Judge Upinder S. Kalra, Case Number: 21STCV45132, Date: 2023-10-20 Tentative Ruling

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CASE NAME: Joshua Feshbach, et al. v. VWH Trust aka VWH Trust UDT 6/12/15, et al.

RESPONDING PARTY(S): Defendant Anna Fay, LLC, Trustee of the VWH Trust UDT 6/12/15

1. An order amending the default judgment against Defendant Anna Fay, LLC, Trustee of the VWH Trust UDT 6/12/15

Plaintiffs Joshua Feshbach and David Bowden (Plaintiffs) filed a Complaint on December 9, 2021 against VWH Trust aka VWH Trust UDT 6/12/15; Anna Fay, LLC, Eden Darwish, David Darwish, as Trustees of VWH Trust aka VWH Trust UDT 6/12/15, and DOES 1 through 50.[1] The Complaint has two causes of action for: (1) Breach of Lease; and (2) Violation of Cal. Civ. Code § 1950.5.

This action concerns a leased premises located at 959 N. Vista Street, Los Angeles, California 90046-6609. Plaintiffs allege they entered into a 12 months lease as tenants at the subject property with defendant VWH Trust aka VWH Trust UDT 6/12/15, the landlord. (Compl. ¶ 11.) Plaintiffs allege that at the end of the lease, the landlord failed to return their $26,000 security deposit or remainder of the deposit after allowable deductions. (Compl. ¶¶ 14-15.) The landlord also allegedly failed to notify Plaintiffs of their right to request an initial inspection of the premises prior to moving out. (Compl. ¶ 22.)

Defendant Anna Fay, LLC, Trustee of the VWH Trust UDT 6/12/15 filed a motion to set aside default judgment on August 28, 2023 which was DENIED after the court held an evidentiary hearing.

On January 25, 2024, Defendant filed a Notice of Appeal as to the motion to set aside default judgment.

On February 14, 2024, Plaintiffs filed the instant motion to amend. On March 8, 2024, Defendant filed an opposition. On March 14, 2024, Plaintiffs filed a reply.

This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication [CCP § 437c (q)] or a special motion to strike [CCP § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.] As such, this court respectfully declines to rule on any of these objections. This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (Cal. Rules of Court (CRC), Rule 3.1113(l).) “A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.” (CRC, Rule 3.1306(c).) Defendant has not done so. Accordingly, the court denies Defendant’s request for judicial notice.

Courts have inherent powers to correct judgments by a nunc pro tunc order where there has been a 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).) This includes clerical errors when made by an attorney who drafts the judgment. (See In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151.) However, while a trial court may correct clerical errors and misprisions in a judgment, it cannot amend a judgment once entered, if the error to be corrected is a judicial one, for instance if it embodies an intentional action of the court even though legally erroneous. (Kamper v. Mark Hopkins, Inc. (1947) 78 Cal App 2d 885.)

CCP § 187 states: “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” “Section 187 contemplates amending a judgment by noticed motion. [Citations.] The court is not required to hold an evidentiary hearing on a motion to amend a judgment, but may rule on the motion based solely on declarations and other written evidence. [Citation.]” (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 280.) “In the interests of justice, the ‘‘‘greatest liberality is to be encouraged’’’ in the allowance of amendments brought pursuant to Code of Civil Procedure section 187. [Citation.]” (Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 7.)

Plaintiff seeks to amend the default judgment entered on May 22, 2023, to reflect the true name of Anna Fay, LLC, as Trustee of VWH Trust aka VWH Trust UDT 6/12/15. The change is to add “LLC” after Anna Fay which was not included in the judgment prepared by Plaintiff. Defendant argues that the court lacks jurisdiction due to the pending appeal on motion to set aside default judgment, that Plaintiff cannot seek relief under CCP § 473(a) and (b), and the judgment was not directed by the court under CCP § 473(d).

The court is not persuaded by any of Defendant’s arguments.[2] Plaintiff sought default against Defendant on February 28, 2022 and subsequently sought to amend the incorrect name of that defendant by April 5, 2022. (Heil Decl., Exhibits B and C.) The Judgment entered on May 22, 2023 has Defendant’s name but does not include LLC. This is clearly a clerical error. The court finds that Plaintiff has properly filed the instant motion and the court has the authority under Code of Civil Procedure §§ 187 and 473(d) to correct the clerical error.

[1] The Complaint is not signed in violation of CCP § 128.7(a).

[2] As to the February 20, 2024 Answer, even if the clerk allowed the filing, the Answer is not appropriate without setting aside the default. As to other arguments concerning service, the court held an evidentiary hearing as to service and found that Defendant lacked credibility. The court sees no reason to redevelop argument already ruled on. As to the appeal, the appeal will not be impacted by amending the judgment to accurately reflect Defendant’s name on the judgment.