TENTATIVE RULING

Calendar:    15

Date:          7/29/2022 

Case No: EC 064392   

Case Name: Aguilar v. Rosen, et al.

                           MOTION TO CORRECT MINUTE ORDER

Moving Party:            Defendants Jonathan C. Rosen and JCR Legal Group, Inc.      

Responding Party: Plaintiff Arturo Aguilar       

RELIEF REQUESTED:

Correct minute order of November 17, 2015 to delete award of sanctions of $3,600.00 

SUMMARY OF FACTS:

Plaintiff Arturo Aguilar brought this action against his former attorney defendant Jonathan C. Rosen, and Rosen's law firms, defendants JCR Law Group, Inc., and Law Offices of Jonathan C. Rosen, alleging that defendants failed to defend plaintiff in an underlying criminal matter with diligence and competence. Specifically, plaintiff alleges that defendants failed to follow up on references to school and inoculation records to establish that at the time of the alleged incident, plaintiff was only eleven years old, not between fifteen and eighteen, and so entitled to have the District Attorney's office prove to the court plaintiff's comprehension and legal understanding of his actions, which under California law does not exist until the age of fourteen. Plaintiff also alleges that defendants failed to follow up to clarify false statements upon which the District Attorney was relying. Plaintiff alleges that defendants failed to visit with plaintiff, communicate progress, or follow up with investigation, but persuaded plaintiff to accept a plea to a false charge, resulting in plaintiff remaining in prison for another year. It is also alleged that defendants then abandoned the matter, but did not legally withdraw as counsel, and have failed to communicate with plaintiff. 

The file shows that on October 30, 2015, plaintiff filed a notice of ex parte application and motion for an order compelling defendant Jonathan C. Rosen to be produced for deposition within fifteen days or, alternatively, for an order shortening time for a hearing on plaintiff’s motion to compel the deposition of Rosen.  The matter was called for hearing.  There was no appearance for defendant.  The court, Judge Doyle presiding, granted the ex parte application and set the matter for hearing on November 17, 2015, with the moving papers deemed filed, opposition papers ordered filed and served on or before November 10, 2015, and counsel for plaintiff to give notice.  

Defendants filed written opposition on November 10, 2015. 

On November 17, 2015, the matter was called for hearing.  There was no appearance for defendants. 

The court issued its tentative ruling, which was to grant the motion to compel attendance and testimony at deposition, and to deny monetary sanctions.  With respect to monetary sanctions, the minute order indicates that the tentative stated:

“Monetary sanctions sought by moving party are DENIED. The notice of motion fails to identify every person, party, and attorney against whom the sanction is sought in the notice of motion, as required under Code of Civil Procedure § 2023.040.

Moreover, the Court finds that the opposition herein is not without substantial justification under the circumstances, even though it is insufficient to defeat the motion. As an aside, the pendency of a demurrer or the fact that a case is ‘not yet at issue’ is seldom as here a compelling reason to suspend discovery activities.”

The minute order states:

“The tentative ruling becomes the order of the Court with the following amendmend [sic]:  Monetary sanctions in the amount of $3,600.00 are ordered to be paid by defendant Jonathan C. Rosen to counsel for plaintiff, Reicheneder Law Group located at 22823 Malibu Rd, Ste 373 Malibu, CA 90265 within 30 days of this date.”  

[Minute order 11/17/15, p. 5 of 6]. 

The file shows that on February 1, 2016, the court heard a motion to file documents under seal in connection with a demurrer to the complaint, based on defendants’ argument that plaintiff’s case was barred for failure of plaintiff to plead factual innocence, at which time it was discovered that the documents defendants intended to rely upon had been sealed by the juvenile court.  After hearing several motions with respect to the issue of the unsealing of those records and permitting continuances to seek relief in the juvenile court, as well as permitting plaintiff leave to amend the pleading, the court on February 24, 2017 sustained a demurrer to the Second Amended Complaint without leave to amend, and ordered the Second Amended Complaint dismissed. 

On December 15, 2017, the court heard a motion by defendants for sanctions pursuant to CCP section 128.5 brought against plaintiff and the attorneys for plaintiff in this matter, Dale Reicheneder and Reicheneder Law Group.  Defendants argued that plaintiff’s complaint was frivolous, and plaintiff and his counsel engaged in bad faith conduct throughout the litigation.  Defendants argued that it was clear throughout the litigation that plaintiff would be unable to establish claims against his former attorney arising out of representation in a criminal matter, because plaintiff could not establish his own actual innocence or that his conviction had been set aside in a manner demonstrating exoneration of the charges, as required under applicable law. 

The court denied the motion, finding that defendants failed to meet the standard for determining the matter to be frivolous, as while the court had ultimately determined that the factual innocence and post-conviction exoneration elements applied to sealed juvenile proceedings, there was a colorable argument asserted by plaintiff that the elements did not apply to sealed juvenile proceedings, and that there were also attempts being considered with respect to obtaining post-conviction relief throughout the proceeding. 

Defendants appealed the court’s order denying the motion for sanctions.  

On March 13, 2020, the Second District filed its unpublished opinion in the matter, affirming the trial court order denying sanctions, and finding no abuse of discretion.  The opinion states in the Disposition, “Reicheneder is awarded his costs on appeal.”  

On April 3, 2020, the Second District ordered the March 13, 2020 opinion modified, with no change in the judgment, and denied a petition for rehearing. 

On April 13, 2020, respondents Reicheneder and Reicheneder Law Group filed a Memorandum of Costs, seeking $1,889.20 in costs. 

On April 13, 2020, defendants/appellants filed a motion to strike or tax costs, which did not designate a hearing date.  

Evidently, the defendants/appellants filed a petition for writ of review to the California Supreme Court.   On July 24, 2020, respondents Reicheneder and Reicheneder Law Group filed a Notice indicating that on July 8, 2020, the California Supreme Court had denied petitioner Jonathan C. Rosen, Esq.’s Petition for Review. 

 On July 27, 2020, respondents Reicheneder and Reicheneder Law Group filed an Amended Memorandum of Costs, seeking $1,670.00 in costs.

On August 11, 2020, remittitur was filed in this court.  The Remittitur states, “Reichender is awarded his costs on appeal.” 

On December 4, 2020, the court heard a motion to strike or tax costs filed on behalf of the Rosen defendants, which was granted in part.  The court awarded costs in the sum of $1,118.05.  The minute order notes that the order granting the motion was signed and filed that date, and counsel for moving party was ordered to give notice.   

The court’s order was filed on December 4, 2020, and awards $1,118.05 in costs to respondents Dale Reicheneder and the Reicheneder Law Group to be paid, “no later than 30 days after entry” of the judgment and provides that respondent is further entitled to interest on unpaid amounts and reasonable expenses to collect the award.  The order states that “Judgment is entered in favor of Dale Reicheneder, Esq., and against Defendant Jonathan C. Rosen, Esq., in the amount of …$1,118.05.”  

On May 28, 2021, the court heard a motion brought by Dale Reicheneder and Reicheneder Law Group for an OSC re Contempt against defendant for failure to pay the judgment, and for a fine, which was denied. 

ANALYSIS:

Defendants Jonathan C. Rosen and JCR Legal Group, Inc. seek an order correcting the last paragraph of the minute order of November 17, 2015, nunc pro tunc, to delete the award of sanctions of $3,600.00, arguing that the minute order is incorrect, in that no sanctions were to be awarded according to the tentative ruling, and the tentative ruling was not changed by the court.  

Defendants argue that on February 1, 2016, Judge Doyle specifically stated that no sanctions had been awarded. 

It appears from the declaration of Jonathan Rosen submitted with the moving papers that what has occurred is that in June of 2022 Rosen’s present attorney reported Dale Reicheneder to the State Bar for possible perjury in connection with a document requesting SLAPP fees, which is still under investigation.  [Rosen Decl., para. 4].  On June 9, 2022, defendant Rosen received a letter from the State Bar alleging that he had not paid the $3,600.00 in sanctions.  [Rosen Decl., para. 5].  The letter itself has not been submitted to the court.  

Rosen evidently seeks an order from the court correcting the minute order of November 17, 2015 in connection with the sanctions order to clear up this matter with the State Bar. 

Defendant seeks relief under CCP section 473(d), which provides:

“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.” 

It has long been held that a trial court has the power, after final judgment, and regardless of lapse of time, to correct clerical errors in its records, whether made by the clerk, counsel, or the court itself, so that the records will conform to and speak the truth.  Witkin, 7 Cal. Proc. 6th Ed. Judgment section 67 (2022), citing, among other cases, Estate of Goldberg (1938) 10 Cal.2d 709, 713. 

For purposes of CCP section 473(d), the term “clerical” error is defined as follows:

“The controlling principle is that although clerical error may freely be corrected postjudgment, judicial error may be corrected only by normal procedures for attacking a judgment (motion for new trial, appeal, independent action in equity, etc.)....

The test which distinguishes clerical error from possible judicial error is simply whether the challenged portion of the judgment was entered inadvertently (which is clerical error) versus advertently (which might be judicial error but is not clerical error). (7 Witkin, Cal. Procedure, supra, Judgment, @ 68, p. 595.) Unless the challenged portion of the judgment was entered inadvertently, it cannot be changed post judgment under the guise of correction of clerical error.”

Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App. 4th 110, 117.  

The Second District in Tokio Marine relied on cases in which the governing test was whether the judgment was entered as intended by the trial court.  The Second District noted:

“For example, in Lankton v. Superior Court (1936) 5 Cal.2d 694, 696 [55 P.2d 1170], the Supreme Court explained: “The judgment in this case was the identical judgment which the trial court intended to render. There was no mistake in its entry, and it expressed in apt and definite terms the conclusion at which the trial court arrived during the trial of the action. If the court misconstrued the evidence before it or misapplied the law applicable to the facts disclosed by the evidence, or was even misled by counsel, such an error was in no sense a clerical error ....” (See also Bowden v. Green (1982) 128 Cal.App.3d 65, 70 [180 Cal.Rptr. 90] [quoting Lankton].)”

Tokio Marine, at 117-118.  

Here, defendant argues that there must have been an error by the clerk in the November 17, 2015 minute order, as the tentative ruling in this matter made “crystal clear” that Judge Doyle did not intend to award sanctions.  

A review of the minute order itself shows that the tentative ruling was in fact set forth as a “tentative ruling,” and stated:

“Monetary sanctions sought by moving party are DENIED. The notice of motion fails to identify every person, party, and attorney against whom the sanction is sought in the notice of motion, as required under Code of Civil Procedure § 2023.040.

Moreover, the Court finds that the opposition herein is not without substantial justification under the circumstances, even though it is insufficient to defeat the motion. As an aside, the pendency of a demurrer or the fact that a case is ‘not yet at issue’ is seldom as here a compelling reason to suspend discovery activities.”

[Minute Order 11/17/15, pp. 1 and 2 of 6].  

The hearing was then conducted, with no appearances by or on behalf of defendants, and the final minute order, as sometimes occurs, expressly modified the tentative ruling, which was, as noted and expressly stated, a “tentative” ruling. 

The minute order states:

“The tentative ruling becomes the order of the Court with the following amendmend [sic]:  Monetary sanctions in the amount of $3,600.00 are ordered to be paid by defendant Jonathan C. Rosen to counsel for plaintiff, Reicheneder Law Group located at 22823 Malibu Rd, Ste 373 Malibu, CA 90265 within 30 days of this date.”  

[Minute Order 11/17/15, p. 5 of 6]. 

It does not appear from the face of this order that there was any clerical error, as the order expressly recognizes the order is departing from the tentative ruling on this issue and is quite detailed with respect to the sanctions being ordered to be paid.   

As noted above, there was no appearance for defendant at the hearing, so defendant would have no personal knowledge of what was said or what the intent of the court was in this regard.  The motion concedes that there was no court reporter at the hearing.  [Rosen Decl., para. 2].  The motion simply concludes that since the tentative ruling and the final paragraph of the actual minute order conflict, there was an error on the part of the clerk. 

A review of the ex parte application suggests that what most likely occurred here is that counsel for plaintiff appeared at the motion, with no appearance on behalf of defendant, and persuaded the court that the tentative ruling was in error because, while the notice of motion did not identify the party against whom monetary sanctions were being sought, the caption of the ex parte application set forth those details.  [See Ex Parte Application, filed 10/30/15, Caption].  

Given the tentative nature of the tentative ruling, and the clarity of the express order amending that tentative ruling, there does not appear to have been any clerical error here—the order reflected what was ordered and intended by the court.   

Plaintiff in opposition argues that the motion is not a motion to correct an order, but a motion to change and order that should not be changed.  Plaintiff argues that although the tentative indicated monetary sanctions were not going to be awarded, following the hearing Judge Doyle ruled that plaintiff was entitled to monetary sanctions.  Although plaintiff evidently also did not attend the hearing or has any personal knowledge of what transpired there, plaintiff does call into question defendant’s representations to the court that plaintiff has never previously pursued the recovery of such sanctions.  Specifically, plaintiff has submitted a Notice of Ruling concerning the November 17, 2015 hearing, which was served the same date, and the file shows was filed with the court by plaintiff’s attorney on November 18, 2015, which states that at the hearing, “the court made the following rulings:”

“1.  Plaintiff’s Motion to Compel the Deposition of Defendant JONATHAN C. ROSEN is GRANTED:

2.  Plaintiff’s Request for Monetary Sanctions Against Defendant JONATHAN C. ROSEN and Defendant’s Counsel, Edward Lear, in the amount of $3,600 is GRANTED, payable within thirty (30) days.

3.  Plaintiff’s attorney to prepare and serve this Notice.”

[Notice of Ruling 11/18/15, emphasis in original].

Plaintiff also submits a document, which also appears in the court’s file, entitled “Plaintiff’s Notice that Defendant Jonathan C. Rosen, Failed to Pay Monetary Sanctions to Plaintiff in the Amount of $3,600, Violating the Court’s Order of November 17, 2015,” which states that, “on November 17, 2015, the Court ordered Defendant, Jonathan C. Rosen, to pay Plaintiff monetary sanctions in the amount of $3,600, payable within thirty (30) days,” that the sanctions were due by December 22, 2015, but that as of December 31, 2015, defendant had “failed to pay the monetary sanctions, thereby violating the Court’s Order of November 17, 2015.”  [Notice, filed 12/31/15]. It accordingly appears that plaintiff has been consistently taking the position that the monetary sanctions were ordered, and that plaintiff intended to pursue their collection.  

Defendant also argues that Judge Doyle, at a later hearing, expressly stated that he had not previously awarded sanctions.  Defendant submits a transcript from a completely separate hearing, conducted on February 1, 2016, with respect to a motion to seal records and a demurrer.   There was no discovery motion then pending before the court. 

The transcript shows that at the hearing, there was a report to Judge Doyle regarding the status of discovery:

“MR. REICHENEDER: AND THEN WITH REGARDS TO DEPOSITIONS, I THINK COUNSEL AND I ARE COMMUNICATING WELL IN TRYING TO GET DEPOSITIONS SCHEDULED. I REALLY THINK AT THIS POINT THE ISSUE RELATES BACK TO NOVEMBER 17 WHEN YOUR HONOR HEARD OUR MOTION TO COMPEL DEFENDANT JONATHAN ROSEN'S DEPOSITION AND THE COURT RULED IN OUR FAVOR. THE MOTION IN LIMINE WAS GRANTED ALONG WITH $3 600 IN SANCTIONS . SO THAT'S -- I THINK WHEN IT BOILS DOWN TO IT AND THE DUST SETTLES, THE ISSUE OF SANCTIONS IS WHAT I BELIEVE TO BE STARING AT US IN THE FACE . 

THE COURT: I CAN'T REMEMBER WHERE I LEFT OFF ON SANCTIONS IN THIS CASE . SOMETIMES---

MR. LEAR: YOU EXTINGUISHED THE ORDER, YOUR HONOR, PRIOR TO GETTING--- 

THE COURT: I SELDOM AWARD SANCTIONS. 

MR. LEAR: I WOULD LIKE TO BE HEARD ON THE DEMURRER. 

THE COURT : SURE.”

[Ex. B., Transcript, p. 4: 13-26].

This exchange confirms the understanding of counsel for plaintiff that the court intended to and did award sanctions at the previous hearing.  The exchange does not appear to suggest that Judge Doyle was reversing his decision with respect to sanctions.  As noted above, Mr. Lear had not attended the November 17, 2015 hearing, so had no knowledge concerning any extinguishing of an order, other than, assuming he read the minute order which was served, the amendment of the tentative ruling as reflected in the minute order to award the sanctions.  Judge Doyle expressly cautioned that he did not recall where things had been left with respect to sanctions and would likely not have set aside a previous direct order without further information or a refreshed recollection.     

Defendant relies on the portion of the transcript in which the following exchange took place:

“THE COURT:…MR. LEAR, IS THERE ANYTHING ELSE THAT IS GOING ON, AT THE MOST, ANY KIND OF DI SCOVERY ISSUE? 

MR. LEAR: WE HAVE ESSENTIALLY MOTHBALLED EVERYTHING REGARDING DISCOVERY UNTIL WE HAD AN ADJUDICATION ON THE DEMURRER . SO NOW I THINK IT'S APPROPRIATE TO HAVE THE DEPOSITIONS AND IT'S APPROPRIATE TO HAVE WRITTEN DISCOVERY AND THEN FOR DEFENDANT TO BRING WHATEVER MOTION – 

THE COURT: RIGHT. 

MR. LEAR: -- IT THINKS IS APPROPRIATE IN THE CONTEXT. 

MR . REICHENEDER: YOUR HONOR, IF I MAY, JUST TO REVISIT THE SANCTION ISSUE ON THE MOTION TO COMPEL FOR THE DEPOSITION OF JONATHAN ROSEN, THE REASONING BEHIND THE COURT'S DECISION TO AWARD $3,600 IN SANCTIONS ON NOVEMBER 17 WAS IN PART DUE TO THE FACT THERE WAS NO OPPOSITION OR NO FAILURE OF COUNSEL TO APPEAR ON THE EX-PARTE HEARING TO SHORTEN TIME FOR THAT MOTION TO BE HEARD, AND THEN ON NOVEMBER 17 WHEN THE MOTION TO COMPEL WAS ACTUALLY HEARD, AGAIN COUNSEL FOR DEFENDANTS DID NOT APPEAR AND THAT WAS A COMPONENT IN AWARDING THOSE SANCTIONS, YOUR HONOR. AND SINCE THEN, THERE'S BEEN NOTHING TO ALLEVIATE THE FACT THAT MY CLIENT HAD TO INCUR, YOU KNOW, LARGE AMOUNT OF MONIES TO GET TO US TO THAT POSITION AT THAT TIME. NOT SAYING SINCE THEN THINGS DID MORPH INTO SOMETHING A LITTLE BIT DIFFERENT, BUT AT THAT TIME, WE TAKE A PICTURE OF THE CASE AT THAT TIME. IT WAS A BONA FIDE MOTION. WE WERE AWARDED REASONABLE ATTORNEY'S FEES TO HAVING TO MAKE TWO APPEARANCES ALONG WITH THE MEET AND CONFERS AND EVERYTHING THAT WENT WITH IT, DOING BATTLE AGAINST DEFENDANT COUNSEL'S THEORY THAT NO DEPOSITIONS CAN BE TAKEN UNTIL AFTER THE MATTER IS AT ISSUE . THE COURT BELIEVED AND I THINK CORRECTLY SO THAT WAS AN ILL-ADVISED POSITION TO TAKE AND MY CLIENT INCURRED SUBSTANTIAL FEES AND COSTS TO GET US TO THAT POINT AT THAT TIME, AND THAT'S HOW WE SHOULD LOOK AT THESE SANCTIONS, YOUR HONOR. 

THE COURT: LET ME JUST INTERRUPT. I HEAR YOU. I RESPECTFULLY DISAGREE. I'M NOT GOING TO AWARD SANCTIONS AT THIS TIME UNDER THE CIRCUMSTANCES. WE HAVE EXERCISED THE COURT'S DISCRETION IN THE INTEREST OF JUSTICE.”

[Ex. B, Transcript, p. 13:17-14:25].

This does not appear to show that at the previous hearing, when the issue was squarely before the court, the Judge did not intend that the order which was entered be ordered.  This exchange, at best, would show a later change of mind by the Judge, not an error by the clerk with respect to the official order in this case.  The November 17, 2015 order was not improperly entered based on clerical mistake or error.  The order reflected the ruling of the court at the time, as also reflected in the Notice of Ruling and Notice of December 31, 2015 prepared by counsel for plaintiff, who personally attended the hearing, and which ruling was the same as that entered by the clerk.  Under the circumstances, the only reasonable conclusion is that the order reflected the intentions of the Judge with respect to the matter before the court at the time. There was never any official step taken to have that order modified to reflect what might possibly have been the court’s later change of mind.  Defendant did not file any written objection to the Notice of Ruling or the Notice that sanctions had not been timely paid.  It appears that any change of mind at a later hearing would be a judicial act, not an inadvertent clerical act subject to being corrected nunc pro tunc as requested.  The motion to correct that order accordingly is denied. 

RULING:

Motion to Correct Minute Order of November 17, 2015, Nunc Pro Tunc is DENIED.   The Minute Order of November 17, 2015, amending the tentative ruling to award sanctions, does not include any clerical mistake or error. 

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.