Metropolitan News-Enterprise


Tuesday, October 3, 2017


Page 1


Unfilled Blank Space in Judgment Wasn’t Clerical Error, Court of Appeal Holds

Plaintiff That Prevailed in Trial Court and Appeal Held Not Entitled to Interest From Time of Verdict Where Lack of Specification in Judgment as to When Interest Kicked in Reflected Judicial Vacillation


By a MetNews Staff Writer


The Fourth District Court of Appeal has held that where an $11.3 million judgment in favor of a plaintiff left a blank space for the date from which interest was to accrue and, following appeals by both sides, the plaintiff, who prevailed on appeal, sought to have the blank filled in to reflect the date of the verdict, the trial court was justified in denying the motion, declaring it was not clerical error, correctible at any time.

Writing for Div. Three, Justice Richard D. Fybel said that the omission was attributable to a judicial decision. Under Code of Civil Procedure §473, that can only be corrected within six months.

Friday’s decision, in an opinion that was not certified for publication, upholds Orange Superior Court Judge Ronald L. Bauer’s denial last year of a motion for relief by Garden Grove Galleria, LLC, which prevailed in its action for damages against Cathay Bank in a loan dispute.

The jury’s verdict came on Aug. 31, 2012.

‘Judgment From___’

On Jan. 14, 2013, Bauer had denied Garden Grove Galleria’s motion for prejudgment interest. The Feb. 24, 2014 judgment he signed granted interest “at 10% per annum from_____until paid.”

When the appellate process concluded, an attorney for Cathay Bank opined that intertest should run from the date the judgment was signed and Garden Grove Galleria moved to have the blank filled in with the date of judgment.

Bauer said in his 2016 minute order:

“The court has concluded that the absence of any date entered in the blank at page 4, line 28 on the Judgment signed February 24, 2014 did not constitute a ‘clerical’ error. A simple analysis would suggest that a ‘clerical’ error is distinct from ‘judicial’ action….The subject blank line is entirely the product of judicial action (or inaction). No clerk had anything to do with that act.”

‘Coulda, Woulda, Shoulda’

The trial judge went on to say:

“There is not a shred of evidence that the court intended to award the interest that the plaintiff now seeks. In fact, the only judicial action on the issue of interest was its denial of the plaintiff’s motion for an award of interest dating from the filing of this complaint. The time span covered by that motion necessarily included the period addressed in the present motion. Thus, the court then declined to award the very interest the plaintiff now seeks. The defendant here suggests that plaintiff’s counsel could have instantly modified that earlier motion to shrink its scope when it became apparent upon hearing that the motion was doomed. Ah, well. Coulda, woulda, shoulda.”

Fybel, in announcing an affirmance, declared that “[n]othing in the record shows that the blank line failed to reflect the trial court’s intent in pronouncing judgment.”

‘Action or Inaction’

He wrote:

“The trial court’s minute order confirms the blank line regarding the date upon which interest would begin to accrue was the product of judicial action or inaction—not clerical action. The record does not show the trial court ever decided the issue as to when interest should begin to accrue, much less that it should begin to accrue as of the date the jury verdict was rendered. Plaintiff could have sought to correct that omission in the judgment by filing a postjudgment motion addressing the interest accrual date; it did not. Over two years after judgment was entered, plaintiff sought to ‘correct’ the judgment with respect to the accrual date by characterizing the blank line as a clerical error even though to do so would broaden the terms of the judgment beyond the scope of what the record shows was intended by the trial court when judgment was pronounced.”

The case is Garden Grove Galleria v. Cathay Bank, G053543.

The attorneys on appeal are Jeffre T. Lowe of the mid-Wilshire law firm of Lowe & Baik, for the developer, and Thomas M. Robins III and Bruce D. Poltrock of the downtown Los Angeles firm of Frandzel Robins Bloom & Csato for the bank.


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