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.” (Italics added.) It is undisputed that the court did not issue an order to show cause in the present case prior to entering the order of dismissal.
Rule 225 has been renumbered as rule 3.1385, effective January 1, 2007.
We note that “[d]ue process requires notice before a dismissal of a case may be entered. [Citations.] As one court noted, parties must distinguish ‘the authority of a court to dismiss a case because of the actions (or inactions) of its litigants [from] the procedural requirements that precede any such dismissal. At a minimum, such requirements include notice to the plaintiff of a motion or intent to dismiss and an opportunity for plaintiff to be heard.’ [Citation.]” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 510.)
We also agree with appellant’s position that the trial court erred in concluding she waited too long before challenging the dismissal. “ ‘It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]’ [Citations.]” (Reid v. Balter, supra, 14 Cal.App.4th 1186, 1194, italics added; accord Baird v. Smith, supra, 216 Cal. 408, 410 [“a judgment which is void upon its face is a dead limb upon the judicial tree which may be lopped off at any time”] and Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761 [“a default that is void on the face of the record when entered is subject to challenge at any time irrespective of lack of diligence in seeking to set it aside within the six-month period of section 473”].)
A trial court’s ruling on a motion to vacate will be disturbed on appeal only “where there is a clear showing of abuse of discretion.” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283.) We find an abuse of discretion here. The facts were undisputed concerning the content of the notice of the October 5, 2004 hearing. The record shows on its face that the dismissal was entered without effective notice to appellant. As a matter of law, the dismissal was void and appellant was entitled to unconditional relief. The trial court thus erred in denying the motion to vacate the judgment of dismissal. Having so found, we need not consider appellant’s contentions concerning respondent’s extrinsic fraud.
II. Enforcement of Settlement Agreement Under Section 664.6
Appellant also requests that we enter judgment to enforce the settlement agreement against respondent pursuant to section 664.6. We believe this issue is more properly addressed in the first instance by the trial court on remand: “When ruling on a section 664.6 motion, the court in effect acts as a trier of fact. ‘[T]he trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone.’ [Citation.]” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565, italics omitted.) Because the status of the settlement agreement appears to be in dispute, we decline to determine whether the settlement is enforceable pursuant to section 664.6.
Section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
The entry of dismissal is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion.
We concur: Stein, Acting P. J., Margulies, J.