Judge Mark E. Windham, Case Number: 21STCP02520, Date: 2024-02-08 Tentative Ruling

Judge: Mark E. Windham, Case: 21STCP02520, Date: 2024-02-08 Tentative Ruling

Case Number: 21STCP02520 Hearing Date: February 8, 2024 Dept: 26

Wasserman Media Group, LLC v. Duca, et al.

MOTION TO CORRECT ORDER AND PLACE PETITION BACK ON CALENDAR

(CCP § 473(d))

TENTATIVE RULING:

Petitioner Wasserman Media Group, LLC’s Motion to Correct Order and Place Petition Back on Calendar is GRANTED. THE SEPTEMBER 13, 2022 MINUTE ORDER IS CORRECTED NUNC PRO TUNC TO REFLECT A CONTINUANCE OF THE HEARING DATE ON THE PETITION. THE COURT SETS THE HEARING DATE ON THE PETITION FOR MAY 9, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 4, 2024, PETITIONER IS TO FILE PROOF OF SERVICE OF THE PETITION AND NOTICE OF THE HEARING DATE IN ACCORDANCE WITH THE STATUTORY REQUIREMENTS.

ANALYSIS:

On July 6, 2021, an arbitrator issued an Arbitration Award in favor of Wasserman Media Group, LLC (“Petitioner”) and against Paul Lo Duca (“Respondent”). On August 3, 2021, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). The Court set the Petition for hearing on December 7, 2021 and ordered Petitioner to give notice. (Notice of Hearing, 08/03/21.) On November 2, 2021, the Court continued the hearing to March 17, 2022. (Notice of Continuance, 11/02/21.) On March 4, 2022, Petitioner filed an Application for Publication, based on multiple failed attempts to serve Respondent. (See Fieldsted Decl. ¶¶ 4-8.) On March 8, 2022, the court rejected Petitioner’s Application for Publication because Petitioner had not demonstrated diligence in its service attempts. (See Notice of Rejection, 3/8/22.)

The Petition came for hearing on March 17, 2022 and was continued again to September 13, 2022. Petitioner filed Proof of Personal Service on April 7, 2022. Following the lack of any responsive pleading from Respondent, the Court entered Respondent’s default on May 19, 2022. The Petition came for hearing on September 13, 2022. Only Petitioner appeared and the minute order reflects that the Petition was granted. (Minute Order, 09/13/22.) Petitioner was ordered to file and serve a proposed judgment within ten days of the order. (Ibid.)

No proposed judgment was filed and after more than a year, Petitioner filed the instant Motion to Correct Order and Place Petition Back on Calendar on November 28, 2023. No opposition to the Motion has been filed.

Discussion

The motion is brought pursuant to Code of Civil Procedure section 473, subdivision (d), under which courts have inherent powers to correct orders by a nunc pro tunc order where there has been clerical error by clerk or by the judge himself, or where some provision of, or omission from, order or judgment was due to inadvertence, or mistake of court. (Lane v. Superior Court of Siskiyou County (1950) 98 Cal App 2d 165, 219; Code Civ. Proc., § 473, subd. (d).)

The Motion is supported by the declaration of Petitioner’s counsel, who states that they learned the wrong “Paul Lo Duca” may have been served. (Motion, Fieldsted Decl., ¶¶4-5.) Upon appearing at the hearing on September 13, 2023, Petitioner’s counsel informed the Court of the service issue and requested a continuance of the hearing to allow for service on the correct respondent; the Court continued the hearing to December 1, 2023 and ordered Petitioner to give notice. (Id. at ¶6 and Exh. 1.) Notice of the continued hearing date was served on Respondent but never filed. (Ibid.)

In December 2022, Petitioner discovered that the minute order did not reflect the continuance and sought to reset the Petition for hearing in August 2023. (Id. at ¶¶7-9 and Exhs. 3-4.) Petitioner now brings the instant Motion to Correct Order and Place Petition Back on Calendar.

Petitioner’s evidence demonstrates that the order dated September 13, 2022 contains a clerical error by granting the Petition instead of continuing the hearing date. Accordingly, the order is corrected nunc pro tunc to reflect the continuance of the hearing date. The Court sets the hearing date on the Petition for May 9, 2024 at 8:30 am in Department 26 in the Spring Street Courthouse. By April 4, 2024, Petitioner is to file proof of service of the Petition and Notice of Hearing Date in accordance with the statutory requirements.

Conclusion

Moving party to give notice.