Judge James C. Chalfant, Case Number: 20STCP03720, Date: 2023-10-10 Tentative Ruling

Petitioner Feah, LLC (“Feah”) moves to amend the Judgment and rectify a clerical error so that the Judgment reflects Feah’s prior dismissal of various causes of action with prejudice.

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

Petitioner Feah commenced this proceeding on November 9, 2020 against Respondent City of El Monte (“City”) and Real Parties-in-Interest EEL–El Monte (“EEL”), Nibble This–El Monte (“Nibble”),[2] and Light Box Leasing Corp. (“Light Box”). The operative pleading is the Second Amended Petition (“SAP”), filed on March 30, 2021 and alleging causes of action for (1) traditional mandamus, (2) violation of equal protection and due process, (3) unlawful fee, and (4) inverse condemnation.[3] The verified SAP alleges in pertinent part as follows.

Feah is an unsuccessful applicant for one of six retail storefront commercial cannabis licenses issued by the City. The City did not follow its Guidelines when scoring the applications, favored certain applicants based on campaign contributions and personal relationships, illegally rewrote the finalized grading rubric to ensure favored applicants would receive licenses, illegally changed scores to ensure favored applicants would win, and made obvious scoring and mathematical calculation errors that prejudiced Feah’s application.

On December 3, 2019, the City Council adopted Ordinance No. 2960, codified in El Monte Municipal Code (“EMMC”) sections 5.18.010 et seq. (the “Ordinance”), which authorized adult-use and medicinal commercial cannabis retail, cultivation, manufacturing, distribution, and testing in the City. The City promulgated the Guidelines pursuant to the Ordinance. The Guidelines outlined a detailed, step-by-step process for preparing and submitting commercial cannabis business applications to the City. The Guidelines also set out detailed Evaluation Criteria to be used in scoring and evaluating applications. The Guidelines required that a “third-party consultant review[] each application in detail and scores the applications based on the Evaluation Criteria.”

On June 15, 2020, Feah submitted its application and paid a fee of $20,371.19. To obtain the location necessary for the application, Feah entered into a Binding Term Sheet for Future Lease Agreement with a landowner which required a non-refundable $50,000 deposit. The lease was contingent upon Feah obtaining a retail cannabis license. Feah lost the lease and the deposit when it did not receive a retail cannabis license.

The City received 19 applications for a cannabis license. The Ordinance imposes a ministerial duty on the City to reject incomplete applications. The City reviewed the applications and determined that only 16 applications were complete. The 16 applications, including Feah’s application, moved to the Phase 3 scoring process.

On July 7, 2020, the City entered into a contract with SCI Consulting Group (“SCI”) for the processing of cannabis applications based on evaluation criteria approved by the City. The City failed to comply with the Guidelines by assigning City staff, rather than SCI, to score certain sections of the applications. The City staff intervened to redo SCI’s scores and rewrite the grading rubric to ensure that favored applicants would win licenses. The City prematurely issued licenses to the winners and made obvious errors in scoring Feah’s application. The winning applicants also made campaign donations to ensure their applications would be in the top six.

The City failed to carry out its ministerial duty to comply with the Ordinance and the Guidelines by improperly scoring the applications and bit also provided preferential treatment to certain applicants. The Lewis Group colluded to make the exact same Community Benefits contribution, and their applications should be rejected for this collusion. The City’s method of scoring was in direct conflict with the Guidelines, which required that all applications be scored in their entirety by a neutral third-party consultant. The City’s failure to comply with this requirement violated Feah’s right to due process.

On November 18, 2020, the court denied Feah’s ex parte application for a temporary restraining order and order to show cause re: preliminary injunction.

On January 8, 2021, the court declined to relate the instant case and Case No. 20STCP04044 pursuant to CRC 3.300(a).

On April 6, 2021, the court stayed the SAP’s sixth cause of action for inverse condemnation. The court ordered the parties to meet and cover to discuss every issue raised in a discovery motion and the City indicated that it would provide a privilege log.

On May 18, 2021, the court noted that discovery had been stayed by EEL’s anti-SLAPP motion. On August 10, 2021, the court granted in limited part the anti-SLAPP motion and lifted the discovery stay.

On September 8, 2021, Real Party EEL filed a notice of appeal of the court’s decision on the anti-SLAPP motion. Real Parties Nibble, Light Box, Summit Location Plans, and Feah also filed notices of appeal from the court’s decision on the anti-SLAPP motion.

On November 4, 2021, the court granted Real Party EEL’s motion for attorney’s fees against Feah for $13,606.70.

On August 9, 2022, the appellate court issued remittiturs dismissing the appeals of Real Parties EEL and Nibble. On November 1, 2022, the appellate court issued a remittitur dismissing Feah’s appeal.

On January 26, 2023, EEL filed its Answer. On January 30, 2023, Real Parties Light Box and Summit Location Plans filed a joint Answer.[4]

On June 20, 2023, the City filed an Answer. On July 7, 2023, the court denied Feah’s ex parte application to strike the City’s Answer.

On October 10, 2023, the court denied Feah’s motion for sanctions against the City except in the limited amount of $2,000.

On November 7, 2023, the court entered Judgment denying five causes of action under the SAP and dismissing the sixth without prejudice.

On January 22, 2024, Feah filed a dismissal of the SAP’s sixth cause of action with prejudice.

On January 25, 2024, Feah filed a dismissal of the SAP’s second and fourth causes of action with prejudice.

On February 1, 2024, the court denied Feah’s ex parte application to amend the November 7, 2023 Judgment, ruling that it had no jurisdiction until a remittitur was issued.

A court of general jurisdiction has power after final judgment and regardless of lapse of time to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that such records will conform to and speak the truth. In re Roberts, (1962) 200 Cal.App.2d 95, 97; People v. Bueno (1960) 177 Cal.App.2d 235. This inherent power of the court is not suspended by the pendency of an appeal or a habeas corpus proceeding. In re Roberts, supra, 200 Cal.App.2d at 97.

Trial courts have the authority to enter nunc pro tunc orders to address clerical errors, but not judicial errors. Sannmann v. Department of Justice, (“Sannmann”) (2020) 47 Cal.App.5th 676, 683 (citing People v. Kim (2012) 212 Cal.App.4th 117, 124). A nunc pro tunc order or judgment is one entered as of a time prior to the actual entry, so that it is treated as effective at the earlier date. In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 851. This retroactive entry is an exercise of inherent power of the court, the object being to do justice to a litigant whose rights are threatened by a delay that is not the litigant's fault. Id.

A court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. In re Candelario, (“Calendario”) (1970) 3 Cal.3d 702, 705. The distinction between clerical and judicial error lies in whether the error was made in rendering the judgment, or in recording the judgment rendered. Sannmann, supra, 47 Cal.App.5th at 683. Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. Id.; Sannmann, supra, 47 Cal.App.5th at 683; 46 Am.Jur.2d, Judgments, §202.

Any attempt by a court to revise its deliberately exercised judicial discretion under the guise of correcting clerical error is not permitted. Calendario, supra, 3 Cal.3d at 705. An amendment that substantially modifies the original judgment or materially alters the rights of the parties may not be made by the court under its authority to correct clerical error, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. Calendario, supra, 3 Cal.3d at 705; Morgan v. State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682.

On November 9, 2020, Feah filed its Petition alleging six causes of action. Hong Decl., ¶2. On March 30, 2021, Feah filed the SAP. Hong Decl., ¶¶ 2, 9, Ex. D. The SAP explained that the Petition’s second and fourth causes of action, traditional mandamus claims for violations of the Dormant Commerce Clause and the EMMC, were withdrawn without prejudice in response to a meet and confer before a demurrer. Hong Decl., ¶9, Ex. D.

On September 26, 2023, this court issued a decision denying all causes of actions from the SAP currently before it. Hong Decl., ¶4, Ex. A (“Decision”). A footnote in the Decision’s Statement of the Case acknowledged the SAP’s withdrawal of the Petition’s second and fourth causes of action, but said it was with prejudice. Decision, p. 1. Of the remaining causes of action, the final inverse condemnation claim remained. Decision, p. 37. The court ordered counsel to discuss whether Feah would continue to pursue the inverse condemnation claim, and to prepare a proposed Judgment if it decided not to do so. Decision, p. 37.

On November 7, 2023, the court entered the Judgment stating the SAP’s first five causes of action were denied, and the sixth cause was dismissed without prejudice. Hong Decl., ¶¶ 5-6, Ex. B. The proposed Judgment had said the first five causes of action were dismissed with prejudice. Hong Decl., ¶5, Ex. B.

On December 18, 2023, Feah filed notice that it was appealing the Judgment. Hong Decl., ¶7, Ex. C. Feah’s counsel only noticed the Judgment’s dismissal of the sixth cause without prejudice after it filed an appeal. Hong Decl., ¶¶ 7-8.

In January 2024, Feah dismissed the second, fourth, and sixth causes of action. Hong Decl., ¶¶ 16-17, Exs. G-H. On January 31, 2024, Feah applied ex parte to amend the Judgment as discussed in this motion, including to reflect the recent dismissals of three causes of action. Hong Decl., ¶18. On February 1, the court denied the ex parte application and set a hearing for the motion. Hong Decl., ¶19.

A dismissal of a cause of action without prejudice keeps a cause of action legally alive, subject to the statute of limitations. Hong Decl., ¶10. Feah wants to ensure there are no issues concerning appealability and sought to dismiss all remaining causes of action “with prejudice.” Hong Decl., ¶¶ 10-11. Feah has supplied the court with a new proposed Judgment correcting this error nunc pro tunc, listing the second, fourth, and sixth causes of action as dismissed with prejudice and the rest denied. Hong Decl., ¶11; Mot. Ex. A. This would allow the pending appeal to continue unimpeded without any potential threat of future questions regarding appealability raised in the proceedings. Hong Decl., ¶11.

In January 2024, Feah met and conferred with the City via email about its intent to request amendment of the Judgment. Hong Decl., ¶13, Ex. E. After various emails, the City called the application an “idle act” on January 30, 2024. Hong Decl., ¶13, Ex. E.

In Kurwa v. Kislinger, (“Kurwa”) (2013) 57 Cal.4^th 1097, 1105 (Hong Decl., Ex. F), the court held that when some causes of action are voluntarily dismissed but the parties agree to preserve them for potential litigation upon conclusion of the appeal from the judgment rendered, the trial court’s judgment fails to complete the disposition of all the causes of action between the parties. Hong Decl., ¶13. This means such a judgment is not appealable. Hong Decl., ¶13.

Here, there was no agreement to waive an applicable statute of limitations. Hong Decl., ¶14. Feah does not plan to resurrect any cause of action previously dismissed without prejudice. Hong Decl., ¶15. To the extent that any dismissed cause of action without prejudice is legally live, Feah wants to ensure the court’s Judgment is truly final and there are no lingering claims. Hong Decl., ¶15.

This motion does not seek to substantively alter the Judgment or its effect. Hong Decl., ¶20. It seeks only to ensure that all efforts have been exhausted in the trial court and confirm the November 7, 2023 Judgment is truly final for appealability purposes. Hong Decl., ¶20. This will also give the appellate court a full and complete record of all efforts undertaken to ensure there is no lingering issue regarding appealability. Hong Decl., ¶20.

On October 25, 2023, Feah emailed that it would dismiss the sixth cause of action for inverse condemnation. Pilchen Nov. 2023 Decl., ¶3. On October 27, the City gave Feah a “first look” at the City’s proposed Judgment. Pilchen Nov. 2023 Decl., ¶4, Ex. BB. On October 31, Feah asked the City to amend the proposed Judgment so that the sixth cause of action was dismissed without prejudice and the rest were dismissed with prejudice. Pilchen Nov. 2023 Decl., ¶4, Ex. BB. The City made this change, and Feah approved it later that day. Pilchen Nov. 2023 Decl., ¶4, Ex. BB.

Also on October 31, the City served all parties with the proposed Judgment. Pilchen Nov. 2023 Decl., ¶¶ 2, 5, Ex. AA. As Feah requested, the proposed Judgment said the sixth cause of action was dismissed without prejudice and the rest were dismissed with prejudice. Pilchen Nov. 2023 Decl., Ex. AA. Each party sent the City an email of non-objection. Pilchen Nov. 2023 Decl., ¶5.

The court’s Judgment states that the SAP’s first five causes of action are denied, and the sixth cause is dismissed without prejudice. Hong Decl., ¶¶ 5-6, Ex. B. Feah moves to amend the Judgment to state the SAP’s second, fourth, and sixth cause of action are dismissed with prejudice. Mot. Ex. A.

On December 18, 2023, Feah filed notice that it had appealed this court’s Judgment. Hong Decl., ¶7, Ex. C. 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. CCP §916(a). The trial court may proceed upon any other matter embraced in the action and not affected by the Judgment or order. Id.

The court (Judge Beckloff) previously denied Feah’s ex parte application to amend the Judgment. Hong Decl., ¶¶ 18-19. As the City notes, one reason for the denial was the court’s lack of jurisdiction while the case is appeal. The City asserts that the court has no jurisdiction to hear this motion while the appeal is pending. Opp. at 2.

The City cites Varian Medical Systems, Inc. v. Delfino, (“Varian”) (2005) 35 Cal.4th 180, 187, 196, in which the California Supreme Court held that while the denial of an anti-SLAPP motion was on appeal, the trial court lacked subject matter jurisdiction over the matters on trial. The trial court is divested of jurisdiction of the subject matter during the period of review, and it has no power to vacate or modify the Judgment or otherwise to deal with the cause. Id. at 197. This is true even if the subsequent proceedings cure any purported defect in the Judgment or order appealed from. Id. Opp. at 2.

Feah does cite a case that addresses jurisdiction, In re Roberts, supra, 200 Cal.App.2d at 97, which held that a trial court has inherent power to correct clerical errors in its Judgment that is not suspended by the pendency of an appeal. Mot. at 5. Clerical errors only involve errors in recording the Judgment actually rendered. Sannmann, supra, 47 Cal.App.5th at 683. Varian does not refute this jurisdiction for clerical error. If the requested amendments address clerical errors, this court has jurisdiction to amend the Judgment.

Trial courts have the authority to enter nunc pro tunc orders to address clerical errors, but not judicial errors. Sannmann, supra, 47 Cal.App.5th at 683. The distinction between clerical error and judicial error is whether the error was made in rendering the Judgment, or in recording the Judgment rendered. Id. at 683. Any attempt by a court to revise its deliberately exercised judicial discretion, under the guise of correcting clerical error, is not permitted. Calendario, supra, 3 Cal.3d at 705.

On November 9, 2020, Feah filed its Petition alleging six causes of action. Hong Decl., ¶2. On March 30, 2021, Feah filed an SAP stating that the second and fourth causes of action are withdrawn without prejudice. Hong Decl., ¶¶ 2, 9, Ex. D.

On September 26, 2023, the court issued a Decision denying the first five causes of actions. Decision, p. 37. This did not include the sixth cause of action for inverse condemnation, and the parties were ordered to discuss whether Feah would continue to pursue the sixth claim. Decision, p. 37.

On November 7, 2023, the court entered the Judgment stating that the SAP’s first five causes of action are denied, and the sixth cause is dismissed without prejudice. Hong Decl., ¶¶ 5-6, Ex. B. Feah noticed the dismissal of the sixth cause without prejudice after it filed an appeal. Hong Decl., ¶¶ 7-8.

Feah now asks the court to amend the Judgment to state that the first, third and fifth causes of action are denied and the second, fourth, and sixth causes of action are dismissed with prejudice. Mot. Ex. A. Although Feah provides evidence that it dismissed these three claims with prejudice in January 2024 (Hong Decl., Exs. G-H), the purported dismissals are irrelevant to whether the Judgment contains a clerical error. The Judgment lacks a clerical error if in fact the second and fourth causes of action were denied, and the sixth was denied without prejudice, as of November 7, 2023.

There was no clerical error for the sixth cause of action. The court never adjudicated that cause of action, and the court gave Feah time to decide whether it wanted to pursue it. After Feah decided not to do so, the City gave Feah a “first look” at the City’s proposed Judgment. Feah stated that it intended to dismiss the sixth cause of action without prejudice. Pilchen Nov. 2023 Decl., ¶4, Ex. BB. Feah then accepted the City’s language to that effect in the proposed Judgment. Id. When the court signed the Judgment, it amended the language for the first five causes to reflect their denial and not dismissal, but it made no change to the parties’ proposed language for the sixth cause. Feah cannot now amend the Judgment to state that the sixth cause of action is dismissed with prejudice because there was no clerical error by the court.

There was a clerical error for the second and fourth causes of action,[6] but not the error Feah alleges. The SAP withdrew both causes of action without prejudice. Hong Decl., ¶9, Ex. D. (Feah should have dismissed these two causes and not simply withdrawn them, and it failed to do so.) A footnote in the Decision states that the SAP withdrew the second and fourth causes of action with prejudice. Decision, p. 1. This was incorrect. These two causes of action were never were dismissed before trial with prejudice. Nor were they decided on the merits by the court. Thus, there is a clerical error in the Judgment stating that the second and fourth causes of action are denied, when they should have been dismissed without prejudice just like the sixth cause of action.

Feah argues that the failure to resolve all claims with the finality of prejudice could make the Judgment unappealable under Kurwa, supra, 57 Cal.4^th at 1105. Hong Decl., ¶¶ 13, 15. The City responds that Kurwa has no application because, unlike that case, the City and Feah have no tolling agreement to revive the claims after appeal. Opp. at 3-4. This seems plainly correct, but it is also irrelevant to the court’s decision on clerical error.

The motion to amend the Judgment is granted solely to correct a clerical error. The Judgment is ordered to be amended to reflect that the second and fourth causes of action are dismissed without prejudice, not that they are denied.

[1] The City failed to lodge a courtesy copy of its opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in all future cases.

[2] Real Parties EEl and Nibble, along with non-parties SIG–El Monte (“SIG”), Tradecraft Farms (“Tradecraft”), SHL–El Monte (“SHL”), are collectively referred to as the “Lewis Group”.

[3] The SAP states that Feah has withdrawn without prejudice its traditional mandamus claims for violation of the Dormant Commerce Clause and the EMMC.

[4] Light Box is now named Summit Location Plans, but the court will refer solely to Light Box herein.

[5] The various discovery hearings are not listed.

[6] Feah asserts that the City has conceded the request to amend the Judgment as to the second and fourth causes of action is well-placed. Reply at 2. It did not. The City only said that if the court determines a clerical error must be corrected as to those causes of action, the correction should be surgical and target only those causes of action. Opp. at 6.