Metropolitan News-Enterprise


Tuesday, January 29, 2019


Page 4


Violation of Improperly Amended Judgment Is Not a Contempt—Court of Appeal


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday issued a writ of mandate directing a trial court to vacate its contempt order against a defendant for violating a judgment that was modified nunc pro tunc, holding that the modification was invalid because it was not based on a clerical error.

The opinion, which not certified for publication, was written by Justice Judith L. Haller of Div. One.

San Diego Superior Court Judge Randa Trapp first indicated her intent to find in favor of the plaintiff in a loan dispute, CRE Venture 2011-2, LLC (“CRE”), in February 2016. The proposed judgment filed that month indicated that the defendants, three trustees of the pledgors to the disputed loan, would need to turn over to CRE their “ownership interests” in the borrower company, Gateway.

In March 2016, Trapp adopted changes to the proposed judgment suggested by the defendants, including changing “ownership interests” to “membership interests,” and striking a sentence enjoining the defendants from transferring their ownership interests in Gateway, or its assets.

Nunc pro Tunc

Two years later, CRE moved for a contempt order against the pledgors alleging they had failed to comply with the March 2016 judgment by not turning over Gateway’s assets nor their power to control the company. Rather than ruling on contempt, Trapp modified the March 2016 judgment to revert back to the February 2016 proposed version.

She declared:

“It was not the intent of the court to facilitate [Pledgors’] use of the judgment as a means to avoid enforcement but it appears that is exactly what is occurring. The [March 2016] judgment does not reflect the express judicial intention of the court to award all interests in Gateway to [CRE]….

“Accordingly, the [Final] Judgment entered March 23, 2016 is vacated and the court enters judgment, nunc pro tunc, to the Judgment entered on February 16, 2016.”

CRE then moved again for a contempt order, based on the now-modified judgment in the case. Trapp granted the motion and imposed sanctions of $97.000 plus CRE’s attorney’s fees.

Modified Judgment Invalid

Haller wrote:

“The court based its contempt award on its finding Pledgors violated the March 9, 2018 order reinstating the February 2016 judgment. This contempt finding was improper because the court had no authority to reinstate the February 2016 judgment and thus this judgment was invalid.”

She noted the rule that a trial court cannot “alter its own judgment outside the statutory time periods, except for clerical errors” adding:

“In its March 9, 2018 order, the court stated it believed it had the authority to correct the March 2016 judgment because it found (1) the March 2016 judgment did not ‘reflect the express judicial intention of the court to award all interests in Gateway to [CRE]’; and (2) it was ‘misled by [Pledgors] in their objections to the original judgment.’ Neither of these grounds shows the type of error that permits a court to later modify the judgment.”

Error Wasn’t Clerical

The jurist continued:

“First, the fact that a judgment does not accurately reflect a subjective judicial intent to provide different or greater relief is not a clerical error….

“Second, the fact that the court believed it was ‘misled’ by Pledgors does not establish a clerical error….

“This is not a situation in which the court intended to pronounce judgment in one way, but the entered judgment did not reflect that intent. Rather, this situation occurred because the court later realized that the manner in which it intended to (and did) enter judgment was making it more difficult for the prevailing party to enforce the judgment. Changing the wording of a judgment two years later to allow stronger or better enforcement of a judgment does not reflect correction for a clerical error; rather it is an impermissible change for judicial error.”

Haller rejected CRE’s contention that the defendants could be held in contempt even under the March 2016 judgment, noting that the judgment was not clear enough to support a contempt order.

The case is Dowdy v. Superior Court, D074301.


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