Judge: Lee W. Tsao, Case: 21NWCV00129, Date: 2024-06-11 Tentative Ruling



Case Number: 21NWCV00129    Hearing Date: June 11, 2024    Dept: C

Mari Alvarez vs Christian Erick Alvarez

Case No.: 21NWCV00129

Hearing Date: June 11, 2024 @ 9:30 a.m.

 

#1

Tentative Ruling

Plaintiff Mari Alvarez’s Motion to Vacate the Court’s October 21, 2021 Order regarding Monthly Mortgage Payments is DENIED.

On its own motion, the Court corrects its November 19, 2021 Order nunc pro tunc as set forth below. 

No sanctions are ordered.

Plaintiff to give notice.

 

Background

This quiet title action was filed by Plaintiff Mari Alvarez (“Plaintiff”) against Defendant Christian Erick Alvarez (“Defendant”) on March 4, 2021.  An unlawful detainer action was filed by Defendant against Plaintiff on March 16, 2021 in Case No. 21NWUD00198.  The parties were previously married, and a dispute arose between them regarding the ownership of their residence located at 11604 Leibacher Avenue, Norwalk, CA (“Subject Property”).  The parties continue to cohabitate in the subject property.

On October 21, 2021, a hearing was scheduled on Plaintiff’s Motion for Leave to File a Second Amendment Complaint, Motion for Consolidation, and Motion for Stay of the unlawful detainer action.  The Court issued a tentative ruling, heard argument, and took the matter under submission.  On November 19, 2021, the Court issued an order granting Plaintiff leave to file a second amended complaint, denying consolidation, and staying the unlawful detainer action.  As relevant here, the Court noted Defendant’s request that Plaintiff be ordered to deposit at least half of the monthly mortgage [paid by Defendant] into an escrow account in the event the Court stayed the unlawful detainer action.  Plaintiff did not oppose the request.  The Court made the following order: “Plaintiff is ORDERED to pay $850.00 into an escrow account on the 1st of every month until the completion of the UD action.” (Minute Order, November 19, 2021.)

Plaintiff now moves to vacate the Court’s Order on the grounds that Defendant misrepresented the actual amount of the mortgage payment. 

Legal Standard

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 subd. (d.).)

Discussion

As a preliminary matter, Plaintiff moves the Court to vacate its October 21, 2021 Order.  Although Plaintiff’s motions were heard on that date, no ruling was issued because the Court took the motions under submission.  The Court did not issue a ruling until November 19, 2021. 

Plaintiff contends she recently discovered that the actual amount of the mortgage payment is only $411.81 per month, and Defendant falsely represented that the monthly mortgage payment was $1,700.00 per month. (Alvarez Decl., ¶ 2.) However, Plaintiff knew, or should have known, that the mortgage was only $411.81 per month because Defendant stated the correct amount in opposition to Plaintiff’s original motion to stay the unlawful detainer action. (Silverstein Decl., ¶ 3, filed on October 18, 2021, in support of Defendant’s Opposition to Plaintiff’s Motion to Stay.)  The Court determines that Defendant did not misrepresent the amount of the mortgage payment.  Rather, it appears the Court erred by ordering Plaintiff to pay $850.00 per month.  The correct amount is $205.91 per month, or one-half of $411.81.  Thus, the amount listed in the Court’s November 19, 2021 Order should be corrected pursuant to CCP § 473 subd. (d.).

Accordingly, Plaintiff’s motion to vacate the Court’s October 21, 2021 Order is DENIED.  On its own motion, the Court corrects its November 19, 2021 Order nunc pro tunc by amending the amount Plaintiff is ordered to deposit into an escrow account each month.  The order shall read: “Plaintiff is ORDERED to pay $205.91 into an escrow account on the 1st of every month until the completion of the UD action.”  Furthermore, Plaintiff is entitled to credit for each overpayment made to date. 

Because the error is attributed to the Court, no sanctions are ordered.