Rochin v. Pat Johnson Mfg. Co.

• Decision Date: 19 November 1998
• Docket Number: No. B114612,B114612
• Citation: 79 Cal.Rptr.2d 719,67 Cal.App.4th 1228
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Daily Journal D.A.R. 11,839, 98 Daily Journal D.A.R. 12,569 Joe ROCHIN, Plaintiff and Appellant, v. PAT JOHNSON MANUFACTURING COMPANY et al., Defendants and Respondents.

Page 719

79 Cal.Rptr.2d 719

67 Cal.App.4th 1228, 98 Daily Journal D.A.R. 11,839,

98 Daily Journal D.A.R. 12,569

Joe ROCHIN, Plaintiff and Appellant, v. PAT JOHNSON MANUFACTURING COMPANY et al., Defendants and Respondents.

No. B114612.

Court of Appeal, Second District, Division 4, California.

Nov. 19, 1998.

As Modified on Denial of Rehearing Dec. 9, 1998.

Review Denied Feb. 24, 1999.

Law Offices of William K. Pratt, and Girardi and Keese, and John A. Girardi, Los Angeles, for Plaintiff and Appellant.

Donahoe, Carroll & Dunn LLP, Douglas G. Carroll, and Barbara E. Dunn, Encino, for Defendants and Respondents.

CHARLES S. VOGEL, Presiding Justice.

INTRODUCTION

Plaintiff and appellant Joe Rochin appeals from a judgment of dismissal entered after the trial court sustained a demurrer to plaintiff's complaint without leave to amend. The present action is one for equitable relief by which plaintiff seeks to vacate an amended judgment entered in a prior action for personal injury brought by plaintiff against defendant and respondent Pat Johnson Manufacturing Company ("PJMC"). Also named as a defendant in the present action is respondent George Ellis, who was trial counsel for PJMC in the prior action.

Plaintiff's complaint alleges that the amended judgment should be vacated and declared void for lack of jurisdiction, and the original judgment should be reinstated. Plaintiff argues that the amended judgment was entered on an ex parte basis without notice to plaintiff, as a result of extrinsic fraud, thus depriving him of due process and rendering the amended judgment void.

Defendants contend that even if the amended judgment was entered in an irregular manner, the present action to set it aside is barred by the statute of limitations governing actions based on fraud, and also by the doctrine of res judicata. The trial court agreed and sustained defendants' demurrer without leave to amend on these bases.

As we will discuss, we find that the amended judgment was and is void, as is the order denying plaintiff's subsequent motion to vacate the amended judgment, and that a void judgment or order may properly be attacked at any time, directly or collaterally. We also conclude that the doctrine of res judicata does not apply to void judgments or orders. We therefore conclude that the trial court erred in sustaining defendants' demurrer and dismissing the present action; accordingly, we reverse the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

At the outset, we note that pursuant to plaintiff's request, we take judicial notice of the files in the previous related appeal (Rochin v. Pat Johnson Manufacturing Co. (Nov. 21, 1995) B074091 (nonpub. opn.)), and plaintiff's prior petition for writ of mandate (Rochin v. Superior Court (Aug. 9, 1996) B103863 (nonpub. opn.)).

Plaintiff filed suit against defendant PJMC for personal injuries he suffered when he fell from a ladder manufactured by defendant. On December 14, 1992, a jury found by special verdict that defendant was negligent and that plaintiff's damages were $800,000. However, they found plaintiff to be contributorily negligent. Question No. 7 on the special verdict form and the jury's response were as follows:

"[If there was contributory negligence], what was the percentage of the total amount of the damages attributed to each of the following:

                        To the Plaintiff:                      25%
                        To Pat Johnson Manufacturing Company:  25%
                        To others:                             50%
                        Total:                                 100%"
                

The court's minute order of December 14, 1992, after setting forth the questions and answers on the special verdict form, and the results of polling the jury, then stated: "The Court and both counsel thereafter confer at side bar outside the hearing of the jurors and without the reporter. The Jury is thereafter ordered by the Court to return into the jury room with instructions to recalculate Question No. 7, by excluding the group, 'To others'; and the Court deletes same and all the percentage answers given by interlineation." The trial court drew a line through the figures previously entered by the jury indicating their allocation of fault, and also struck out the phrase "To others," placing his initials beside each deletion. After deliberating further, the jury returned the special verdict form with an amended answer to Question No. 7, attributing 57 percent of the total amount of damages to the plaintiff, and 43 percent to PJMC. The jurors were then discharged, and the special verdict and judgment thereon were filed. The judgment indicated plaintiff was to recover from PJMC the amount of $344,000. On December 30, 1992, plaintiff filed notice of entry of judgment (dated and served on December 28, 1992), erroneously indicating judgment was On January 4, 1993, defendant filed notice of intention to move for a new trial and for judgment notwithstanding the verdict. Neither motion raised any dispute regarding the allocation of fault as set forth in the special verdict and ensuing judgment. Both motions were denied after hearing on January 29, 1993.

entered on December 7 rather than December 14, 1992.

On February 4, 1993, defendant submitted to the trial court a proposed amended judgment, apparently without serving a copy on plaintiff's counsel. The proposed amended judgment was signed by the trial court on February 22, 1993. The purported amended judgment reinstated the jury's original allocation of fault of 25 percent to defendant, which had been stricken by the court. The amended judgment further reduced the judgment by $92,628.64, the amount of a workers' compensation lien purchased by the defendant. The amended judgment for plaintiff thus changed the amount of the judgment from $344,000 to $109,275.76, including costs of $1,904.40. The amended judgment was filed on February 23, 1993, and notice of entry of amended judgment was filed on February 25, 1993, having been served on plaintiff's counsel the previous day.

The following day, February 26, 1993, defendant filed a notice of appeal, stating: PJMC "hereby appeals ... from the judgement entered on December 7, 1992,[ ¹] in Department 64 of the Los Angeles Superior Court.... [p] Entry of judgement was served by Defendant and Appellant [PJMC] on December 28, 1992." The notice of appeal further stated that the defendant's motions for new trial and for judgment notwithstanding the verdict were denied. Finally, it stated: "Amended judgment was entered on February 23, 1993, and Entry of Amended Judgment was served by Defendant and Appellant [PJMC] on February 24, 1993."

On or about March 11, 1993, after learning of the purported amended judgment, plaintiff filed "Notice of Intention to Move to Vacate and Enter a Difference [sic] Judgement [sic] (CCP § 663)," on the basis that the trial court should vacate the amended judgment entered after jury trial because it was inconsistent with the jury's special verdict. ² Plaintiff's motion was eventually placed off calendar "pursuant to a stay having been issued." The "stay" apparently referred to the fact that defendant had filed a notice of appeal.

This court then considered the appeal in which PJMC admittedly raised only issues regarding attorney misconduct and evidentiary error. ³ On November 21, 1995, we affirmed the judgment, stating in the factual portion of the opinion: "A net judgment in favor of respondent was awarded against appellant in the amount of $344,000. Appellant appeals from the judgment. There are only two items of error claimed: (1) that the trial court improperly allowed opinion testimony by respondent's rebuttal expert; and (2) that respondent's trial counsel was guilty of misconduct." The fact an amended judgment had been entered was mentioned by PJMC but not otherwise mentioned.

The defendant did not file a petition for rehearing pointing out the alleged error in the amount stated in the opinion to be the net judgment, or requesting that the opinion be corrected.

On January 26, 1996, this court caused the remittitur to be filed in the superior court. Thereafter, a clerk of the superior court affixed a stamp to the amended judgment (not the original judgment) indicating "Judgement [sic] is affirmed by District Court of Appeal."

The plaintiff then attempted to collect from PJMC the $344,000 judgment. Defendant refused, claiming the $344,000 stated in this court's opinion was an error.

On May 7, 1996, plaintiff filed in the trial court a "Notice of Motion to Correct Court Clerical Error to Reflect the True Amount of PJMC filed opposition on May 14, 1996, representing that the amended judgment was entered "[u]pon motion by Pat Johnson and after a hearing by the Court." Plaintiff filed a reply on May 16, 1996, in which he noted that the amended judgment was presented to the trial court without notice to plaintiff or any opportunity to participate in a hearing. PJMC filed an additional response on May 22, 1996, in which defense counsel conceded that his law clerk had erroneously stated in the initial opposition to the motion to vacate the amended judgment "that there had been a 'motion' to amend the judgment when in fact I had simply submitted a Proposed Amended Judgment for the Court's consideration."

                the Jury's Verdict, CCP §§ 473, 663, Labor Code § 3856(b)(c)," seeking to have the trial court vacate the amended judgment. 4  Plaintiff argued therein:  "The correct judgment was entered on December 14, 1992, within twenty-four hours after the verdict was rendered ... [and] Notice of Entry of Judgment [67 Cal.App.4th 1235] given on December 30, 1992, and the subsequent attempted second entry of 'Amended Judgment' was in excess of the court's jurisdiction, since the court had previously denied defendant's Motion for New Trial and Judgment N.O.V. and had lost jurisdiction to effectuate a second and different judgment of a verdict after having the jury further deliberate to clarify the

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