Carter v. Shinsako

MOORE, P. J.

Defendant appeals from an order granting plaintiff’s motion to vacate a judgment entered pursuant to sustaining a demurrer without leave to amend. The order complained of was made by the court March 20, 1940, following the presentation of a motion accompanied by an affidavit of merits. The affidavit established the following facts:

The demurrer to the first amended complaint was sustained without leave to amend and a minute order was entered January 22d; while no formal notice of the court’s ruling was served upon plaintiff or her counsel, a copy of the court’s memorandum of decision was mailed to her counsel on the date of the order; on the afternoon of January 25th, pursuant to the request of plaintiff’s counsel, the judge granted plaintiff permission to apply for a modification of the order of January 22d in order to permit the filing of a second amended complaint and required counsel to serve a copy of the application on defendant’s counsel and the judge stated that the application would be considered and determined by

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him; immediately and on the same day, plaintiff’s counsel prepared the application and on the morning of the 26th directed his process server to serve and file the paper. However, on the afternoon of the twenty-fifth a formal judgment sustaining the demurrer without leave to amend was signed by the judge and entered on the following day; the form of judgment which had been prepared by defendant’s counsel was presented by the clerk of the court along with other orders to the judge for his signature and was at that time, through inadvertence, signed by him. The averment then follows that the plaintiff has a good cause of action. No affidavit or other evidence was submitted in contradiction to the affidavit filed by plaintiff. The motion having been submitted upon briefs to be filed, the court on March 20th filed a decision and entered its order granting the motion to vacate the judgment and authorized plaintiff to file her second amended complaint.

The order of the court vacating the judgment of January 25th is in all respects a valid judgment for two reasons: (1) Because the court was authorized by the provisions of section 473 of the Code of Civil Procedure to correct an error resulting from his own inadvertence, and (2) the court had inherent power to strike from its records entries made through the inadvertence of the judge to the end that substantial justice might not be defeated.