Filed 3/4/20 David S. Karton, A Law Corp. v. Musick, Peeler & Garrett LLP CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DAVID S. KARTON, A LAW CORPORATION,

Plaintiff and Appellant,

v.

MUSICK, PEELER & GARRETT LLP,

Defendant and Respondent.

B289113

(Los Angeles County

Super. Ct. No. BC206243)

____________________

APPEAL from an order of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Affirmed.

Benedon & Serlin, Gerald M. Serlin and Melinda W. Ebelhar for Plaintiff and Appellant.

Musick, Peeler & Garrett and Cheryl A. Orr for Defendant and Respondent.

____________________

Plaintiff David S. Karton, A Law Corporation (the Law Corporation) appeals from a postjudgment order granting an application by William Russell Dougherty to correct a prior order and judgment nunc pro tunc to reflect that the plaintiff was the Law Corporation instead of the erroneously identified David S. Karton (the Individual). We affirm.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

The factual and procedural history in this case is described in two prior published opinions—David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 149 (Karton I), and David S. Karton, A Law Corp. v. Dougherty (2014) 231 Cal.App.4th 600, 614 (Karton II))—and we need not repeat it here. One point is particularly relevant to this appeal: Through more than 20 years of litigation, the Law Corporation, not the Individual, has been the plaintiff.

In Karton I, we held that a default judgment in favor of the Law Corporation and against Dougherty was void and must be set aside. (Karton I, supra, 171 Cal.App.4th at p. 151.) In Karton II, we held that the trial court should have granted Dougherty’s motion for an award of prevailing party attorney fees against the Law Corporation. (Karton II, supra, 231 Cal.App.4th at p. 607.) Specifically, we directed the superior court to enter an “order granting Dougherty’s motion to be determined the prevailing party . . . and for an award of costs and attorney fees, in an amount to be determined on remand.” (Id. at p. 614.) Our remittitur issued in March 2015.

In April 2015, Dougherty filed a motion in the trial court “for an award of prevailing party attorneys’ fees” based on our decision in Karton II. The motion sought the award against the Law Corporation only. While that motion was pending, the Law Corporation filed a motion in the trial court for an order setting aside our opinion in Karton I.

On September 18, 2015, the trial court issued an order with a caption identifying the “Plaintiffs” [sic] as “DAVID S. KARTON,” and identifying the defendant as Andrew S. Kanigowski, a person unrelated to this litigation. The order provides that the court denied “plaintiff David Karton’s Motion to Set Aside 2009 Appellate Opinion” and granted “Dougherty’s Motion for Award of Prevailing Party’s Attorney Fees on Remand.” The order does not explicitly refer to the Law Corporation.

On September 25, 2015, the trial court issued the same order with a partially-corrected caption (the September 2015 order). Mr. Kanigowski’s name was replaced by Dougherty’s name as the defendant, but the caption and the body of the order continued to erroneously identify the Individual, not the Law Corporation, as the plaintiff and the party that had moved to set aside the Karton I opinion.

In November 2015, the Law Corporation filed a notice of appeal from the September 2015 order. It challenged only the part of the order denying its motion to set aside our opinion in Karton I. Although the Law Corporation appealed from an order that did not explicitly refer to the Law Corporation or identify it in the order’s caption, it did not suggest that the September 2015 order might not apply to it.

In November 2016, we issued an unpublished opinion affirming the September 2015 order. (Karton v. Dougherty (Nov. 29, 2016, B268342) (the 2016 opinion), vacated in David S. Karton, A Law Corporation v. Dougherty (Jan. 10, 2019, B268342).) The 2016 opinion and the ensuing remittitur, like the September 2015 order from which the Law Corporation appealed, misidentified the plaintiff as the Individual.

In December 2017, Dougherty attempted to obtain a writ of execution against the Law Corporation based on the September 2015 order. The superior court clerk refused to issue the writ because the September 2015 order (1) identified the Individual, not the Law Corporation, as the judgment debtor, and (2) did not specify an amount of the award.

In February 2018, Dougherty filed an application in the trial court to correct the September 2015 order and for a judgment nunc pro tunc as of September 25, 2015. Dougherty explained that he was “merely seeking the [c]ourt to correct its own order” so that the clerk could issue the writ of execution against the Law Corporation.

In opposing the motion, the Law Corporation did not dispute that the September 2015 order misidentified the plaintiff and judgment debtor as the Individual. Indeed, it noted that any effort by Dougherty to enforce the order against the Individual would be unlawful and that the order “is clearly void as to Mr. Karton.” Rather, it opposed the motion on the ground that our 2016 opinion, which repeated the trial court’s misidentification of the plaintiff, precluded the trial court from correcting that error. According to the Law Corporation, Dougherty was required to first file a motion in the Court of Appeal to recall that remittitur.

After a hearing in March 2018, the court granted Dougherty’s motion, citing Code of Civil Procedure section 473, subdivision (d), “which allows [the] [c]ourt to correct clerical mistakes in its orders.” In its ruling, the court acknowledged it had erroneously identified the Individual, not the Law Corporation, as the plaintiff in the September 2015 order. The court rejected the Law Corporation’s argument regarding the effect of our 2016 opinion and explained that the pertinent opinion is the 2014 Karton II opinion, which directed the court to enter an order granting Dougherty’s motion for an award of attorney fees against the Law Corporation.

On March 12, 2018, the court filed a judgment stating: “The [c]ourt having previously granted [d]efendant William Russell Dougherty’s Motion for Prevailing Party’s Attorneys’ Fees on Remand against David S. Karton, a Law Corporation, on September 25, 2015, in the amount of $655,258.80, and to prevent confusion regarding enforcement, the [c]ourt hereby enters a corrected [o]rder and [j]udgment [n]unc [p]ro [t]unc as of September 25, 2015, in favor of William Russell Dougherty and against David S. Karton, a Law Corporation, in the amount of $655,258.80.”

The Law Corporation timely appealed.

While this appeal was pending, Dougherty brought to our attention the fact that our 2016 opinion erroneously named the Individual as the plaintiff. We then recalled the remittitur, vacated the 2016 opinion, and concurrently issued a new unpublished opinion identifying the Law Corporation as the plaintiff and appellant. (David S. Karton, a Law Corporation v. Dougherty (Jan. 10, 2019, B268342).)

DISCUSSION

Courts have the inherent power to correct clerical errors, but not judicial errors, nunc pro tunc in final orders and judgments. (See, e.g., Estate of Eckstrom (1960) 54 Cal.2d 540, 544; Bastajian v. Brown (1941) 19 Cal.2d 209, 214; Estate of Goldberg (1938) 10 Cal.2d 709, 715–717; see also Code Civ. Proc., § 473, subd. (d).) “The test which distinguishes clerical error from possible judicial error is simply whether the challenged portion of the judgment was entered inadvertently (which is clerical error) versus advertently (which might be judicial error, but is not clerical error).” (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117 (Tokio); see George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 481 [“If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.”].)

The rule allows courts “to correct mistakes made in naming a party or in failing to name a party inadvertently omitted.” (Tokio, supra, 75 Cal.App.4th at p. 118; see Bree v. Beall (1981) 114 Cal.App.3d 650, 655–656 [court corrected judgment nunc pro tunc to change name of the judgment creditor from individual to corporation, where judgment was on cross-complaint and corporation was the only cross-complainant].) Thus, “[w]here the name of a person against whom a judgment has been rendered appears on the face of the record, the judgment may be corrected to show such true name, if by reason of clerical error the judgment failed to show such true name.” (Russ v. Smith (1968) 264 Cal.App.2d 385, 390.) There is no time limit to correcting such mistakes by a nunc pro tunc order (Estate of Goldberg, supra, 10 Cal.2d at p. 717), and corrections can be made “either before or after an appeal has been finally determined” (Boust v. Superior Court (1912) 162 Cal. 343, 345).

Here, there is no dispute that the identification of the Individual as the plaintiff and the failure to refer explicitly to the Law Corporation in the September 2015 order were errors. The Law Corporation argues, however, that “it cannot be determined whether this error was judicial or clerical.” We disagree.

The court issued the September 2015 order in this factual context: The only plaintiff in the action is and always has been the Law Corporation; the Individual was not a party to the litigation and, as the Law Corporation asserts, the order could not be enforced against him; the motion to set aside the Karton I opinion, which the trial court erroneously ascribed to the Individual, was brought by the Law Corporation only; Dougherty’s motion for attorney fees, which the court granted in the September 2015 order, sought an award of fees against the Law Corporation only; and the court’s order was in response to our directions in Karton II to grant Dougherty’s motion for attorney fees against the Law Corporation. Under these circumstances, there is only one rational inference to be drawn from the trial court’s identification of the Individual as the plaintiff in the September 2015 order: It occurred as the result of the court’s inadvertence. To hold otherwise, as the Law Corporation urges, would require us to conclude that the court deliberately ordered the Individual—a nonparty—to pay Dougherty’s attorney fees even though Dougherty had not sought relief from the Individual and the order would plainly contravene the Individual’s right to due process. Although a court’s order is ordinarily presumed to be correct, “[i]t cannot be presumed that the court intended deliberately to render and enter a judgment which was contrary to law.” (Pettigrew v. Grand Rent A-Car (1984) 154 Cal.App.3d 204, 211.) Any possible doubt as to the nature of the error is removed by the court’s statement that it was correcting the order nunc pro tunc based upon the rule permitting the court to “correct clerical mistakes in its orders.” (See Bowden v. Green (1982) 128 Cal.App.3d 65, 71 [“the best evidence [of the judge’s intent] is the judge’s own statement, either express or implied from the order of correction”].)

The Law Corporation further contends that the trial court could not correct the error in the September 2015 order because it was “contrary to the terms of a remittitur.” The remittitur the Law Corporation refers to is the remittitur corresponding to our 2016 opinion. There are at least two flaws in this argument. First, as Dougherty points out and the trial court understood, the relevant remittitur is the one issued in connection with our 2014 Karton II opinion. That is the remittitur that immediately preceded and precipitated Dougherty’s 2015 motion for an award of his attorney fees. That remittitur identified the Law Corporation as the plaintiff and the only party against whom we authorized an award of Dougherty’s attorney fees. It is thus that remittitur with which the trial court was required to comply with respect to Dougherty’s motion for attorney fees. When Dougherty brought to the trial court’s attention the fact that the September 2015 order did not comply with the Karton II remittitur due to the court’s party naming mistake, it was the court’s duty to correct that mistake. (See Meyer v. Porath (1952) 113 Cal.App.2d 808, 811 [courts not only have the power to correct clerical errors nunc pro tunc, “but are under the definite and manifest legal duty so to do”].) It correctly did so.

Moreover, our 2016 opinion did not address any issue concerning the identification of the plaintiff in the September 2015 order and expressed no view on that point. This court was focused solely on the issue presented by the Law Corporation: Whether the trial court erred in denying the Law Corporation’s motion to set aside our opinion in Karton I. We had no occasion to consider the correctness of the caption on the September 2015 order or of the trial court’s misnaming of the plaintiff. The 2016 opinion, therefore, established no law of the case with respect to the proper identity of the plaintiff and had no effect on the trial court’s duty to comply with our remittitur in Karton II or its power to correct a clerical error as to the plaintiff ’s identity. (See Estate of Horman (1971) 5 Cal.3d 62, 73 [“the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in the prior appeal”]; Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506 [court has power to correct clerical errors “even after affirmance of the judgment on appeal”].)

In its reply brief, the Law Corporation raises for the first time the argument that the error in naming the Individual as the plaintiff and moving party in the September 2015 order was void and “could not be revived” by subsequent acts, such as the March 2018 order correcting it. Even if the September 2015 order was void to the extent it purported to grant a motion for attorney fees against a person who was never a party in the case (see Moore v. Kaufman (2010) 189 Cal.App.4th 604, 616), it was merely defective as to the Law Corporation, which had been inadvertently omitted from it. (See Leviston v. Swan (1867) 33 Cal. 480, 484 [judgment that omitted name of certain defendants was defective and could be corrected by adding the omitted names].) Thus, although the court could not, as the Law Corporation states, “breathe life” into the void order as to the Individual, the misnaming of the party did not prevent the court from correcting the order to identify the party who should have been named. (See Bree v. Beall, supra, 114 Cal.App.3d at pp. 655–656; Dorland v. Dorland (1960) 178 Cal.App.2d 664, 670.)

Because the court did not err in correcting the September 2015 order nunc pro tunc, we affirm the March 12, 2018 order granting Dougherty’s application for that correction.

DISPOSITION

The March 12, 2018 order granting Dougherty’s application regarding attorneys’ fees award nunc pro tunc as of September 25, 2015 is affirmed.

Respondent Musick Peeler, as assignee for Dougherty, shall recover its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur.

CHANEY, J. WEINGART, J.*