Judge: Theodore R. Howard, Case: 15-822570, Date: 2022-09-08 Tentative Ruling

The motion by defendants Musa Madain (“Madain”) and The Grand Theater, Inc. (“TGT”), (together “defendants”) pursuant to CCP §473(d) for an order vacating the judgment against them is DENIED.

Preliminary Matters

Defendants’ Request for Judicial Notice under Evid. Code §§452(c) and 452(h) is DENIED as to both exhibits. 

Plaintiffs’ objections to defendants’ evidence are all SUSTAINED.

Merits

Defendants ask this court to set aside the 7/18/2017 stipulated judgment as void pursuant to CCP §473(d).

“In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments, Ltd. (2018) 20 Cal.App.5th 1009, 1020).

An order is void on its face only when the invalidity is apparent from the judgment roll or court record without consideration of extrinsic evidence. (Id. at p. 1021) If the party moving to set aside the judgment under section 473(d) attacks the judgment as void on its face, there is no time limit for making the motion. (Ibid.) However, if the invalidity can only be shown through consideration of extrinsic evidence, such as declarations or testimony, the judgment is not void on its face and the motion must be made within the six-month time limit set forth in CCP §473(b). (Ibid.; See also Marston v. Rood (1944) 62 Cal.App.2d 435, 436).

The invalidities which defendants contend cause the stipulated judgment to be void are that plaintiff was without authority to enter into the underlying contracts as a fiduciary of the IRA and that the interest rates on the underlying contracts violated usury laws. The determination of whether the stipulated judgment is void based on these contentions can only be shown through review of extrinsic evidence, such as that submitted by the parties in support of and opposition to this motion.

As such, defendants were required to bring this motion within the 6 month time limit set forth in CCP §473(b). This they did not do.  The judgment which defendants seek to have vacated was entered on 7/18/2017, almost 5 years before this motion was filed. The motion is therefore untimely.

The amended judgement entered on 1/19/2022, inserting TGT for M3, did not change the terms of the stipulated judgment in any manner.  TGT simply replaced M3 as the judgment debtor. TGT does not argue that the order replacing it for M3 was void.

Further, the court finds the omission of IRA on the 7/18/2017 judgment to be a clerical error. The 7/18/2017 order indicates the court was enforcing the Settlement Agreement pursuant to the parties’ stipulation and that Judgment was to be entered in favor of “Plaintiffs”, both of whom were parties to the settlement agreement with defendants. 

The court therefore orders the judgment corrected nunc pro tunc to add IRA as a plaintiff pursuant to the court’s inherent power. (See Ames v. Paley (2001) 89 Cal.App.4th 668, 674 and In re Goldberg’s Estate (1938) 10 Cal.2d 508, 513 [35 year lapse did not preclude nunc pro tunc order].

Defendants’ motion is DENIED.

Defendants are ordered to give Notice of Ruling.