Case Number: KC068187 Hearing Date: March 14, 2018 Dept: J

Re: Chen-Chih John Yuan v. Fitcon LA, etc., et al. (KC068187)

MOTION: (1) TO AMEND PROCEEDING BY CORRECTING PLAINTIFF’S NAME (CCP § 473(A)(1)); AND (2) TO AMEND DEFAULT JUDGMENT TO CORRECT ERROR (CCP § 473(D))

Moving Party: Plaintiff Chen-Chih “John” Yuan (erroneously captioned as Chen-Chin John Yuan)

Respondent: No opposition filed

POS: Not OK[1]

The complaint was filed 1/25/16. The First Amended Complaint, filed 3/30/16, asserts causes of action against Hanz Jimenez, Fitcon LA and Does 1-20 for:

1. Intentional Misrepresentation

2. Negligent Misrepresentation

3. Negligence

4. Unfair Business Practices—Business & Professions Code § 17200

5. Breach of Contract

6. Breach of the Implied Covenant of Good Faith and Fair Dealing

7. Fraud and Deceit/Concealment

8. Violation of California Penal Code § 496(a)

9. Breach of Fiduciary Duty

10. Promissory Estoppel

11. Injunctive Relief

12. Accounting

On 8/24/16, defendants’ defaults were entered. On 11/29/16, the court’s default judgment was entered.
Plaintiff Chen-Chih “John” Yuan (erroneously captioned as Chen-ChinJohn Yuan) (“plaintiff”) moves the court for an order, per CCP § 473(d), amending nunc pro tunc the default judgment entered on 11/29/16 in this case in the following manner: that portion of the judgment beginning with the word “Parties” on page 2 at section 5 and continuing through the word “Yuan” in that same section on page 2, which reads as follows: “Parties. Judgment is a. [x] for plaintiff (name each): Chen-Chin John Yuan” be amended to read as follows: “Parties. Judgment is a. [x] for plaintiff (name each): Chen-Chih Juan Yuan” on the grounds that Plaintiff’s name was misspelled in the Judgment, as originally filed and entered, due to a clerical error on Plaintiff’s part, and Plaintiff’s true and correct name is spelled as follows: “Chen-Chih John Yuan.”

“When 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.” CCP § 187.

“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…” CCP § 473(a)(1). “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.” CCP § 473(d).

Plaintiff has provided the court with a declaration, advising as to the inadvertent misspelling of his name, and has attached a copy of his then-current California driver’s license containing the correct spelling of his legal name.

With that said, plaintiff is not the current judgment creditor. Plaintiff does not mention the fact that on 5/26/17, he filed an “Acknowledgment of Assignment of Judgment,” wherein he assigned the 11/29/16 judgment to “David F. Gonzalez, an individual and doing business as Swift Judgment Collections” (“Gonzalez”). There is no indication that plaintiff has given notice of this motion to judgment debtors or Gonzalez.

The motion is denied without prejudice. Any future motion must address the 5/26/17 acknowledgment.

[1] The motion was filed 3/7/18. There is no indication that judgment debtors or David F. Gonzalez dba Swift Judgment Collections were provided notice of this motion.