Friday, September 2, 2011



Void on the face judgments “never die” in the State of California
CCP  473, and 473(a) has no direct reference to void orders, i.e.,
 the time limitations is not applicable.
Reid v. Balter (1993) 14 Cal App 4th 1186,1194

     Motions to vacate void judgments may be made at any time after judgment. County of Ventura v. Tillett, 133 Cal. App. 3d 105, 110.).

     A judgment is void on its face if the trial court exceeded its subject matter or personal jurisdiction by granting relief that it had no power to grant.
   Jurisdiction cannot be conferred on a trial court by the consent of the parties. (Summers v. Superior Court (1959) 53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts v. Roberts (1966) 241 Cal. App. 2d 93, 101 [50 Cal. Rptr. 408].) Thus, the fact that a judgment is entered pursuant to stipulation does not insulate the judgment from attack on the ground that it is void. In People v. One 1941 Chrysler Sedan (1947) 81 Cal. App. 2d 18, 21-22 [183 P.2d 368], the court explained: "[P]rior to 1933 the provisions of section 473 and of section 473a were contained in one section, so that there was both a six-month and a one-year limitation found in the section, applicable, of course, to different situations. In that year the original section 473 was split into two parts. Old paragraph 3 of section 473 remained in that section. That paragraph refers to judgments taken against a party through his 'mistake, inadvertence, surprise, or excusable neglect,' and requires the motion to be made within six months. The paragraph has no direct reference to void judgments. Section 473a (formerly and until 1933 a part of section 473) provides for a particular situation -- where summons has not been personally served (even though constructive service is permitted) the court may allow the aggrieved party within one year to answer on the merits. Both the third paragraph of section 473 and section 473a are primarily directed to setting aside valid judgments. Prior to 1933, section 473 contained no express provision relating to the power of courts to set aside void judgments.
     Prior to that time the law was settled that courts of record possessed inherent power to set aside a void judgment, whether or not it was void on its face, provided that, as to a void judgment not void on its face, the motion was made within a reasonable time. If the motion was not made within a reasonable time the party was relegated to an action in equity. In determining whether the motion was made within a reasonable time the courts applied by analogy the one-year provision of old section 473, now section 473a. Thus, when these old cases referred to the time limits of section 473 they were referring to the one-year limitation, not the six-month limitation. When the Legislature revamped section 473 in 1933, and broke it down into two sections, they added to section 473 paragraph 4. This paragraph was formerly section 900a of the Code of Civil Procedure, applying to courts not of record. So far as pertinent here that paragraph now reads: 'The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.' (For a discussion of the 1933 amendments to section 473 see Estate of Estrem, 16 Cal. 2d 563, 572 [107]. It is well settled that erroneous final judgments serve as a bar to further litigation on the action, whereas in general void judgments may be collaterally attacked.

     A void judgment or order may properly may be attacked at any time, directly or collaterally. The doctrine of res judicata does not apply to void judgments or orders.

     "Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]" (7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.)

     California Civil Procedure 437(d), provides that a court, on noticed motion, may set aside void judgments and orders. Courts also have inherent power to set aside a void judgment.
 Courts also possess inherent power to grant such relief.(Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.)  `It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]' [Citations.]" (Ibid; accord Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761"...a default that is void on the face of the record when entered is subject to challenge at any time irrespective of lack of diligence in seeking to set it aside within the six-month period of section 473."].). 

     The normal rule that "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order" ( § 916, subd. (a)) does not apply. "[A] court may set aside a void order at any time."

    An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree -- a void order." (MacMillan Petroleum Corp. v. Griffin (1950) 99 Cal. App. 2d 523, 533 [222 P.2d 69]; accord: People v. West Coast Shows, Inc. (1970) 10 Cal. App. 3d 462, 467 [89 Cal. Rptr. 290]; Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, 641-642 [239 P.2d 650]; and SEE: 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, pp. 4024-4025.) EXAMPLE:Consequently, notwithstanding the pending appeal from the earlier order of November 25, 1969, which necessarily carried with it a consideration of the validity of the judgment entered October 31, 1967, the order of August 14, 1970, limited to those aspects which trim off the void judgment and orders, should be affirmed. 

     The courts' power to control their own judgments is statutory. 19 Cal. 2d at p. 573. Apart from statutory authority, the courts have the inherent power to correct clerical errors in their judgments or to vacate void judgments.

     Although it has been held, by analogy to section 473a, that such motions should be made within one year from the date the judgment sought to be set aside was rendered (Washko v. Stewart, 44 Cal. App. 2d 311, 317 [112 P.2d 306]; Richert v. Benson Lbr. Co., 139 Cal. App. 671, 674-676 [34 P.2d 840]) this time limitation does not apply where the judgment is based on a fraudulent return. (Washko v. Stewart, supra, p. 318; Richert v. Benson Lbr. Co., supra, p. 677.).

It is true that the statute of limitations does not apply to an archaic suit in equity to vacate a void judgment. (Cadenasso v. Bank of Italy, supra, p. 569; Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].) However,  this rule holds as to all void judgments. In the two cases cited, People v. Massengale and In re Sandel, the courts hearing the respective appeals confirmed the judicial power and responsibility to correct void judgments (in excess of jurisdiction), therefore, the rule holds up to dismissal of void judgment in all cases.