Judge Jill Feeney, Case Number: BC498355, Date: 2024-02-08 Tentative Ruling

Plaintiff is the duly court-appointed settlement administrator in that certain civil class action pending in the Los Angeles County Superior Court under Case No. BC354961. On October 9, 2007, BC354961 was settled pursuant to which Plaintiff was to be paid by Defendants its costs and fees associated with the discharge of its duties as settlement administrator (the “Lakeland Settlement Agreement”). Plaintiff alleged it was an intended third party beneficiary under the terms of eth Lakeland Settlement Agreement.

On December 31, 2012, Plaintiff filed a complaint against Defendant Kalcheim Law Group alleging (1) breach of contract (third party beneficiary); (2) breach of contract (third party beneficiary); (3) breach of contract (third party beneficiary); (4) open book account; (5) account stated; and (6) quantum meruit. Plaintiff alleged damages in the amount of $65,988.09.

On January 13, 2013, Plaintiff filed an Amendment to the Complaint naming Kalcheim Legal P.C. as DOE 1. On January 23, 2013, Plaintiff filed an Amendment to the Complaint naming Michel Henri Kalcheim aka Mitch Kalcheim as DOE 2.

On October 7, 2013, default was entered against Defendant Kalcheim Legal P.C. (DOE 1). On November 18, 2013, default was entered against Defendants Kalcheim Law Group P.C., Michel Henri Kalcheim aka Mitch Kalcheim (DOE 2).

On May 28, 2019, Defendants Kalcheim Law Group P.C.; Kalcheim Legal P.C. and Michel Henri Kalcheim aka Mitch Kalcheim filed a motion to vacate pursuant to CCP §473(d). On July 10, 2019, the Court denied the Motion to Vacate after taking the matter under submission.

On September 5, 2019, Defendants appealed the Court’s denial of the Motion to Vacate. On December 8, 2020, the Court of Appeals issued an unpublished opinion affirming the Court’s order denying the Motion to Vacate. On April 1, 2021, the Court granted Plaintiff’s Motion for Release Cash Deposit in Lieu of Bond to Plaintiff as Prevailing Party on Appeal.

On January 4, 2024, Plaintiff filed the instant Motion for Order Directing Court Clerk to File Application for Renewal of Judgment Nunc Pro Tunc as of December 14, 2023. Plaintiff served the instant motion on Defense counsel and Defendants at the address of Defense counsel. No opposition has been filed as of February 5, 2024.

“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).)

“It is well settled that a court has the inherent power to correct a clerical error in its judgment so that the judgment will reflect the true facts. The power of a court to correct clerical mistakes in judgments is also a statutory power pursuant to section 473.” (Estate of Douglas (2022) 83 Cal.App.5th 690, 695.)

“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. 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. Any attempt by a court, under the guise of correcting clerical error, to revise its deliberately exercised judicial discretion is not permitted. A judicial error is the deliberate result of judicial reasoning and determination 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.” (Estate of Douglas, supra, 83 Cal.App.5th at 695.)

“Where…the defect…is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. That should create no more difficulty than returning all the documents with a notice pointing out the defects….The functions of the clerk are purely ministerial. The clerk has no discretion to reject a complaint that substantially conforms to the local rules.” (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777–778.) A “paper is deemed filed when it is deposited with the clerk with directions to file the paper.” (Id. at 778.)

“[R]espondent applied to the clerk to renew that existing judgment using the Judicial Council form and failed to include the capacity of the judgment debtor. The clerk's entry of the renewal based on that application was ministerial, not judicial, and created no new or separate judgment, but merely extended the time in which the original judgment could be enforced. As such, there was no exercise of judicial discretion, judicial reasoning, or judicial determination connected to this application. The trial court did not abuse its discretion in determining this was a clerical error.” (Estate of Douglas (2022) 83 Cal.App.5th 690, 696 (clerk's renewal of that judgment without specifying the judgment debtor's capacity was a clerical error).)

“If the clerk does not file a document because it does not comply with applicable filing requirements or because the required filing fee has not been paid, the court must promptly send notice of the rejection of the document for filing to the electronic filer. The notice must state the reasons that the document was rejected for filing.” (CRC Rule 2.259(b).)

Plaintiff filed its Application for Renewal of Judgment on December 14, 2023. (Motion, Aires Dec., ¶6.) The deadline to file the application for renewal was 10 years from entry of judgment or December 17, 2023, a Sunday, resulting in the deadline falling on December 18, 2023 per CCP §16. The court clerk ultimately rejected the Application on December 27, 2023 due to a defect in the form Plaintiff used. (Motion, Ex. A.) Plaintiff’s counsel used an outdated form EJ 190. (Motion, Aires Dec., ¶8.) Plaintiff immediately resubmitted a corrected Application for Renewal on December 27, 2023. (Id. at ¶9.) The court clerk again rejected the Application on December 29, 2023, citing the expiration of the 10-year deadline to renew the judgment.

Given the lapse in time between the timely submission of the Application for Renewal of Judgment on December 14, 2023, four days before expiration of the 10-year deadline to file for renewal of judgment, and the date on which the clerk issued notice of the rejection, December 27, 2023, the failure to timely enter the Application for Renewal of Judgment was the result of clerical error. (CRC Rule 2.259(b).) The clerk is ordered to enter Renewal of Judgment on December 14, 2023.

Accordingly, Plaintiff/Judgment Creditor DR Group LLC fka Rosenthal & Company LLC’s Motion for Order Directing Court Clerk to File Application for Renewal of Judgment Nunc Pro Tunc as of December 14, 2023 is granted.