Judge: Layne H. Melzer, Case: 2011-00439420, Date: 2023-05-18 Tentative Ruling

Plaintiff June Masaoka

Motion For Request to Renew Judgment Entered

Plaintiff June Masaoka’s Motion For Request to Renew Judgment Entered on 7/23/2012 is granted.

Plaintiff moves under CCP section 473(b), for relief allowing her to file her renewal of judgment application, effective as of July 22, 2022. The Court finds CCP section 473(b) is not applicable, because it only applies when relief is sought “from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Nevertheless, under the circumstances, the Court exercises its discretion to grant the motion under its inherent equitable authority. (Code Civ. Proc. § 128.)

Here, after Plaintiff’s attempts to electronically file her renewal application were rejected, Plaintiff attempted to timely file her renewal application, at the filing window, on July 22, 2022. (Code Civ. Proc. § 683.130, subd. (a).) The clerk’s office refused to accept the filing because Plaintiff, acting in pro per, had yet to file a Substitution of Attorney form reflecting that she was no longer being represented by Mr. Zoolalian. Although the court sympathizes with the frustration of the Clerk’s office in having to process an application made at the “eleventh hour,” the Court believes the better course of action would have been to allow Plaintiff to file her renewal application, as there was no question that Plaintiff was “authorizing” the filing on her own behalf. That respondents may have been authorized to continue to serve Plaintiff’s counsel of record until the substitution was filed is no reason to refuse to allow Plaintiff to file documents on her own behalf, given her representation that she was no longer being represented by counsel. (See Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1309 [“Where the actual authority of the new or different attorney appears, courts regularly excuse the absence of record of a formal substitution and validate the attorney's acts, particularly where the adverse party has not been misled or otherwise prejudiced”].)

Because Plaintiff should have been permitted to timely file her Application for and Renewal of Judgment on July 22, 2022, the Court grants the application and permits the application to be filed nunc pro tunc as of that date. (See Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 778 [holding that a nunc pro tunc order is the proper remedy when clerk improperly rejected complaint for filing; “Because here the clerk had no proper basis for rejecting Rojas' complaint, it must be deemed filed when it was presented on November 7, 1996”]; Hess v. Gross (1943) 56 Cal.App.2d 529, 531 [“A nunc pro tunc order is allowed for the purpose of preserving the rights of litigants.”]; Dillon v. Superior Court of Nevada County (1914) 24 Cal.App. 760, 765 [“In our opinion the superior court had authority, on the showing made on the motion to dismiss the appeal, to treat the undertaking as filed of date October 14th, and that it was unnecessary to refer the matter back to the justice of the peace for correction or for any action on his part”].)

Lastly, the Court notes that, while there was a delay of seven months in bringing this motion, the delay was caused by Plaintiff having to locate her former legal representative, (to file the Substitution of Attorney), and to find new counsel that could assist her in bringing this motion without requiring fees that Plaintiff could not afford. Under these circumstances, Plaintiff is not “at fault” for the delay, as it could have been avoided had she been permitted to file her renewal application when she presented it on July 22, 2022.

Plaintiff is directed to present the Application For and Renewal of Judgment and the Notice of Renewal of Judgment, to the Clerk, by June 1, 2023, for filing. The application will be deemed filed as of July 22, 2022, when it was originally presented to the Clerk at the filing window.

Plaintiff shall give notice of the ruling.