Judge: Malcolm Mackey, Case: 19STCV33506, Date: 2023-01-20 Tentative Ruling


Case Number: 19STCV33506    Hearing Date: January 20, 2023    Dept: 55

SMITH v. GUILLOSSON                                                   19STCV33506

Hearing Date:  1/20/23,  Dept. 55

#7:   MOTION FOR AN ORDER FROM THE COURT TO AMEND NUNC PRO TUNC THE JUDGMENT AS TO THE COSTS OF SUIT AMOUNT.

 

Notice:  Okay

Opposition

 

MP:  Defendants

RP:  Plaintiff

 

Summary

 

On 10/8/19, Plaintiff GREGORY EDWARD SMITH filed a First Amended Complaint alleging that Plaintiff and self-represented Defendants are adjacent property owners in the Hollywood Hills, and Defendants continue to interfere with Plaintiff’s recorded easement for the sole use of a brick patio situated on Defendants' property, and built several structures on Plaintiff’s Property.

The causes of action are:

1. TRESPASS

2. PRIVATE NUISANCE

3. NEGLIGENCE

4. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

5. QUIET TITLE (EASEMENT)

6. PUBLIC NUISANCE

7. TRESPASS

8. PRIVATE NUISANCE

9. TRESPASS

10. PRIVATE NUSINANCE.

 

On 2/19/19, defendants filed a First Amended Cross-Complaint against Plaintiff, alleging that cross-defendants interfere with cross-complainants’ right to use and enjoy their property, including maintenance of an easement for enjoyment created in 1992.

Cross-complainants’ causes of action are:

(1) QUIET TITLE TO RECORDED EASEMENT;

(2) QUIET TITLE TO PRESCRIPTIVE EASEMENT;

(3) PRIVATE NUISANCE;

(4) MALICIOUS PROSECUTION;

(5) ABUSE OF PROCESS;

(6) EQUITABLE INDEMNITY AND CONTRIBUTION;

(7) THIRD PARTY TORT OF ANOTHER

(8) DECLARATORY RELIEF AGAINST ALL CROSS-DEFENDANTS.

 

On 2/18/20, cross-complainants filed requests for dismissal of the Fourth, Fifth, Sixth and Seventh Causes of Action, of the First Amended Cross-Complaint.

On 3/16/21, cross-complainants filed the later-granted motion for leave to file a Second Amended Cross-Complaint, arguing that the Second Amended Complaint, filed 1/13/21, and recent discovery, revealed new facts and new claims, and a need for clarification, including that SMITH was hostile, and seeking to obtain control over property of Cross-Complainants’ Walkway Easement.

 

 

 

MP Positions

 

Moving parties request an order correcting the amount of costs awarded, on grounds including the following:  

 

·         The costs judgment contains a clerical error, due to a miscalculation by the Court.

·         The Court should have awarded Plaintiff the sum of $16,319.01 for costs of suit based on simple mathematics.   

·         As a matter of law, Plaintiff is not entitled to $20.788.77 entered in error in the record.

·         The Court had actually intended to tax the expert witness fees in the full sum of $32,465.40, from the total requested costs of $48,784.41 sought by Plaintiff in his costs memorandum.

·         If the Court had correctly subtracted $32,465.40 from the total costs memorandum of $48,784.41, it would result in the correct amount of $16,319.01 of total costs allowed.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         The Court intentionally entered a costs award in Smiths favor in the amount of $20,788.77, in accordance with the specific calculations in Smith’s Opposition to the Guillossons’ Motion to Tax Costs.

·         Smith’s counsel made the same arguments orally at the March 23, 2022 hearing on the matter, and the Court stated on the record that Smith was entitled to recover $20,788.77 in costs.

·         The Guillossons failed to timely file a motion to vacate the Judgment, a motion for reconsideration, a motion for new trial, or appeal the Judgment. The Court therefore lacks jurisdiction to modify or amend the Judgment absent evidence of clerical error.

 

 

 

Tentative Ruling

 

The motion is denied.

The Court finds that its order accurately reflects its intended ruling adopting the opposition’s specific calculations of the total awardable costs.

 “[I]t is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did. An order made nunc pro tunc should correct clerical error by placing on the record what was actually decided by the court but was incorrectly recorded. It may not be used as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order to enter a new one.”  Hamilton v. Laine (1997) 57 Cal. App. 4th 885, 890-92 (“There is no written or oral evidence whatsoever that the trial court, in entering the original order … intended to authorize a trust …. Instead, the record contains several statements to the contrary made by the trial court at the time the nunc pro tunc order was made.”).  “‘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. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?’"  Estate of Careaga (1964) 61 Cal. 2d 471, 474.  Judges may not amend a judgment as clerical error in a way that substantially modifies it or materially alters parties’ rights.  Manson, Iver & York v. Black (2009) 176 Cal.App. 4th 36, 43. 

It is too late to change the ruling on other bases of law. 

Issues of judicial error do not support motions for relief under Code of Civil Procedure Section 473, or reconsideration, but instead the prescribed remedy is to file a notice of appeal. Lavrischeff v. Blumer (1978) 77 Cal. App. 3d 406, 411.  Adverse rulings are not surprise justifying relief under Code of Civil Procedure Section 473.  Nicholson v. Nicholson (1948) 85 Cal.App.2d 506, 510.  Code of Civil Procedure Section 473 is not grounds for modifying, amending or revoking an order, and the requirements of Section 1008 must be satisfied.    Gilberd v.  AC Transit (1995) 32 Cal.App.4th 1494, 1500-01; Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 844. 

Motions for reconsideration must be made within 10 days after service of written notice of entry of the order, extended under Code of Civil Procedure Section 1013(c) where service was by mail, fax or overnight delivery.  Forrest v. Dept. Of Corps.  (2007) 150 Cal.App.4th 183, 203.  After entry of a final judgment, courts lack jurisdiction to rule upon a motion for reconsideration. E.g., Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 859;  Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal. App. 4th 187, 192.

Finally, any referenced statements made by the Court during oral argument do not constitute the ruling.  A judge's order made orally, but not filed in writing or entered in the minutes, is ineffective.  Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 77-78 (“‘An oral . . . opinion by a trial judge, discussing and purporting to decide the issues, . . . is merely an informal statement….’”);  In re Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1170;  Ketscher v. Sup.  Ct.  (1970) 9 Cal.App.3d 601, 604;  CCP §1003.  “[A] judge's comments in oral argument may never be used to impeach the final order, however valuable to illustrate the court's theory they might be under some circumstances…. Courts are not bound by their tentative rulings.”  Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th  624, 633.  Because appellate courts review the correctness of formal orders, and not the trial courts’ reasons, they will not consider the court's oral comments made from the bench for the purpose of impeaching or changing the order.  Whyte v. Schlage Lock Co. (2002) 101 Cal. App. 4th 1443, 1451.