Judge Audra Mori, Case 18STCV05087 2022-12-16 Tentative Ruling

Plaintiff Rholla Ghally (“Plaintiff”), a minor by and through her guardian ad litem, Emad Guirguis (“Guirguis”), filed this action against defendants Santa Fe Management, Inc. and 208 Cornuta Apartment Company, L.P. for damages arising out of a slip and fall on Defendant’s property.

An expedited petition to approve compromise was filed in this matter on October 2, 2020, though which approval of a settlement pertaining to Plaintiff was sought. On October 7, 2020, an order approving the compromise and an order to deposit money into a blocked account were signed and filed by the Court. An Order to Show Cause (“OSC”) Re: Status of Filing of Proof of Deposit was set for April 28, 2021. After there were no appearances by or for either party, the OSC was continued to May 27, 2021, and an OSC Re: Sanctions against Plaintiff’s counsel of record, Howard S. Blumenthal (“Blumenthal”), in an amount up to $1,000 was set for the same date and time. On May 27, 2021, there were no appearances by or for either party. The Court imposed sanctions of $1,000 against Blumenthal, and Plaintiff’s complaint was ordered dismissed without prejudice. (Min. Order, May 27, 2021.)

At this time, Plaintiff seeks a nunc pro tunc order correcting the spelling of Plaintiff’s name and date of birth in the orders approving the compromise and to deposit money into a blocked account. Plaintiff asserts that the errors have deprived Plaintiff from the net settlement proceeds to which Plaintiff is entitled. Plaintiff provides that Plaintiff’s prior counsel incorrectly spelled her name when the action was filed, which is correctly spelled as Rolla Ghaly, not Rholla Ghally. Further, Plaintiff provides that Plaintiff’s prior counsel incorrectly identified her date of birth in the orders as September 14, 2005, instead of the correct date of June 28, 2004. Plaintiff has filed proof of service of the moving papers on Defendants. To date, no opposition has been received.

“The California Supreme Court has circumscribed the grounds on which an order may be entered nunc pro tunc. A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. [Citations.] …” (Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1265-66.) “ ‘ “The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made.” ’ ” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890.)

“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 to correspond with what it would have been but for the inadvertence.” (Makovsky v. Makovsky (1958) 158 Cal.App.2d 738, 742 [omitting internal quotations].) Clerical errors in the names of parties may be corrected nunc pro tunc. (See e.g., In re Estate of Goldberg (1938) 10 Cal.2d 709, 714-16 [correcting omission of the name of a distributee under a will in the decree of distribution], and Fay v. Stubenrauch (1904) 141 Cal. 573, 574-75 [missing initial in party’s name was merely a clerical error in decree that court had inherent power to correct].)

Here, Plaintiff provides that her prior counsel misspelled her name in the complaint and in the orders submitted with the expedited petition minor’s compromise signed on October 7, 2020. The relevant orders refer to Plaintiff as Rholla Ghally, but the correct spelling of Plaintiff’s name is Rolla Ghaly. Additionally, the order approving the compromise lists Plaintiff’s birthdate incorrectly as September 14, 2005, but Plaintiff’s correct birthdate is June 28, 2004. The Court has jurisdiction to correct Plaintiff’s name in the relevant orders nunc pro tunc. (7 Witkin, Cal. Procedure (6th ed. 2022) Judgment § 69, et seq.; see Fay, 141 Cal. at 574-75.) Plaintiff, Guirguis, and Plaintiff’s current counsel submit declarations stating that Plaintiff’s name was misspelled in the orders approving the compromise, and that they contain an incorrect birthdate. The declarants provide that although the correct name and birthdate were given to Plaintiff’s prior counsel, that counsel misspelled Plaintiff’s name and included an incorrect birthdate. “ ‘In these times busy judges must of necessity rely heavily upon the attorneys to prepare orders and judgments accurately so that they express that which was done at the trial and that which the judge had called for.’ ” (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 507.) Consequently, while Plaintiff’s prior counsel made the mistakes in drafting the pleadings and the orders pertaining to the expedited minor’s compromise petition for Plaintiff, the errors were inadvertent and clerical. (Ibid. [“If a trial judge through inadvertence or mistake signs an order different from that which he intended because of the error of an attorney draftsman, it may readily be corrected”.].)

The Court, therefore, will nunc pro tunc correct Plaintiff’s name and date of birth in the relevant orders. The Court issues the following order to reflect this: (1) As to the order approving the compromise of pending action on Judicial Council form MC-351 signed and filed on October 7, 2020, the name “Rholla Ghally” is ordered stricken from each page, and the name “Rolla Ghaly” is inserted in each page, and (2) on page 4 at item 8c(2), the date of birth of “9/14/2005” is ordered stricken, and the date of “6/28/2004” is inserted in its place. (3) As to the order to deposit money into a blocked account signed and filed on October 7, 2020, the name “Rholla Ghally” is ordered stricken from item 2 on page 1, and Plaintiff’s correct name of “Rolla Ghaly” is inserted in its place.

Hon. Audra Mori

Judge of the Superior Court