Motion to correct clerical error in judgment in California

A motion to correct a clerical error in a judgment in California is the topic of this blog post.  

A motion to amend a judgment in California to correct a clerical error is filed pursuant to Code of Civil Procedure section 473(d). This motion is used to correct inadvertence or errors in recording the judgment. However it should be noted that it cannot be used to contest the intended terms of the judgment. The motion can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A motion to amend a judgment in California to correct a clerical error is filed on the grounds that the recorded terms of the judgment do not agree with the outcome indicated when the judgment was initially declared. This motion is a very limited tool as it is authorized to be used only to correct clerical errors.

However a trial court is given very broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even years after the case has closed. But a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

Thus the party who is seeking to persuade the court that the error was merely clerical must be very careful and also aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

However it should also be noted that there are many instances in which an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party's attorney's and accountant's fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. See Estate of Goldberg (1938) 10 C2d 709, 717. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

The California Supreme Court has also stated in a case decided over 40 years ago that all courts have the inherent power to enter an order entering a judgment nunc pro tunc All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree. But the motion should only be used in the right situations.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to amend a judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority; sample declaration, proposed order and proof of service by mail sold by the author can see below.

   Sample Motion to Amend California Judgment to Correct Clerical Error by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Sewer service by debt collection companies

Sewer service by debt collection companies is the topic of this blog post.  The term sewer service is based on and refers to figuratively and in some cases literally throwing the summons and complaint in the sewers near the homes of defendants such as debtors and then obtaining a default judgment from the court by filing a fraudulent proof of service.  The great majority of cases that I work on are from the State of California although the basic principles discussed in this blog post should be quite similar throughout the United States.

The practice of sewer service is both despicable and absolutely illegal, yet it has been going on for over 40 years in various types of litigation cases and is growing more and more widespread all over the United States, particularly in debt collection cases involving debt collection agencies and debt buyers.

It should be noted that any judgment entered without valid service of process is void anywhere in the United States as the United States Supreme Court ruled unanimously in a case that was decided over 25 years ago that any judgment entered where the defendant was not properly served is void, violates due process and can be set aside at any time.

I honestly do believe that most process servers are honest and would never falsely claim that they served someone whom they had never served. However I also know from my own personal knowledge working in California and Federal litigation since 1995 that extreme cases of sewer service are a fact and I will briefly describe just two of the more outrageous cases I have worked on.

I recently worked on a case where the defendant was supposedly served by substituted service at a mail drop that he had not used as a mailing address for over 2 years, the lawyers for the plaintiff had sent a demand letter to a post office box several months before.  The defendant had no knowledge of the lawsuit or judgment until he was informed by someone that the real property he had sold to them had a lien on it. He then went to the Courthouse and copied the entire Court file. The documents show that one process server with one company had went to the mail drop office several times but that they “cannot verify the address is still used by the defendant”. Another document filed several months later by another process server with another company claims that they performed substituted service on the female employee “who verified the address is still used by the defendant.” 

Several years ago I worked on another case where on the exact date and time that the alleged service was made the defendants were on an airplane and were flying to the Philippines!

Situations such as the two I described earlier are generally good situations in which to seriously consider filing a motion to vacate the default and judgment under Code of Civil Procedure section 473(d) on the grounds that the default and judgment are void due to defective service of process resulting in a judgment void for lack of personal jurisdiction and also request that service of the summons and complaint be quashed.

Attorneys or parties in California that would like to view a portion of an 11 page sample motion to vacate a void judgment under Code of Civil Procedure section 473(d) and quashing service containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion to vacate judgment and quash service for California




Attorneys or parties who wish to view portions of over 300 sample legal documents for California and Federal litigation created by the author of this blog post can use the link shown below.

Over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 


 

Filing a motion to vacate a void default judgment in California under Code of Civil Procedure section 473(d)

Filing a motion to vacate a void default judgment in California under Code of Civil Procedure section 473(d) is the topic of this blog post. Proper use of this motion is very useful to a defendant against whom a void judgment has been entered.

A judgment can be void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

Code of Civil Procedure section 473(d) states that, "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."

It must be noted that in order to obtain relief under Code of Civil Procedure section 473(d),  the judgment must be considered a void judgment, and not merely a voidable judgment.

"A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A California Court of Appeal has held that a judgment is void if the court lacked jurisdiction over the parties in cases where the defendant was not validly served with a summons.

If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.

Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.

Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.

If the court has jurisdiction over the parties and subject matter but acts "in excess of its jurisdiction," its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.

If a party did not have actual or constructive notice of the lawsuit then the judgment is void.  Lack of actual or constructive notice of proceedings (e.g., because papers served on defendant's attorney who had been suspended by State Bar and thus had no authority to represent defendant). Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal. App.3d 549, 553.

And if the plaintiff did not serve the statement of damages required in personal injury and death actions the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862, the court found the default improperly entered for failure to appear at trial.

Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.

The law in California is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.

Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required as has been stated by the California Supreme Court over 100 years ago.

The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.

A California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.

 Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249, judgment was not affected by a nonresident's failure to bring a motion to quash.

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a void judgment in California can click below to purchase a sample motion complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author.

Sample motion to vacate void judgment in California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.