Motion to Correct Clerical Error; Motion to Vacate Default
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Case Name: Sophie Shen vs Wei Xia et al Case No.: 19CV360975
Li Zhe, aka Zhe Li, (“Li”) moves for an order vacating as void for lack of jurisdiction the following orders and judgments entered as to him: (1) the May 26, 2023 Order Granting Plaintiff’s Renewed Ex Parte Application for Order Authorizing Service by Publication as to Zhe Li (“Publication Order”); (2) the February 18, 2025, Default entered against Li; and (3) the March 28, 2025 Default Judgment entered against Li. The motion is GRANTED.
Li’s first argument is that he was dismissed from the action on January 6, 2023. A dismissal terminates both subject matter and personal jurisdiction. (See Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405 [after a party is dismissed, the “trial court is without jurisdiction to act further in the action except for the limited purpose of awarding costs and statutory attorney's fees.”]) Upon review of the Judgment filed January 6, 2023, Li’s argument appears persuasive. The Judgment clearly states, “The remaining causes of action against Li Zhe are dismissed without prejudice for failure to serve.” There is nothing ambiguous about the Court’s language.
To combat Li’s dismissal argument, Plaintiff Sophie Shen (“Shen”) brings her own motion pursuant to Code of Civil Procedure § 473(d) for “correction of clerical error.” Shen asserts that the January 6, 2023, judgment contains an “unintended statement,” namely that “the remaining causes of action against Li Zhe are dismissed without prejudice for failure to serve.” But Shen’s effort to categorize the Court’s dismissal of Li as “unintended” is not persuasive. Not only did the Court insert this dismissal language into the judgment after receiving proposed judgments from the parties, the Court also gave a specific reason for the dismissal – failure to serve.
It is clear from the record that at the time of the judgment, Li had not been served. An action may be dismissed by the court, without prejudice, when the dismissal is made as a result of the plaintiff’s failure to meet the service requirements of § 583.210, et seq. Indeed, under section 583.250, dismissal is mandatory. There is no reason to believe that the Court did not purposefully dismiss the action as to Li based on the Court’s belief that dismissal was warranted for “failure to serve.”
Whether the Court was correct in ordering dismissal as to Li on January 6, 2023, is of no moment. Right or wrong, this was not a clerical error. “The difference between judicial and clerical error rests ... on whether it was the deliberate result of judicial reasoning and determination. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered.” (
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Instead, Shen sought a post-dismissal order for leave to serve Li by publication, which the Court granted on May 26, 2023. While Shen is correct that the Court continued to treat Li as if dismissal had not been entered on January 6, 2023, multiple wrongs do not make a right.
The Court had no jurisdiction over Li and should not have authorized service upon a party who had been dismissed from the action.4 The order granting leave to serve Li by publication is therefore void. For the same reasons, the Court lacked jurisdiction to enter default and default judgment as to Li, and those orders are void as well.
Li’s motion is GRANTED. The Court’s May 26, 2023, Order Authorizing Service by Publication as to Zhe Li; the February 18, 2025, Default entered against Li; and the March 28, 2025 Default Judgment entered against Li are VOID and VACATED.5
The Court will prepare the final order.
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4 The complaint against Li was filed April 27, 2020 in the related case, 20CV366271, that was ultimately consolidated into 19CV360975. Thus, Plaintiff’s first ex parte application for service by publication, filed May 15, 2023, was not even submitted within 3 years of the filing of the complaint, and the Court did not grant service by publication until May 26, 2023. No proof of service was filed until July 21, 2023, at the earliest (Form POS- 010 was not filed until February 29, 2024). Here, Shen had to serve the summons and complaint by April 27, 2023 (within three years after the action is commenced) and file the proof of service by June 26, 2023 (within 60 days after the time the summons and complaint must be served). (Code Civ.
Proc., § 583.210.) Shen missed these deadlines, the action should not have been further prosecuted, and no further proceedings should have been held as to Li. (Code Civ. Proc., § 583.250(a)(1).) 5 Because the Court agrees with Li that Li was dismissed from the action on January 6, 2023, the Court need not address the remaining arguments regarding Shen’s compliance with the Court’s now void order granting leave to serve Li by publication. 23