Judge: Upinder S. Kalra, Case: BC471272, Date: 2023-01-09 Tentative Ruling

Case Number: BC471272    Hearing Date: January 9, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   January 9, 2023                                              

CASE NAME:           Residential Funding Company LLC v. Khachik Pogosian, et al.  

CASE NO.:                BC471272

MOTION

MOVING PARTY: Judgment Creditor Fidelity National Title Insurance Company

RESPONDING PARTY(S): None as of January 4, 2023.

REQUESTED RELIEF:

1.      An order amending the judgment to correct the clerical error entered back in January 2013

TENTATIVE RULING:

1.      Motion to Amend is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On October 11, 2011, Plaintiff Residential Funding Company, LLC filed a complaint against Defendant Khachik Pogosian, Vahen Arshakian, Milton S. Ogdoc, Maria Luisa v. Ogdoc, Castle & Cooke Mortgage, LLC, Plum Canyon Community, and all persons unknown claiming any legal or equitable right, title, estate, lien or interest, in the property described in the complaint adverse to the plaintiff’s title, or any cloud upon plaintiff’s title, to the property commonly known as 28221 Shirley Lane, Santa Clarita, California.

On January 14, 2013, Judgment was entered.

On October 19, 2022, Judgment Creditor Fidelity National Title Insurance Company filed the current Motion to Amend Judgment Nunc Pro Tunc. 

LEGAL STANDARD:

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “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.” 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)  Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.  The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.  (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390).) 

JUDICIAL NOTICE:

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

            Fidelity requests the following two documents be judicially noticed:

1.      A copy of the Stipulation to Substitute Fidelity National Title Insurance Company (“Fidelity”) as Plaintiff in This Action filed on October 22, 2012, and the Order entered by the Court pursuant to the stipulation of the parties, substituting Fidelity as the plaintiff in lieu of Residential Funding Company to prosecute all claims alleged in the complaint against all remaining defendants.

2.      A copy of the Default Judgment by Court entered on January 14, 2013, in favor of Residential Funding Company, LLC and against defendant Vahen Arshakian.

As these are records from the court of this state, the Request for Judicial Notice is GRANTED, as to both documents.

ANALYSIS:

Judgment Creditor Fidelity National Title Insurance Company moves to amend the judgment that was entered on January 14, 2013 to correct the name of the judgment creditor to Commonwealth  Land Title Insurance Company (“Commonwealth”.).

            The original Plaintiff Residential Funding Company (“RFC”) entered into a settlement with Defendants Ogdocs and Fidelity, who was the title insurer for the Ogdocs. However, when the judgment was entered against Defendant Arshakian, the name of the judgment creditor was listed as RFC rather than Commonwealth, who was the successor-in-interest. (Motion 3: 16-20, RJN 2,)

            Fidelity argues that under CCP § 473(a)(1), the Court may fix a mistake, such as a clerical error. Here, the RJN 1, which is a copy of the stipulated judgment, indicates that Commonwealth is the proper plaintiff, and the judicial council form contains an error. Moreover, regardless of the lapse in time, the court can fix clerical errors to ensure that the records “will conform to and speak the truth.” (Motion 5: 3-5, referencing Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204.) Fidelity also argues that, under CCP § 187, the amendment is justified. Moreover, this amendment does not prejudice the Judgment Debtor, as the obligations have not changed.

            The Court finds that the amendment is justified. Under CCP § 473, the Court has the authority to make amendments to correct errors. Here, while there was a large gap in time, subsection (a)(1) of CCP § 473 contains no time limit. Additionally, amendments are to be granted liberally to ensure that justice is served. Here, the amendment is to correct a clerical error. This correction will not impact the judgment debtor in any manner and will ensure that the correct party will receive the judgment as stated in the stipulation.

            Motion for Leave to Amend Judgment is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion for Leave to Amend Judgment is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             January 9, 2023                       _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court