Plaintiff Gary T. Makiyama?s Motion for Reconsideration?is DENIED.??On the Court?s own motion?under?CCP ? 473(d) and CCP ? 187, the?April 10, 2018?dismissal is hereby vacated.??The Court set an OSC Hearing re: Entry of Default for Default and Default Judgment on Janaury 24, 2019 at 8:30 a.m. in Department 94.
Introduction
At the OSC Hearing?re:?Entry of Default as to the Non-Responding Parties on April 10, 2018, no parties appeared?so?the Court dismissed this action without prejudice.??On April 23, 2018, Plaintiff Gary T. Makiyama (?Plaintiff?) filed a Motion for Reconsideration (the ?Motion?) of the April 10, 2018 Order.
Legal Standard
Pursuant to?CCP ? 1008(a):
?When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.??The party making the application shall state by affidavit what application?was made?before, when and to what judge, what order or decisions?were made, and what new or different facts, circumstances, or law are claimed to?be shown.?
Discussion
- Motion for Reconsideration
A motion for reconsideration under?CCP ? 1008(a)?is not a proper?mean?to challenge the April 10, 2018 Order.??CCP ? 1008(a) permits reconsideration of an order ?[w]hen an application for an order has?been made?to a judge.???Here,?April 10, 2018 Order was a result of Plaintiff?s failure to appear and not a result of?a motion?or application requesting the Court to issue such Order.??Accordingly, the Motion is improper under?CCP ? 1008(a) and?is DENIED.
- ?????????Clerical Error
CCP ? 187 states: ?[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.?
?A court of general jurisdiction has this inherent power to correct?clerical?error in its records, whether made by the court, clerk or counsel, at?anytime?so as to?conform its records to the truth.?? (Aspen Internat. Capital Corp. v. Marsch?(1991) 235 Cal.App.3d 1199, 1204.)??Courts have a ?plain duty[] to remedy clerical errors.???(Roth v. Marston?(1952) 110 Cal.App.2d 249, 251.)
CCP ? 473(d) states: ?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.???(Emphasis added.)?
The Court notes that on February 5, 2018, the Court issued an order and a?nunc pro tunc?order setting an OSC Hearing?re:?Entry of Default as to the Non-Responding Parties for April 10, 2018.??Due to a clerical error, neither the order nor the?nunc pro tunc?order?was served?on Plaintiff.??Because of this, Plaintiff?was not afforded?notice of the OSC hearing on April 10,?2018?and an opportunity to make an appearance.??As a result, Plaintiff did not appear at the OSC hearing?and?this case?was dismissed.
?Notice and an opportunity to be heard must precede deprivations of life, liberty or property.???(Albrecht v. Superior Court?(1982) 132 Cal.App.3d 612, 619.)??For lack of notice and because of the clerical error, the Court finds the April 10, 2018 dismissal of this action to be improper.??On the Court?s?own?motion under?CCP ? 473(d) and CCP ? 187, the dismissal is hereby vacated.
The Court set an OSC Hearing re: Entry of Default and Default Judgment for January 24, 2019 at 8:30 a.m. in Department 94.?
Clerk to give notice.