Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00711, Date: 2024-06-14 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00711, Date: 2024-06-14 Tentative Ruling

Case Number: 23GDCV00711 Hearing Date: June 14, 2024 Dept: E

Hearing Date: 06/14/2024 – 8:30am

Case No: 23GDCV00711

Trial Date: N/A

Case Name: HEALTHY LIFE PHYSICAL THERAPY, INC., a California corporation v. ERG HOME HEALTH PROVIDER, INC., a California corporation; MARIA ISABEL BELZUNCE, an individual; and DOES 1-20 inclusive

[TENTATIVE RULING ON MOTION TO AMEND JUDGMENT]

Moving Party: Plaintiff, Healthy Life Physical Therapy, Inc.

Responding Party: No response by either Defendant.

RELIEF REQUESTED
“Plaintiff HEALTHY LIFE PHYSICAL THERAPY, INC., (the “PLAINTIFF”) pursuant to California Code of Civil Procedure §473(d), will and hereby does move this court for an order amending nunc pro tunc the judgment entered on May 6, 2024 (the “JUDGMENT”) in the following manner:

- The JUDGMENT, by clerical mistake of PLAINTIFF’s attorney, inadvertently represented the Defendant ERG HOME HEALTH PROVIDER, INC.’s (the “DEFENDANT”) as “ERG HOME HEALTH, INC.”

- The moving party requests that this court amend the JUDGMENT to reflect the correct version of DEFENDANT’s name on the Judicial Council Form JUD-100 that PLAINTIFF resubmits with this motion as EXHIBIT B.

This motion is made on the grounds that this clerical error prevents PLAINTIFF from obtaining a Writ of Execution to enforce the JUDGMENT. This Motion to Amend Judgment to Correct Clerical Error will be based on this notice, the memorandum of points and authorities, Michael Guloyan’s declaration filed herewith, and on such other and further oral and/or documentary evidence as may be presented at the hearing on the motion.”

(Pl. Mot. p. 2.)

Procedural
16/21 Day Lapse (CCP § 12c and § 1005(b)): No
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Uncertain because neither Defendant appeared/answered

Moving Papers: Notice/Motion; Guloyan Declaration

Opposition Papers: No Opposition

Reply Papers: No Reply

ANALYSIS
Plaintiff filed its Complaint on 4/7/2023 against ERG Home Health Provider, Inc., a California corporation; Maria Isabel Belzunce, an individual; and Does 1-20 inclusive. The Complaint alleges five causes of action.

On 5/6/2024, this Court entered default judgment against the Defendants listed on the JUD-100 form that Plaintiff submitted to the Court. On Plaintiff’s JUD-100 form, Plaintiff’s counsel listed the Defendants as “ERG Home Health, In a California corporation” and “Maria I. Belzunce.”

Plaintiff now moves under CCP § 473(d) to correct the name of “ERG HOME HEALTH, Inc.” to “ERG HOME HEALTH PROVIDER, INC., a California corporation” as listed on the Complaint.

CCP § 1005(b)
CCP § 1005(b) requires notice of 16 court days before the hearing. If notice is served by mail, the 16-day period of notice is increased five calendar days if the place of mailing and the place of address are within the State of California. (See CCP § 1005(b).)

Here, Plaintiff’s moving papers were served by U.S. Mail on May 22, 2024. The instant hearing is for Friday, June 14, 2024. Sixteen court days would be May 22, 2024; therefore, Plaintiff’s motion is not timely. Plaintiff did not account for the 5 calendar days for mailing the moving papers.

CCP § 473(d)
“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.” (CCP § 473(d).)

Plaintiff moves to correct one the Defendant’s name that was listed on the JUD-100 form that Plaintiff filed for when default judgment was entered against Defendants.

Plaintiff’s Complaint listed the Defendant at issue as ERG Home Health Provider, Inc., a California corporation; however, when Plaintiff filed the JUD-100 form that the Court signed, Plaintiff listed the Defendant as ERG Home Health, Inc., a California corporation.

Plaintiff explains that listing the Defendant’s incorrect name prevents Plaintiff from obtaining a Writ of Execution.

Plaintiff’s counsel’s declaration states that he inadvertently left out the word “Provider” when he filled out the JUD-100 form.

The Court notes that Plaintiff did not provide any case law as to what is considered a “clerical mistake” or “clerical error” and if an attorney’s clerical mistake in filling out default judgment paperwork is considered a “clerical mistake” under 473(d).

Based on the Court’s own research, the Court found the following case law with respect to what is considered a “clerical error” under 473(d) :

“A clerical error in the judgment includes inadvertent errors made by the court ‘which cannot reasonably be attributed to the exercise of judicial consideration or discretion.’ [Citations.] ‘Clerical error ... is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is “whether the error was made in rendering the judgment, or in recording the judgment rendered.” [Citation.] Any attempt by a court, under the guise of correcting clerical error, to “revise its deliberately exercised judicial discretion” is not permitted. [Citation.]’ [Citation.] A judicial error is the deliberate result of judicial reasoning and determination.” (Conservatorship of Tobias, supra, 208 Cal.App.3d at pp. 1034-1035, 256 Cal.Rptr. 525.) “ ‘The term “clerical error” covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected ....’ ” (Id. at p. 1035, 256 Cal.Rptr. 525.)

(Estate of Douglas (2022) 83 Cal.App.5th 690, 695.)

TENTATIVE RULING
The Court is considering either denying the motion without prejudice or continuing the instant hearing based on Plaintiff not providing proper notice under CCP § 1005(b). Plaintiff did not consider the 5 calendar days that must be added to the 16 court days.

Upon continuance or the filing of a new motion, it would likely aid the Court if Plaintiff presented case law supporting the proposition that the Court can correct the attorney’s error in the instant scenario under CCP § 473(d).

Further, the Court seeks clarification as to what Plaintiff means in its motion by “…requests the Court grant this motion and order the clerk of court file an amended judgment with the correct version of Defendant ERG’s name attached as “Exhibit B” in the Declaration of Michael Guloyan.” (Pl. Mot. p. 3.)