Judge: Upinder S. Kalra, Case: 24STCLC08569, Date: 2025-06-11 Tentative Ruling
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Case Number: 24STCLC08569 Hearing Date: June 11, 2025 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: June
11, 2025
CASE NAME: BM
Construction LLC v. 2211 Homes LLC, et al.
CASE NO.: 24STCLC08569
MOTION
FOR ORDER FOR FILING CLERK TO CORRECT SUMMONS AND COMPLAINT TO ORIGINAL FILING
DATE OF NOVEMBER 19, 2024
MOVING PARTY: Plaintiff
BM Construction LLC
RESPONDING PARTY(S): None
REQUESTED RELIEF:
1. An
Order correcting the filing date on its Summons and Complaint to the original
filing date of November 19, 2024.
TENTATIVE RULING:
1. Motion
for Order correcting the filing date of the Summons and Complaint is CONTINUED
to July 10, 2025 at 9:00 a.m.;
2. Plaintiff
to file supplemental declaration(s) by July 1, 2025.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On November 20, 2024, Plaintiff BM Construction LLC
(Plaintiff) filed a Complaint against Defendants 2211 Homes LLC and Hugh Hazen
Wilson IV (Defendants) with five causes of action for: (1) Breach of Contract,
(2) Open Book Account, (3) Account Stated, (4) Reasonable Value of Labor and
Material Furnished, and (5) Foreclosure of Mechanic’s Lien.
According to the Complaint, Plaintiff entered into a
construction agreement with Defendants to provide foundation improvements at
the real property located at 366 Kirby St., Los Angeles, CA 90042-2108 (the
Property). Plaintiff alleges that it commenced work on the project, invoiced
Defendants, who have refused to pay.
On December 17, 2024, Plaintiff filed a motion for order to
correct Summons and Complaint which the court took off calendar on February 19,
2025.
On February 4, 2025, Defendants filed an Answer and a
Cross-Complaint.
On March 10, 2025, Plaintiff/Cross-Defendant filed an Answer
to Defendant/Cross-Complainant 2211 Homes LLC’s Cross-Complaint.
On March 11, 2025, the parties filed a stipulation to
reclassify this matter as an unlimited civil matter which the court GRANTED.
On March 25, 2025, the court ORDERED this matter
reclassified as an unlimited civil matter.
On April 2, 2025, the court served notice of
reclassification and case reassignment.
On April 10, 2025, Cross-Defendant Hudson Insurance Company
filed an Answer to the Cross-Complaint.
On May 15, 2025, Plaintiff filed an Amended Notice of Motion
on its motion for order correcting the Summons and Complaint filing date.[1]
Said notice indicates the court, on its own motion, set the hearing date to
June 11, 2025. Any oppositions were due on or before May 29, 2025. As of June
6, 2025, the court has not received any oppositions.
LEGAL STANDARD:
“The function of a nunc pro tunc order is merely to correct
the record of the judgment and not to alter the judgment actually rendered—not
to make an order now for then, but to enter now for then an order previously
made.” (APRI Ins. Co. v. Superior
Court (1999) 76 Cal. App. 4th 176, 185 quoting Hamilton v. Laine (1997) 57 Cal.App.4th 885,
890.)
An order nunc pro tunc “cannot be made for the purpose of
declaring that something was done which was not done. Its only office is to
cause the record to show something done which was actually done, but which, by
misprision or neglect, was not at the time entered in the record.” (City of Los Angeles v. Superior Court for
Los Angeles County (1968) 264 Cal.App.2d 766, 771 quoting Cowdery v. London & San Francisco Bank¿(1903)
139 Cal. 298, 306.)
“[A] paper is deemed filed when it is deposited with the
clerk with directions to file the paper.” (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 778.)
ANALYSIS:
Plaintiff contends the Clerk rejected the Complaint on
November 19, 2024 for failing to comply with CRC, rule 2.111(9) and did not
provide notice to Plaintiff until November 20, 2024.
CRC, rule 2.111(9) requires:
“On the complaint . . . filed in a
limited civil case, below the character of the action or proceeding, the amount
demanded in the complaint, . . . stated as follows: ‘Amount demanded exceeds
$10,000’ or ‘Amount demanded does not exceed $10,000,’ as required by
Government Code section 70613.”
Plaintiff indicates in a declaration that lacks personal
knowledge that the Complaint was filed on November 19, 2024 but it was rejected
by the Clerk for failing to include this information. (Ryan Decl. ¶¶ 5-7.)
Plaintiff further indicates in a declaration that lacks personal knowledge that
litigation assistant, Ms. Schneider, spoke with the Clerk’s office they
immediately resubmitted the Complaint with this information. (Id. at ¶¶ 8-9.) However, Plaintiff did
not attach a declaration based upon personal knowledge showing they did submit the Complaint on
November 19, 2024.
Therefore, the court CONTINUES the hearing on Plaintiff’s
motion to July 10, 2025 at 9:00 a.m. to allow Plaintiff time to file
supplemental declarations supporting their motion.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1. Motion
for Order correcting the filing date of the Summons and Complaint is CONTINUED
to July 10, 2025 at 9:00 a.m.;
2. Plaintiff
to file supplemental declaration(s) by July 1, 2025.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: June 11, 2025 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court
[1]
The court notes that Plaintiff’s proof of service does not include
Cross-Defendant Hudson Insurance Company.