Judge Ralph C. Hofer, Case Number: EC066996, Date: 2024-05-03 Tentative Ruling

Judge: Ralph C. Hofer, Case: EC066996, Date: 2024-05-03 Tentative Ruling

Case Number: EC066996 Hearing Date: May 3, 2024 Dept: D

TENTATIVE RULING

Calendar: 9

Date: 5/3/2024

Case No: EC 066996 Trial Date: None Set

Case Name: American Express Centurion Bank v. Carlow

MOTION FOR ORDER EVIDENCING ASSIGNMENT

Moving Party: Plaintiff American Express Centurion Bank

Responding Party: Defendant Richard Carlow (No Opposition)

RELIEF REQUESTED:

Order evidencing assignment of judgment by operation of law in favor of plaintiff’s post-merger successor entity American Express National Bank

FACTUAL AND PROCEDURAL BACKGROUND:

This action was filed by plaintiff American Express Centurion Bank to collect sums allegedly owed to plaintiff by defendant Richard Carlow pursuant to financial transactions between the parties in connection with an American Express credit card account.

The file shows that on March 1, 2018, plaintiff filed a Notice of Settlement of the Entire Case. On April 12, 2018, the court signed and filed a written Stipulation for Entry of Judgment Pending Performance and for Court to Dismiss the Case Without Prejudice and Retain Jurisdiction Pursuant to Code of Civil Procedure Section 664.6 and Order, dismissing the matter without prejudice and retaining jurisdiction pursuant to CCP section 664.6 to enforce the terms of the settlement and enter judgment in the event of a default.

On March 8, 2021, the court signed and filed an Order for Entry of Judgment Pursuant to CCP section 664.6, indicating that having considered the declaration of Eric Jun and the attached exhibits, the dismissal in the action was set aside, and further ordering pursuant to CCP section 664.6 that judgment be entered in favor of American Express Centurion Bank against Richard Carlow in the amount of $28,974.85.

The file also shows that since the filing of this motion on March 1, 2023, defendant on March 6, 2023 filed a Substitution of Attorney, notifying the court and parties that defendant is now representing himself.

ANALYSIS:

Plaintiff American Centurion Bank seeks a court order evidencing assignment of the judgment it has against defendant to American Express National Bank. Plaintiff argues that plaintiff merged with and into American Express National Bank effective April 1, 2018, that the surviving entity after the merger is American Express National Bank, and that plaintiff intends to enforce the judgment under its true and current name of American Express National Bank.

Plaintiff relies on CCP section 673, which provides:

“(a) An assignee of a right represented by a judgment may become an assignee of record by filing with the clerk of the court which entered the judgment an acknowledgment of assignment of judgment.

(b) An acknowledgment of assignment of judgment shall contain all of the following:

(1) The title of the court where the judgment is entered and the cause and number of the action.

(2) The date of entry of the judgment and of any renewals of the judgment and where entered in the records of the court.

(3) The name and address of the judgment creditor and name and last known address of the judgment debtor.

(4) A statement describing the right represented by the judgment that is assigned to the assignee.

(5) The name and address of the assignee.

(1) Made in the manner of an acknowledgment of a conveyance of real property.

(2) Executed and acknowledged by the judgment creditor or by the prior assignee of record if there is one.

(d)(1) If an acknowledgment of assignment of judgment purports to be executed or acknowledged by an authorized agent of the judgment creditor or an authorized agent of a prior assignee of record, then documentation sufficient to evidence that authorization shall be filed together with the acknowledgment of assignment of judgment.

(2) Notwithstanding paragraph (1), an assignee of a right represented by a judgment may also become an assignee of record by filing with the clerk of the court that entered judgment a court order or other documentation that evidences assignment of judgment by operation of law.”

There has been no acknowledgment of assignment filed by the moving party, and certainly no document complying with the provisions of subdivisions (b) or (c). No document including the required information has been filed, and no document is submitted which is executed and acknowledged by the judgment creditor or any prior assignee of record.

Plaintiff submits a declaration of counsel, who is not the judgment creditor, and cannot authenticate or testify to any current status or relationship of plaintiff, which does not include the required information, but states that American Express Centurion Bank merged with American Express National Bank as the surviving entity after merger, and purports to attach a public record document from the Office of the Comptroller of the Currency approving the merger. [Declaration of Plaintiff’s Counsel, Raluca Rohan, para. 2]. This is not an appropriate acknowledgment of assignment.

In addition, although the declaration references an attached Exhibit A in connection with the purported merger, there is no Exhibit A in any of the documents submitted with the motion. As noted above, such a document could not in any case be authenticated by an attorney for the judgment debtor with no facts which would indicate that the attorney has personal knowledge concerning the matters in which the judgment debtor is involved.

To the extent the motion relies on CCP section 673, subdivision (d), the motion fails to submit an acknowledgment of assignment of judgment under subdivision (d)(1), as noted above. To the extent plaintiff intends to rely on subdivision (d)(2), that subdivision requires the filing of “a court order or other documentation that evidences assignment of judgment by operation of law.”

There has been no court order filed, and again as noted above, there is no documentation other than a declaration of counsel unaccompanied by any supporting documents that could be construed to constitute evidence of an assignment of judgment “by operation of law.”

Plaintiff also does not submit any legal analysis or explanation of what such documentation would include, or explain how the referenced, unattached, document would in any case constitute evidence of an assignment of judgment by operation of law, or under what law. The relief cannot, and will not, be granted on this showing. The motion is denied.

In addition, the paperwork is confusing, as the motion is brought by attorneys for plaintiff, and by plaintiff, when the paperwork refers to moving party as the “assignee of record,” and “American Express National Bank,” when plaintiff in this action is American Express Centurion Bank, and not an assignee but the purported assignor. [See Decl., para. 2, p. 2: 5-7, (Proposed) Order p.1:23-27]. This confusion may be because under subdivision (d), “an assignee of a right represented by a judgment may also become an assignee of record by filing with the clerk of the court that entered judgment a court order or other documentation that evidences assignment of judgment by operation of law.” This subdivision does not appear to excuse the requirement to submit the documentation required under subdivision (b) and (c), and the moving party is not the assignee here, and could not be, because the assignee has not been added as a party to the action, so would have no standing to file paperwork or request relief from this court until it has obtained standing to appear in this case. Finally, as discussed above, there is no documentation submitted that evidences an assignment of judgment by operation of law, as no referenced document is attached, the purported evidence is not in any case properly authenticated, and there is no legal argument explaining the effect of any such evidence.

Plaintiff moves in the alternative for the court to enter an order permitting plaintiff to amend its pleading to reflect its current name pursuant to CCP section 473. Plaintiff quotes from CCP § 473(a), which provides:

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

Here, there is no pleading or proceeding outstanding as to the moving party, as judgment has been entered.

CCP § 576 provides:

“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Here, relief is not sought “before or after commencement of trial,” or “during the course of the action,” but after judgment has been entered, and after any time for appeal has long run.

Instead, since judgment has been entered, the proper subdivision of CCP § 473 would be subdivision (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.”

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...

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). (7Witkin, Cal. Procedure, supra, Judgment, at 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, 117-118.

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. Id.

Here, there has been no clerical error in the court’s judgment; judgment was directed to be entered in favor of plaintiff as named as requested by plaintiff in its Stipulation, Declaration of Eric Jun, and Order for Entry of Judgment Pursuant to CCP section 664.4 submitted to the court by plaintiff. Moreover, such a motion requires “notice to the other party,” which the moving papers concede has not been given here, as plaintiff intends to serve defendant after an order is issued by the court.

Relief is not available under this section. Moreover, it is not clear why plaintiff permitted judgment to be entered in its favor under the name American Express Centurion Bank on March 8, 2021, when plaintiff is now arguing that the merger was effective April 1, 2018, and any amendment or correction to the name of plaintiff could have been sought prior to entry of judgment. The motion is denied.

RULING:

[No Opposition]

Motion for Order Evidencing Assignment of Judgment by Operation of Law is DENIED WITHOUT PREJUDICE.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.