Judge: Michelle Williams Court, Case: 19STCV12599, Date: 2023-04-20 Tentative Ruling

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Case Number: 19STCV12599    Hearing Date: April 20, 2023    Dept: 1

19STCV12599           MR. BW vs DELL'AMORE LIMOUSINE INC

Plaintiff’s Motion for an Order Vacating the Court’s Order Issued on January 25, 2023 by Judge Michelle Williams Court or in the Alternative for an Order Recalling and Staying the Enforcement of that Court Order Pending the Appeal Outcome of The December 19th 2022 Order Which was Already on Appeal and Filed on December 23rd, 2022 Prior to the 01/25/2023 Order that was Made Without Authority or Jurisdiction to do so Pursuant to C.C.P. § 906 & § 916(A).

TENTATIVE RULING:  The motion is GRANTED and the January 25, 2023 prefiling order is vacated nunc pro tunc.

Background

On April 11, 2019, Plaintiff Mr. BW, “individually, on behalf of himself, the general public and on behalf of all other persons and class similarly situated” filed a complaint, in propria persona, filed this action against Dell’Amore Limousine, Inc., the Los Angeles County Sheriff’s Department, several other limousine companies, bail bonds companies, and individuals associated with the entity defendants and the Sheriff’s Department.

On April 11, 2022, Plaintiff, in propria persona, filed a First Amended Complaint with a caption page identifying 62 causes of action, requesting $100,000,000.00 in general damages, $300,000,000.00 in special damages, and $500,000,000.00 million in punitive damages, among other damages and relief. The Court understands this action to arise out of Plaintiff’s arrest on April 11, 2017.

On June 24, 2022, Defendant Los Angeles County Sheriff’s Department filed a Motion to

Declare Plaintiff to be a Vexatious Litigant Pursuant to Code of Civil Procedure Section

391.1 seeking to require Plaintiff to furnish security.

On September 21, 2022, the Court granted Defendant’s motion and ordered Plaintiff to furnish security in the amount of $100,000.00. The Court also set an Order to Show Cause Re: Dismissal for Failure to Furnish Security and Order to Show Cause re: Entry of Prefiling Order for November 8, 2022. On November 29, 2022, the Court held a hearing on the Orders to Show Cause and took the matter under submission.

On December 19, 2022, the Court issued its ruling on submitted matter, dismissing the case without prejudice as to the Los Angeles County Sheriff’s Department, County of Los Angeles, Los Angeles County Sheriff Department, John and/or Jane Doe Watch Commanders, and Los Angeles County Sheriff's Department, John and/or Jane Doe Approving Booking Supervisors, and taking the Order to Show Cause Re: Entry of Pre-Filing Order off calendar as moot.

On January 3, 2023, the action was reassigned from Judge Michelle Williams Court to Judge Colin P. Leis. On January 23, 2023, Judge Leis accepted a Code of Civil Procedure section 170.6 challenge and the case was reassigned to Judge Richard L. Fruin.

On January 25, 2023, Judge Michelle Williams Court entered a Prefiling Order – Vexatious Litigant against Plaintiff.

Plaintiff filed a Notice of Appeal of the January 25, 2023 order on January 27, 2023.

Motion

On March 29, 2023, Plaintiff filed a “Motion for an Order Vacating the Court’s Order Issued on January 25, 2023 by Judge Michelle Williams-Court or in the Alternative for an Order Recalling and Staying the Enforcement of that Court Order Pending the Appeal Outcome of The December 19th 2022 Order Which was Already on Appeal and Filed on December 23rd, 2022 Prior to the 01/25/2023 Order that was Made Without Authority or Jurisdiction to do so Pursuant to C.C.P. § 906 & § 916(A).” On March 30, 2023, Plaintiff filed a “Notice of Errata Pursuant to C.C.P. § 473(a)(1) for Amended Supplemental in Response to Notice of Motion . . .”

Opposition

On April 4, 2023, Defendants Los Angeles County Sheriff’s Department and County of Los Angeles filed an opposition to the motion arguing the motion lacked sufficient notice, the July 1, 2022 stay did not preclude the January 25, 2023 order, Plaintiff’s appeals did not stay the case, and the January 25, 2023 order is presumed valid.

Reply

On April 13, 2023, Plaintiff filed a reply, objection, and request to strike the opposition. Plaintiff’s reply is largely identical to the initial motion.

Judicial Notice

Defendant requests the Court take judicial notice of case summaries published by the Court of Appeal. The requests are GRANTED. (Evid. Code §§ 452(d); 452(h).)

Discussion

In Plaintiff’s memorandum supporting the motion, Plaintiff cites case authority regarding orders made after disqualification, (Memo. at 6:1-7:9), which do not apply. Judge Michelle Williams Court was never disqualified from the action under any of the applicable statutes. Plaintiff’s motion also challenges the propriety of the Court’s September 21, 2022 order requiring him to furnish security as a vexatious litigant, which is a procedurally improper request for reconsideration. (Code Civ. Proc. § 1008.)

In reply, Plaintiff objects to the opposition, but fails to provide any relevant authority in support of the objection that would deprive Defendants of standing to oppose the instant motion. Plaintiff cites Golin v. Allenby (2010) 190 Cal.App.4th 616, 635, which discusses the appealability of a judgment of dismissal. (Reply at 3:9-14.) Accordingly, Plaintiff’s request to strike the opposition is DENIED.

Plaintiff also cites authority regarding a trial court’s jurisdiction during the pendency of an appeal, noting he has filed five appeals. (Memo. at 7:10-8:13:20.) In opposition, Defendants contend several of Plaintiffs’ appeals are from non-appealable orders. On March 16, 2023, the court received the remittitur from the Court of Appeal dismissing Court of Appeal Case B324352 because it sought to appeal a non-appealable order. If the “order is nonappealable, the appeal was never perfected and the trial court retained jurisdiction over the issue.” (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666. See also Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146. (Since [Plaintiff’s] appeal was invalid, it did not affect the trial court’s jurisdiction to proceed.”); Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124 (“The trial court is not divested of jurisdiction by an appeal from a nonappealable order.”); Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1431 n.6 (same).)

Plaintiff’s motion seeks to vacate the January 25, 2023 prefiling order, which is currently on appeal in Court of Appeal Case B327059. As noted by Defendant, the entry of a prefiling order is an appealable order. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 619 (“an order requiring a person to obtain permission from the presiding judge or justice before filing ‘new litigation’ in propria persona (§ 391.7) is injunctive in nature and therefore appealable under section 904.1, subdivision (a)(6).”).) Generally, such an appeal renders this Court without jurisdiction to vacate the associated order. (Copley v. Copley (1981) 126 Cal.App.3d 248, 298 (“During the pendency of an appeal, the trial court is without power to hear a motion to vacate judgment from which an appeal has been taken.”).)

However, while an appeal is pending, the Court retains authority to enter a nunc pro tunc order to accurately reflect the proceedings before it. (See e.g. Lang v. Superior Court In and For Orange County (1961) 198 Cal.App.2d 16, 18 (“It is the established rule that the right of a court to correct a clerical error in its judgment by a nunc pro tunc amendment thereto is not suspended by an appeal therefrom.”).) Such an order is proper even if it may render a pending appeal moot. (See e.g. Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 434 (“The issue presented by appellant's further contention, . . . has become moot. Since this appeal was taken, the trial court made a nunc pro tunc order correcting the final decree . . . which . . . conforms with the findings of the court.”).)

“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.” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891. See also Carter v. J.W. Silver Trucking Co. (1935) 4 Cal.2d 198, 205 (“Ruling[s] and even judgments inadvertently made are not the result of judgment but of oversight, neglect or accident and are subject to correction by the court making them.”) quoting King v. Emerson (1930) 110 Cal. App. 414).) “A clerical error is not necessarily one made by the clerk; it may include an error made by the judge or the court. The entry of a judgment generally is deemed a clerical act. The distinction between a clerical error and a judicial error, however, does not depend so much on the person making it as on whether it was the deliberate result of judicial reasoning and determination.” (Young v. Gardner-Denver Co. (1966) 244 Cal.App.2d 915, 919 (citations omitted). See also In re Goldberg's Estate (1938) 10 Cal.2d 709, 715 (“The signature of the judge to the judgment does not establish that the error in the judgment is not a clerical error.”).)

On January 25, 2023, the Court signed and entered a prefiling order-vexatious litigant against Plaintiff on mandatory Judicial Council form VL-100, which indicated “[t]his prefiling order is entered pursuant to a motion made by party: LACOSheriff’sDept.” This form order was issued because of a clerical error and was not “the deliberate result of judicial reasoning and determination.” (Young, supra, 244 Cal.App.2d at 919.)

On June 24, 2022, Defendant Los Angeles County Sheriff’s Department filed a Motion to Declare Plaintiff to be a Vexatious Litigant Pursuant to Code of Civil Procedure Section 391.1 seeking to require Plaintiff to furnish security. On September 21, 2022, the Court issued an order granting the motion. In the September 21, 2022 order, the Court noted that Defendant Los Angeles County Sherriff’s Department’s motion “did not seek the entry of a prefiling order against Plaintiff” and “[b]ecause Defendant did not seek this relief in its noticed motion, the Court shall, on its own motion, set an Order to Show Case re: Why Plaintiff Mr. BW a.k.a. Mr. Williams, a.k.a. Williams Briand, a.k.a. Briand Williams, a.k.a. Brian Williams should not be subject to a pre-filing order, which would prohibit the filing of any new civil litigation in the courts of this state, in propria persona, without first obtaining leave of the Presiding Judge or his or her designee in the court where the litigation is proposed.” The Court set the Order to Show Cause re: Entry of Prefiling Order for November 8, 2022, which was later continued to November 29, 2022.

On November 29, 2022, the Court held a hearing on the Order to Show Cause re: Entry of Prefiling Order and took the matter under submission. On December 19, 2022, the Court issued its Ruling on Submitted Matter, which provided in relevant part, that the Order to Show Cause re: Entry of Prefiling Order is “taken OFF CALENDAR as MOOT.”

“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?” (Hamilton, supra, 57 Cal.App.4th at 890.) As detailed herein, the prefiling order filed on January 25, 2023 on mandatory Judicial Council form VL-100 was an inaccurate memorialization of the Court’s findings and orders made on September 21, 2022 and December 19, 2022 that does not express the actual intention of the Court. “Where the judgment as signed does not express the actual judicial intention of the court, but is contrary thereto, the signing of such a purported judgment is a clerical error rather than a judicial one.” (Bowden v. Green (1982) 128 Cal.App.3d 65, 72 quoting Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 47.)

Accordingly, the January 25, 2023 prefiling order is hereby VACATED nunc pro tunc. A copy of this order shall be served upon the Judicial Council to remove Plaintiff’s name from the vexatious litigant list.

Conclusion

Plaintiff’s Motion for an Order Vacating the Court’s Order Issued on January 25, 2023 by Judge Michelle Williams-Court or in the Alternative for an Order Recalling and Staying the Enforcement of that Court Order Pending the Appeal Outcome of The December 19th 2022 Order Which was Already on Appeal and Filed on December 23rd, 2022 Prior to the 01/25/2023 Order that was Made Without Authority or Jurisdiction to do so Pursuant to C.C.P. § 906 & § 916(A) is GRANTED on the sole basis that the January 25, 2023 prefiling order does not accurately reflect the proceedings in this Court.

Accordingly, the January 25, 2023 prefiling order entered against Plaintiff is hereby VACATED nunc pro tunc. A copy of this order shall be served upon the Judicial Council to appropriately correct the Judicial Council’s vexatious litigant list.

Clerk shall give notice.