Tentative Ruling: A Stewart Rubin, et al. v. Preferred Bank

Case Number

21CV03982

Case Type

Hearing Date / Time

Wed, 10/07/2026 - 10:00

Nature of Proceedings

Motion of Defendant and Cross-complainant Preferred Bank for Nunc Pro Tunc Order Correcting Final Judgment

Tentative Ruling

For Plaintiffs and Cross-Defendants A. Stuart Rubin and Annette Rubin: Franklin L. Ferguson, Jr.

                            

For Plaintiffs and Cross-Defendants Stuart Rubin and Annette Rubin as trustees of the Stuart and Annette Rubin Family Trust, dated 11/4/2003: Self-represented

                                   

For Plaintiff and Cross-Defendant Elliot Lander as trustee of the Stuart Rubin Children’s Trust, dated 12/21/2001: Self-represented

                                   

For Plaintiff 1604 Sunset Plaza LLC: Unrepresented

                                   

For Cross-Defendant CRG Investment Mgmt LLC: Unrepresented

                                   

For Cross-Defendant Jonah Rubin: Unrepresented

For Defendant and Cross-Complainant Preferred Bank: Michael E. Bubman, Mirman Bubman & Nahmias, LLP

RULING

The motion of defendant and cross-complainant Preferred Bank for nunc pro tunc order correcting final judgment is granted. The original judgment entered January 31, 2025, is amended nunc pro tunc to include attachment 5c. The amended judgment entered September 12, 2025, is reinstated as the operative final judgment in this action. The court’s set-aside order dated May 5, 2026, is vacated.

Background

On October 6, 2021, the operative complaint in this action was filed by plaintiffs A. Stuart Rubin (Stuart), Annette Rubin (Annette), 1604 Sunset Plazza LLC (Sunset Plazza), Stuart and Annette as trustees of the Stuart and Annette Rubin Family Trust, dated 11/4/2003 (collectively, Family Trust), and Elliot Lander as trustee of the Stuart Rubin Children’s Trust, dated 12/21/2001 (collectively, Children’s Trust) (collectively, Plaintiffs). The complaint named one defendant, Preferred Bank (Preferred), and asserted 11 causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) estoppel; (4) slander of title; (5) interference with contractual relationships; (6) interference with prospective economic advantage; (7) unfair business practices; (8) unjust enrichment; (9) declaratory relief; (10) breach of fiduciary duty; and (11) constructive fraud.

On April 5, 2022, Preferred filed an answer to the complaint. Concurrently with the answer, Preferred filed a cross-complaint (CC) against plaintiffs Stuart, Annette, Family Trust, Children’s Trust, and additional parties CRG Investment Mgmt LLC (CRG) and Jonah Rubin (Jonah) (collectively, Cross-Defendants), asserting five causes of action for: (1) breach of contract; (2) breach of guarantees; (3) money lent; (4) trespass; and (5) loss of use of real property.

On June 16, 2022, default was entered against Jonah and CRG.

On October 2, 2023, Preferred filed a motion for terminating discovery sanctions against Plaintiffs and Cross-Defendants.

On November 29, 2023, the court issued an order granting Preferred’s motion for terminating sanctions, dismissing the complaint in this action, and striking the answer to the CC. (See also Minute Order, Nov. 15, 2023.)

On December 26, 2024, Preferred filed a motion for judgment based on the terminating sanctions order.

Also on December 26, 2024, the CC was dismissed without prejudice as to Jonah.

On January 31, 2025, a court judgment by default (Original Judgment) was entered against Stuart and Annette as to the complaint and CC in the amount of $8,869,025.45, but attachment 5c naming the other intended judgment debtors was omitted.

On July 30, 2025, the court granted Preferred’s motion for attorney fees (Attorney Fee Award).

On September 12, 2025, an amended judgment (Amended Judgment) was entered in the amount of $9,818,512.23, which included the Attorney Fee Award and also included attachment 5c.

On May 5, 2026, the court on its own motion set aside (Set Aside Order) the Amended Judgment and reverted the award of attorney fees to the Original Judgment: “On the Court’s own motion, the Amended Judgment filed on September 12, 2025, is set aside. The Amended Judgment improperly includes additional parties listed on the attachment. Pursuant to the Minute Order filed on July 30, 2025, the only issue addressed was attorney’s fees. An amended judgment should not have been submitted. Accordingly, the award of attorney’s fees is reverted to the original Judgment filed on January 31, 2025.” (Set Aside Order, May 5, 2026.)

On August 3, 2026, Preferred filed this motion requesting that the court correct a clerical error pertaining to the omission of attachment 5c from the Original Judgment, nunc pro tunc, and reinstate the Amended Judgment which includes the Attorney Fee Award and attachment 5c. There is no opposition or response to this motion.

Analysis

“A final judgment terminates the litigation between the parties and leaves nothing in the nature of judicial action to be done other than questions of enforcement or compliance.” (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 (APRI).) Notwithstanding this general rule, “[t]he court does retain power to correct clerical errors in a judgment which has been entered.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 (Rochin).) “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 ….” (Code Civ. Proc., § 473, subd. (d).)

“[T]he court’s inherent power ‘to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.’ [Citation.]” (People v. Alanis (2008) 158 Cal.App.4th 1467, 1473 (Alanis).) “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.” (Code Civ. Proc., § 187.)

“There is no time limit within which [a clerical] correction need be made. The correction can often be made ex parte and even without notice. The only important limitation upon the power is that it must be used to correct ‘clerical’ errors, and cannot be used for ‘judicial’ errors.” (Lane v. Superior Court in and for Siskiyou County (1950) 98 Cal.App.2d 165, 168 (Lane).)

“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. The distinction between clerical error and judicial error is [that a judicial error is when] the error was made in rendering the judgment, [and a clerical error is made] in recording the judgment rendered.” (Rochin, supra, 67 Cal.App.4th at p. 1238.) Unlike clerical error, “[a]fter judgment a trial court cannot correct judicial error except in accordance with statutory proceedings.” (APRI, supra, 76 Cal.App.4th at pp. 181-182.)

“The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered. … The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge? Nunc pro tunc orders may not be made to make the judgment express anything not embraced in the court’s decision, even though the proposed amendment contains matters that ought to have been so pronounced. It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order.” (APRI, supra, 76 Cal.App.4th at p. 185-186.)

“Counsel who fail to correctly record the terms of a court-ordered judgment commit clerical error, and their error is correctable as such.” (In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151.) A court relying on a clerical error made by counsel while preparing a proposed judgment “did not exercise a judicial function in signing the judgment, and did not commit judicial error.” (Ibid.) This is considered clerical error. (Ibid.)

Here, the Original Judgment was entered on January 31, 2025. The Original Judgment was against Stuart Rubin, Annette Rubin, and against cross-defendants “[c]ontinued on Attachment 5c.” (Original Judgment, ¶ 5(c).) However, attachment 5c was omitted. (See Original Judgment.) Preferred Bank submits evidence that attachment 5c was inadvertently omitted from the proposed judgment submitted to the court, that this omission was a clerical error on the part of counsel, and that the court relied on the clerical error by Preferred’s counsel when entering the Original Judgment without attachment 5c. (Declaration of Morgan L. Bubman, ¶¶ 4-5.)

 

The court’s files support Preferred’s position. The Original Judgment was based on the court’s consideration of the written declaration submitted by Preferred pursuant to Code of Civil Procedure section 585, subdivision (d). (Original Judgment, ¶ 1(e).) The underlying declaration and motion for judgment sought judgment against “Annette Rubin (‘Annette’) and A. Stuart Rubin (‘Stuart’) (collectively, the ‘Rubins’); the Rubins, as Trustees of the Stuart and Annette Rubin Family Trust (‘Rubin Family Trust’ or ‘Family Trust’), dated 11/4/2003; 1604 Sunset Plaza, LLC (‘Sunset Plaza’); Elliot Lander/ Dusty Berke, as Trustee of the Stuart Rubin Children’s Trust (‘Children’s Trust’), dated 12/21/2001; and CRG Investment MGMT, LLC, a California Limited Liability Company (‘CRG’).” (Motion for Judg., filed Dec. 26, 2024, p. 2, ll. 5-6, 22-26.) The motion for terminating sanctions was brought against these same parties. (Motion for Term., filed Oct. 2, 2025, p. ii, ll. 8-17.)  

The court has considered the evidence and controlling legal principles. The Original Judgment in this action entered on January 31, 2025, was intended by the court to include attachment 5c, and was intended by the court to include as judgment debtors all cross-defendants described in Preferred’s motion for judgment filed December 26, 2024, at page 2, lines 5 through 6 and 22 through 26. The court will grant the motion.

The court will amend the Original Judgment nunc pro tunc to include attachment 5c. (See Code Civ. Proc., §§ 187, 473, subd. (d); Alanis, supra, 158 Cal.App.4th at p. 1473; Lane, supra, 98 Cal.App.2d at p. 168; Rochin, supra, 67 Cal.App.4th at pp. 1237-1238; APRI, supra, 76 Cal.App.4th at p. 185-186.) The court will reinstate the Amended Judgment which includes the Attorney Fee Award and attachment 5c as the operative final judgment in this action. The court will vacate the Set Aside Order as it was based on the same clerical error pertaining to the Original Judgment.