Notice of Motion And Motion To Amend Judgment Nunc Pro Tunc

Motion

Cal. Super. - 2nd Dist.August 28, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 02/25/2019 09:18 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk S H O W N Oo 0 uN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 COLLECTION AT LAW, INC. A PROFESSIONAL LAW CORPORATION Jon O. Blanda (State Bar No. 217222) Angela A. Velen (State Bar No. 217292) Jeffery Mukai (State Bar No. 273338) 3835 East Thousand Oaks Blvd., Suite R349 Westlake Village, California 91362 Phone Number (818) 716-7630 Facsimile (818) 716-7775 Attorneys for Plaintiff Global Merchant Cash, Inc. SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES CENTRAL DISTRICT - UNLIMITED JURISDICTION Global Merchant Cash, Inc. Case No. BS174997 NOTICE OF MOTION AND MOTION TO AMEND JUDGMENT NUNC PRO TUNC; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANGELA A. VELEN; [PROPOSED] ORDER AMENDING THE JUDGMENT Plaintiff, V. Sky Island, Inc. and Vincent Mehdizadeh, Date: April 3, 2019 Time: 8:30 AM Dept. 48 Reservation ID: 879285298861 Defendant(s). N e e r N a e ’ Na ar ? er ?’ a r ’ a aa ? “ a a ww e w “ e w “s ea t a ae TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 3, 2019, at 8:30 A.M. in Dept. 48, or as soon thereafter as counsel may be heard at the above referenced Court, located at 111 North Hill Street, Los Angeles, CA 90012, pursuant to California Code of Civil Procedure Section 473(d), Plaintiff, Global Merchant Cash, Inc., will move this Court for an Order amending nunc pro tunc the judgment entered on August 28, 2018 in the following manner and upon the grounds stated herein pursuant to Code of Civil Procedure Section 473(d) and applicable case law. That portion of the judgment on the application for entry of judgment on sister state Judgment number 4a, which reads as follows: “16% annual interest allowed by sister state” be amended to read as follows: “9%”. Furthermore, the portion of the application for entry of MOTION TO AMEND JUDGMENT = 1 - B W N Y oR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judgment on sister state judgment number 4b, which reads as follows: “Gen. Oblig. §5-501(1)” be amended to read as follows: “Civil Practice Law and Rules Section 5004". This motion is made on the grounds that said clerical error has caused the judgment that was actually entered to not accurately reflect the outcome indicated when the judgment was originally declared. Plaintiff's Motion is based upon the attached Notice; Memorandum of Points and Authorities; and the Declaration of Angela A. Velen, filed and served concurrently herewith; upon all papers, pleadings, records on file herein; and upon such further oral and documentary evidence as may be presented at the hearing on this Motion. DATED: 0} AT .2019 COLLECTION AT LAW, INC. By: ANGELA A. VELEN, ESQ. Attorney for Plaintiff MOTION TO AMEND JUDGMENT = 2 - N N Bs W N oo 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I STATEMENT OF THE FACTS On or about April 13, 2018, Plaintiff, Global Merchant Cash, Inc. (“Plaintiff”), obtained a judgment against Defendants, Sky Island, Inc. and Vincent Mehdizadeh (“Defendants”) in the sum of $101,275.43 in New York state. Defendants have not made any voluntary payments towards this outstanding judgment. Accordingly, on or about August 28, 2018, Plaintiff’s counsel submitted an application for entry of sister state judgment in this Court. Thereafter, the sister state judgment was entered in this court by the Clerk of the Court. However, Plaintiff’s counsel subsequently discovered a clerical error in 4a and 4b of the application for entry of judgment on sister state judgment as the incorrect interest rate and statute establishing the interest rate were listed on the application for entry of sister state judgment. Therefore, Plaintiff has filed the instant motion to amend nunc pro tunc the clerical error in the interest rate entered on August 28, 2018. IL. THE COURT SHOULD AMEND THE JUDGMENT AS TO CONFORM TO THE LAW The Constitution of the United States requires a State to enforce a valid judgment for the payment of money if it was rendered in another State although it would have been contrary to the public policy of the forum to allow action on the original claim. See Aspen International Capital Corp. v. Marsch (1991) 235 Cal. App. 3d 1199, 1206. 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. See Cal. Code Civ. Proc. § 473(d). Once a valid judgment has been rendered it must be accorded full faith and credit by every other court within the United States even though the cause of action upon which the judgment was based is against the law and public policy of the state in which enforcement is MOTION TO AMEND JUDGMENT - 3 = wn BA W N O w N N 10 11 2 13 14 13 16 17 18 19 20 21 22 23 24 25 26 27 28 sought. See. See Aspen International Capital Corp at 1204. A court of general jurisdiction has this inherent power to correct clerical error in its records, whether made by the court, clerk or counsel, at anytime so as to conform its records to the truth. See id. The general rule with respect to the power of the court to modify a judgment does not preclude the court from correcting clerical errors and misprisions either in the entry of the judgment or due to inadvertence of the court. See id. The term "clerical error" covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. 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 court has inherent power to correct such errors. See id at 1204 (holding that the California court has the authority to amend clerical errors to include an award of interest and costs in order to conform to the sister state judgment entered in Colorado). The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether it was the deliberate result of judicial reasoning and determination. See id. A correctable clerical error includes one made by the Court which cannot be reasonable attributed to the exercise of judicial consideration or discretion. See id. Here, on or about April 13, 2018, Plaintiff, obtained a Judgment against Defendants in the sum of $101,275.43. Thereafter, on or about August 28, 2018, Plaintiff’s counsel submitted an application for entry of sister state judgment to domesticate the judgment in this Court. Upon Plaintiff’s application, the Clerk of the Court entered the judgment. At no point did a judicial officer exercise any judicial discretion in the entry of judgment as it was entered by the Clerk. However, Plaintiff’s counsel discovered subsequently a clerical error in 4a and 4b of the application for entry of judgment on sister state judgment as it relates to the applicable sister state interest rate. MOTION TO AMEND JUDGMENT - 4 = © «Le 9 O N nn Bs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Specifically, on the application for entry of judgment on sister state judgment number 4a, Plaintiff incorrectly provides for 16% interest instead of 9%. In addition, number 4b provides the incorrect law section establishing the interest rate as it incorrectly cites Gen. Oblig. §5-501(1). The correct law section establishing the interest rate of the sister state judgment is Civil Practice Law and Rules Section 5004, making the total post-judgment interest amount $3,246.36 and not $5,815.71. | Finally, at no point did a judicial officer exercise any judicial discretion in the entry of judgment as it was entered by the Clerk, and is therefore, a correctable clerical error. Therefore, the calculation of the amount of accrued interest to be entered on the sister state judgment should be amended to $3,246.36, instead of $5.815.71 as originally calculated. Accordingly, Plaintiff respectfully requests the Court to correct the clerical error and state the accrued interest amount as $3,246.36 at 9% per annum based on the corrected law section establishing the New York interest rate (New York Civil Practice Law and Rules Section 5004). This will amend the interest figure from $5,815.71 to the corrected amount of $3,246.36, making the corrected total judgment amount as $104,956.79. IIL. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests the Court to correct the clerical error and state the accrued interest amount of $3,246.36 and the total judgment amount as $104,956.79. DATED: D, -1 A , 2019 COLLECTION AT LAW, INC. By: ANGELA A. VELEN, ESQ. Attorney for Plaintiff MOTION TO AMEND JUDGMENT - 5 - OO 0 NN S N wn bs W N R O N O N N N N N N em em e e pe d Re m ee ee d em ee d 0 N N N R W = O N Y e w w N O DECLARATION OF ANGELA A. VELEN I, Angela A. Velen, declare as follows: 1. \\W Wh AW AW A I am the attorney for Plaintiff, Global Merchant Cash, Inc. (“Plaintiff”), I have personal knowledge of the matters set forth herein and if called upon to do so, could competently testify thereto. On or about April 13, 2018, Plaintiff, Global Merchant Cash, Inc. (“Plaintiff”), obtained a Judgment against Defendants, Sky Island, Inc. and Vincent Mehdizadeh (“Defendants”) in the sum of $101,275.43. On or about August 28, 2018, I submitted an application for entry of sister state judgment in this Court. The sister state judgment was entered by the Clerk of the Court. However, I discovered a clerical error in 4a and 4b of the application for entry of judgment on sister state judgment. On the application for entry of judgment on sister state judgment number 4a, Plaintiff incorrectly provides for 16% interest instead of 9%. Furthermore, number 4b provides the incorrect law section establishing the interest rate. Plaintiff incorrectly cites Gen. Oblig. §5-501(1). The correct law section establishing the interest rate of the sister state judgment is Civil Practice Law and Rules Section 5004, making the total post-judgment interest amount $3,246.36 and not $5,815.71. Therefore, the calculation of the amount of accrued interest to be entered on the sister state judgment should be amended to $3,246.36, instead of $5.815.71 as originally calculated. Plaintiff respectfully requests the Court to correct the clerical error and state the accrued interest amount as $3,246.36, which makes the total judgment amount as $104,956.79. MOTION TO AMEND JUDGMENT = 6 = O O N Y nn A 10 11 12 13 14 15 16 17 18 19 20 21 p. 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 7 - (7. , 2019, at Westlake Village, California. ANGELA A. VELEN, Declarant MOTION TO AMEND JUDGMENT = 7 =