James Zukowksi v. Thomas A. Clark

Case Number

25CV00159

Case Type

Hearing Date / Time

Wed, 09/17/2025 - 10:00

Nature of Proceedings

Motion For Amended Judgment Nunc Pro Tunc Pursuant To Code of Civil Procedure section 473.

Tentative Ruling

For Plaintiff James Zukowksi: Kaelan T. Nielsen, Alexander M. P. Perry, Nielsen & Perry, LLP

For Defendant Thomas A. Clark: No appearance

RULING

For all reasons discussed herein, the motion of Plaintiff to amend judgment nunc pro tunc pursuant to Code of Civil Procedure section 473 is denied without prejudice.

Background

On January 9, 2025, Plaintiff James Zukowski filed a complaint against Defendant Thomas A. Clark, alleging one cause of action for intentional tort. As alleged in the complaint, on November 28, 2024, Plaintiff was traveling northbound on San Isidro Rd. in Santa Barbara, California, in a 2024 Porsche 911 GT3 RS (the vehicle) which Plaintiff had purchased two days earlier. (Compl., ¶ IT-1.) As Plaintiff passed a residence located at 629 San Isidro Rd. (the property), Defendant, who is the record owner of the property, threw approximately ten large rocks at the vehicle which cause the vehicle to suffer damage. (Compl., ¶¶ IT-1 & EX-2.) Plaintiff seeks to recover the amount of $414,368.41, plus exemplary damages in the amount of $2,071,842.05. (Compl., ¶¶ IT-1 & EX-3.)

On March 26, 2025, the default of Defendant was entered as requested by Plaintiff.

On July 23, 2025, after a default prove-up hearing held by the Court on July 16 and during which Plaintiff was sworn and presented testimony, the Court entered judgment (the judgment) in favor of Plaintiff and against Defendant in the total amount of $2,516,510.46.

On July 28, 2025, Plaintiff filed a motion to amend the judgment nunc pro tunc pursuant to Code of Civil Procedure section 473. The motion is supported by a declaration of Plaintiff’s counsel, Kaelan T. Nielsen, who states that Plaintiff’s legal name is “James Zukowsky”, that Plaintiff provided the correct spelling of his name to the Court as part of Plaintiff’s sworn testimony during the default prove-up hearing held on July 16, 2025, and described above, that the correct spelling of Plaintiff’s name is included in the Court’s July 16, 2025, Minute Order, and that the use of the incorrect name “James Zukowski” in judgment was due to a clerical error on the part of Plaintiff’s counsel. (Nielsen Decl., ¶¶ 3-6.)

Nielsen further asserts that the error in Plaintiff’s name appearing in the judgment is clerical, and may result in irreparable harm to Plaintiff in regard to enforcement of the judgment. (Nielsen Decl., ¶ 7.)

Analysis

Code of Civil Procedure section 473 authorizes a Court to “upon motion of the injured party, ... 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).) The Court is also vested with inherent power “[i]ndependently of statute to correct mistakes and to annul orders and judgments inadvertently or improvidently made.” (Bastajian v. Brown (1941) 19 Cal.2d 209, 214.) “The controlling principle is that ... clerical error may freely be corrected postjudgment....” (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117 (Tokio Marine) [also comparing amendments based on judicial error].)

Generally, clerical errors are the result of “inadvertence on the part of the Court and the clerk” and “not ‘the deliberate result of judicial reasoning and deliberation,’ [citation]”, and cannot “ ‘reasonably be attributed to exercise of judicial consideration or discretion.’ [Citation.]” (Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 211; see also Gill v. Epstein (1965) 62 Cal.2d 611, 615 (Pettigrew) [clerical error shown where Court intended to limit issue at trial]; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 [judgment which did not “reflect the express judicial intention of the Court” was clerical error]; Ames v. Paley (2001) 89 Cal.App.4th 668, 673 [inadvertent omission of an oral ruling regarding spousal support was a clerical error].) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by a Court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.]” (In re Candelario (1970) 3 Cal.3d 702, 705.)

For all reasons discussed below, though Plaintiff asserts that the judgment includes what Plaintiff contends is a clerical error in regard to the correct spelling of Plaintiff’s name, the present record reflects that the judgment does not contain a clerical error.

The first page of any complaint must include “the title of the case...” containing “the name of each party....” (Cal. Rules of Court, rule 2.111(4); see also Code Civ. Proc., § 422.40 [“the title of the action shall include the names of all the parties...”].) Plaintiff’s name is stated in the complaint as “James Zukowski”. (Compl. at p. 1.) Court records also reflect that the summons ostensibly served on Defendant states Plaintiff’s name as “James Zukowski”. Noted above, the judgment is entered in favor of “James Zukowski”, which is the name stated in the summons and complaint.

Though information appearing in the Nielsen declaration and described above may be sufficient to show that Plaintiff’s name is stated or spelled incorrectly in the complaint, the Court has no record showing that Plaintiff, at any time during this litigation, sought leave to amend the complaint to correct any mistake in Plaintiff’s name before the judgment was entered. (See, e.g., Code Civ. Proc., § 473, subd. (a)(1) [the Court may allow a party to amend a pleading “by correcting a mistake in the name of a party....”].) For this reason, the present record is sufficient to show that there does not exist any inadvertent error in the judgment in regard to the spelling of Plaintiff’s name, or that the judgment does not reflect any intention of the Court to conform Plaintiff’s name to that stated in the complaint, notwithstanding information appearing in the Court’s July 16, 2025, Minute Order.

In addition, under circumstances such as those present here where a Defendant fails to answer a complaint, “the summons, with the affidavit or proof of service; the complaint; the request for entry of default with a memorandum indorsed thereon that the default of the Defendant in not answering was entered, and a copy of the judgment...” constitute the “judgment roll”. (Code Civ. Proc., § 670, subd. (a).) While the Court has discretion to amend a default judgment to conform that judgment to the complaint, Plaintiff fails to explain why the judgment, or the judgment roll, fails to conform to the facts alleged in the complaint with respect to the manner in which Plaintiff’s name is stated. (See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 507-508 [general discussion of circumstances under which a Court may allow an amendment nunc pro tunc to conform judgment]; Pettigrew, supra, 154 Cal.App.3d at p. 209 [Court may “correct its records to conform to the facts”].)

Moreover, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) “The real party in interest is generally the person who has the right to sue under the substantive law.” (River’s Side at Washington Square Homeowners Assn. v. Superior Court (2023) 88 Cal.App.5th 1209, 1225.) This rule exists to, among other things, “fix and determine the real liability which is alleged in the complaint.” (Space Properties, Inc. v. Tool Research Co. (1962) 203 Cal.App.2d 819, 828.)

Considering that the complaint effectively alleges and represents that “James Zukowski” is the real party in interest with the right to bring the cause of action and claims alleged in the complaint (see Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 223-224 [discussion of capacity and standing to sue alleged in complaint]), Plaintiff fails to address whether or to what extent a modification to the judgment to include a name which is different from the name stated in the summons and complaint ostensibly served on Defendant, would materially alter any rights of Defendant as to the identity of the real party in interest pursuing the causes of action alleged in the complaint, and in whose favor the judgment was entered as to those causes. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238 [a Court “may not amend a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error”]; Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 991 [general discussion].)

“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). [Citation.] Unless the challenged portion of the judgment was entered inadvertently, it cannot be changed post judgment under the guise of correction of clerical error.” (Tokio Marine, supra, 75 Cal.App.4th at p. 117.) For all reasons discussed above, Plaintiff has failed to show why, and the present record does not reflect that, there exists any mistake, inadvertence, or other clerical error in the judgment in regard to Plaintiff’s name as stated in the complaint. Further, under the circumstances present here, the Court requires that its records “accurately and officially reflect[] the work of the Court....” (Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.) For these and all further reasons discussed above, the Court will deny the motion.

The Court’s ruling herein is without prejudice to any future motion that may be filed by Plaintiff to correct Plaintiff’s name in this proceeding. The Court declines to issue an advisory opinion as to what, if any, procedures Plaintiff may appropriately employ.