Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Joan F. Burgess and David Gregory, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.) No. RIC439897
Cheryl Sanders, in pro. per., for Plaintiff and Appellant.
Silver Rios, in pro. per., for Plaintiff and Appellant.
Green & Hall, Howard D. Hall and Markus D. Self for Defendants and Respondents Amberhill Communities, Inc., Amberhill-The Orchards and Frame Right Development.
Bremer Whyte Brown & O’Meara, Keith G. Bremer and Robert E. Gibson for Defendant and Respondent Blue Rose Concrete Contractors, Inc.
Lewis, Brisbois, Bisgaard & Smith and Mathew Leon Walker for Defendant and Respondent Marshall Installations and Weatherstrip, Inc.
No appearance for Defendants and Respondents Bourne Development, Inc., RCR Companies, Inc., T. McGee Electric, REM Concepts, Inc., and GDT Framing, Inc.
OPINION
MILLER, J.
The trial court denied the motion of plaintiffs Cheryl Sanders and Silver Rios to set aside the dismissal of their action based on their failure to timely prosecute the matter. On appeal, plaintiffs contend the court erred in denying their motion because the underlying dismissal was based on an erroneously entered prior dismissal order. We hold that both the dismissal order and the order denying the motion to set aside the dismissal were properly based on plaintiffs’ delay in prosecuting their suit; we affirm.
FACTUAL AND PROCEDURAL HISTORY
On November 4, 2005, plaintiffs filed a complaint regarding construction defects in their home against, among others, defendant Amberhill-The Orchards (Amberhill). On May 12, 2006, Amberhill filed a petition to compel arbitration. After a hearing on June 27, 2006, the trial court granted Amberhill’s motion, vacated all set hearing dates, and set an order to show cause (OSC) regarding dismissal of the case for June 27, 2007, unless judgment was entered in the interim. The court noted that “[i]f everyone’s still working in good faith under this arbitration and you want more time, you can submit a stipulation or just appear on that date and give me what the status is.”
On June 27, 2006, the proposed order attached to the petition to compel arbitration was signed and entered by the court. The order contained an additional item not reflected in either the court’s oral ruling or the minute order of the hearing, to wit, a ruling that “Plaintiff Respondents’ Complaint is dismissed with prejudice.” The proof of service attached to the order reflected that it was served on plaintiffs’ counsel more than a month prior to the court’s ruling. Plaintiffs’ counsel declared that he never received a copy of the proposed order. On June 27, 2006, Amberhill served, and on June 30, 2006, filed, a notice of the court’s June 27, 2006, ruling. That notice correctly identified the court’s rulings, not including the additional provision that plaintiffs’ complaint had been dismissed. Indeed, the notice indicated that “[t]he Court’s minute order constitutes the Order.” The court’s minute order does not reflect any ruling that plaintiffs’ complaint had been dismissed.
On June 26, 2007, counsel for Amberhill filed a declaration in support of dismissing the action for plaintiffs’ failure to make any “efforts to initiate a final and binding arbitration proceeding.” Counsel declared that “[n]o mediation has been scheduled or occurred.” Counsel declared that he had made numerous requests to obtain a final cost of repair and final defect list and that plaintiffs’ counsel had at various times promised to furnish the documents within a specified amount of time, but that no such documents were forthcoming. At the hearing on the matter, the court heard argument from counsel for defendants and plaintiffs. Counsel for defendant Marshall Installations and Weather Stripping brought to the court’s attention that plaintiffs’ failure to proceed “may be moot, as the Court on 6/26/06 [sic], signed an order dismissing Plaintiffs’ Complaint with prejudice. There’s a signed order in the file by Commissioner Burgess, dismissing Plaintiffs’ Complaint with prejudice, as a result of the Court granting Developer’s motion to compel mediation and binding arbitration.” The court further inquired into the alleged order of dismissal. It called up a copy of that order and read the provision dismissing plaintiffs’ suit with prejudice on the record. The court immediately thereafter ruled that “[g]iven that order and the OSC on calendar for today, I am going to order the entire matter dismissed with prejudice.” Notice of the ruling was served on June 27, 2007, and filed on July 2, 2007.
On October 25, 2007, plaintiffs filed a motion for an order to set aside the dismissal orders of June 27, 2006, and June 27, 2007, and to permit an additional 90 days to complete mediation. Plaintiffs alleged that the error in the signed order of June 27, 2006, dismissing the case with prejudice should be corrected pursuant to Code of Civil Procedure section 473, subdivision (d), as a clerical mistake. Moreover, plaintiffs alleged that since the order of dismissal dated June 27, 2007, was due to the clerical mistake contained in the June 27, 2006, order, the latter order should likewise be set aside: “Certainly if the Court had intended on dismissing the case it would not have set an OSC re: Dismissal and the parties would not have continued with inspections, adding parties and preparing for mediation and/or arbitration.” Plaintiffs’ counsel declared that he did not learn of the June 27, 2006, order of dismissal until it was read during the June 27, 2007, hearing.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Plaintiffs’ counsel also declared that plaintiffs’ experts were delayed in completing their inspections and compiling a final defect and cost report due to plaintiff Sanders’s unexpected loss of her baby. Plaintiffs’ counsel circulated a proposed stipulation to continue the OSC for 90 days on May 25, 2007. Plaintiffs’ counsel declared that most of the parties signed and returned the stipulation; however, counsel for Amberhill indicated she would not execute the stipulation until receipt of the final defect and cost of repair report.
On December 26, 2007, Amberhill filed opposition to plaintiffs’ motion. In that pleading, Amberhill noted that in the court’s June 27, 2006, order “[t]he court clearly ordered Plaintiffs to mediate and arbitrate this matter within one year.” Amberhill contended that “[p]laintiffs’ case was dismissed with prejudice due to Plaintiffs’ complete failure to abide by the Court’s June 27, 2006[,] Order, including their failure to even initiate an arbitration proceeding after being ordered to do so”; not because of a clerical mistake. Indeed, Amberhill maintained that “the court dismissed this matter on June 27, 2007[,] for no other reason than plaintiffs’ failure to prosecute.” (Formatting altered; italics added.) Thus, “because no ‘clerical mistake’ caused the dismissal of their case,” Amberhill averred that the motion must be denied. However, Amberhill acknowledged in its opposition “that a typographical error is contained in Paragraph 2 of the June 27, 2006[,] Order: in granting Defendants’ Petition to compel arbitration, it states: ‘Plaintiff Respondents’ Complaint is dismissed with prejudice.’ But no party left the June 27, 2006[,] hearing with the understanding that this matter had been dismissed, for (1) the Court retained jurisdiction over this matter; (2) an OSC re: Dismissal was set for one year later; and (3) Defendants and Cross-Defendants frequently attempted to gain the attention of Plaintiffs’ counsel (to no avail). Therefore, not only was that typographical error an obvious mistake, no party relied on that statement in determining the fate of this matter. [¶] Thus, Defendants agree that it was not the Court’s intention on June 27, 2006[,] to dismiss the Complaint. Instead, the Court retained jurisdiction and set the OSC for one year later—June 27, 2007. It was then—one year later—when the Court dismissed the case with prejudice because Plaintiffs neglected to even submit this matter to arbitration.” (Fn. omitted.) “[A] typographical error may be contained in the Court’s June 27, 2006[,] Order, but there is no mistake in the operative June 27, 2007[,] Order which dismissed this case with prejudice.”
On January 8, 2008, plaintiffs filed their reply in propria persona. Plaintiffs’ primary response was that the delay was excusable because they had attempted to move forward with the case, but they were delayed by plaintiff Sanders’s loss of her child and defendants’ requested extensions of scheduled mediation dates, extensions of scheduled inspections, failures to appear at scheduled inspections, and filing of a cross-complaint against another party. Plaintiffs essentially maintained that, to the extent the court’s order was based on plaintiffs’ failure to prosecute, the dismissal was erroneous because the delay was excusable. Nonetheless, plaintiffs later contended that “the court dismissed the action on June 27, 2007[,] for no other reason other than for incorrect order [sic] entered on June 26, 2006.” (Formatting altered.) Plaintiff argues: “Nothing in the Court record states the matter was dismissed for lack of prosecution or attorney neglect. The Court did not provide any other explanation for the dismissal other than the order that was entered on June 27, 2006. Absen[t] any mention of the dismissal being based on the lack of prosecution or attorney neglect renders [Amberhill’s] argument moot.”
A hearing on plaintiffs’ motion was held on January 9, 2008. The court indicated that it was tentatively disposed to deny the motion because “prior to the hearing on the 27th of June ’07, there was no evidence presented by the plaintiff to explain any failure to conduct the arbitration between 6/26/06 and 6/27/07. Plaintiff filed no declaration or response to the OSC itself or to defense counsel’s declaration, which was filed prior to the OSC hearing and addressed what defense counsel contended to be plaintiff’s unexcused delay or failure to effectively participate in the litigation process that prior year.” After providing plaintiff Sanders an opportunity to respond, which she declined, the court asked the parties to waive notice of ruling, which they did. The minute order for the hearing date reflects that plaintiffs’ motion was denied. Entry of the judgment of dismissal was signed on July 7, 2008, and filed on July 9, 2008.
DISCUSSION
Plaintiffs contend the court abused its discretion in denying their motion to set aside the dismissal orders and reinstate a new OSC date permitting an additional 90 days for mediation. Plaintiffs argue that “[i]t was clearly not the intent of Honorable Joan Burgess to dismiss the case with prejudice. Additionally, there was not [such] a delay in prosecution in this matter... to warrant a harsh remedy of a dismissal with prejudice.” Defendants counter that the case was not dismissed in any part due to the erroneous order of dismissal dated July 26, 2006; rather, they contend that the dismissal of July 27, 2007, was based solely on plaintiffs’ failure to prosecute the suit. Thus, the court properly denied plaintiffs’ motion to set aside both dismissals.
“‘A motion seeking relief [under section 473] lies within the sound discretion of the trial court and will not be disturbed except for a trial court’s abuse of discretion. [Citation.]’ [Citation.]” (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319.)
Section 473, subdivision (d), provides that “[t]he 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.” “‘The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination. [Citations.]’ [Citation.]” (Pettigrew v. Grand Rent-a-Car (1984) 154 Cal.App.3d 204, 209.) “A clerical error in a judgment, ‘“as regards correction, includes one made by the court which cannot reasonably be attributed to exercise of judicial consideration or discretion.”’ [Citations.]” (Id. at pp. 209-210.) “[T]he test as to whether an error in a judgment is a clerical or a judicial error ‘is simply whether the challenged judgment was made or entered inadvertently (clerical error) or advertently (judicial error). [Citation.]’” (Id. at p. 210.)
“‘If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence. [Citations.] The court has inherent power to correct such errors. This power extends to striking out findings of fact and conclusions of law and a judgment and substituting wholly different findings of fact and conclusions of law and judgment. In correcting a clerical error or mistake the trial judge may give effect to facts within his personal knowledge and to his recollection. [Citation.]’” (Pettigrew v. Grand Rent-a-Car, supra, 154 Cal.App.3d at p. 210.) A dismissal for delay in prosecution can be set aside by a section 473 motion. (Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1565, 1566, fn. 9.)
Here, there can be no other conclusion than that the order of dismissal dated July 26, 2006, was the result of clerical error. Amberhill itself noted in its opposition to plaintiffs’ motion that the dismissal order was erroneous. As noted above, all the parties continued to act as if the action was still viable following entry of that order. No one had requested dismissal of the case prior to the order and no actual dismissal had been entered. Rather, the order of dismissal was inadvertently included in the order on defendant’s petition to compel arbitration; thus, it was a typographical or clerical error. Nevertheless, plaintiffs are incorrect in asserting that the July 27, 2007, order of dismissal was based solely upon entry of the prior dismissal order. Rather, the judge ruled that “[g]iven [the prior dismissal] order and the OSC on calendar for today, I am going to order the entire matter dismissed with prejudice.” (Italics added.) The court’s ruling was made after argument by all parties regarding plaintiffs’ delay in prosecuting the matter. Thus, at best, the second dismissal order was based only in part on the prior dismissal order. The language indicating that the final dismissal order was also based on “the OSC on calendar for today” reflects that the court’s ruling was supported by the evidence of plaintiffs’ delay in prosecuting the matter.
The court, in denying plaintiffs’ motion to set aside the order of dismissal, acted within its discretion. That court noted that “prior to the hearing on the 27th of June ’07, there was no evidence presented by the plaintiff to explain any failure to conduct the arbitration between 6/26/06 and 6/27/07. Plaintiff filed no declaration or response to the OSC itself or to defense counsel’s declaration, which was filed prior to the OSC hearing and addressed what defense counsel contended to be plaintiff’s unexcused delay or failure to effectively participate in the litigation process that prior year.” Plaintiffs filed no documentation prior to the hearing on the OSC to dismiss. While plaintiffs’ attached numerous exhibits to their motion to set aside the dismissal, which they contended mitigated against a finding that the delay was primarily their responsibility, the judge hearing the motion to set aside the dismissal had to view the evidence as it existed on June 27, 2007, when the matter was dismissed. He accurately noted that the state of the evidence at that point reflected a failure to timely prosecute the matter without any justifiable excuse for having failed to do so. Thus, the court acted within its discretion in determining that the dismissal order was supported by plaintiffs’ delay in prosecuting the matter.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: HOLLENHORST Acting P. J., GAUT, J.