James Zukowksi v. Thomas A. Clark

Case Number

25CV00159

Case Type

Hearing Date / Time

Wed, 11/26/2025 - 10:00

Nature of Proceedings

Motion of Plaintiff for Amendment of Judgment Roll Pursuant to Code of Civil Procedure Section 473 and for Amended Judgment Nunc Pro Tunc

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 the reasons stated herein, the Court grants Plaintiff’s motion. The Court orders that the following documents filed in this matter are amended nunc pro tunc to correct the spelling of Plaintiff’s last name from “Zukowski” to reflect the true, legal spelling of Plaintiff’s last name, “Zukowsky,” at each place it appears: (1) the judgment entered on July 23, 2025, (2) the request for entry of default filed on March 26, 2025, (3) the complaint filed on January 9, 2025, (4) the summons filed on January 9, 2025, and (5) the civil case cover sheet filed on January 9, 2025.

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 16, 2025, the Court granted judgment in favor of Plaintiff after Plaintiff appeared before the Court and provided testimony:

“NATURE OF PROCEEDINGS: Default Prove Up Hearing

The Plaintiff James Zukowsky was sworn and presented testimony.

The Court grants the judgment.” (Minute Order, July 16, 2025.)

On July 23, 2025, after the default prove-up hearing held by the Court on July 16, 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. Plaintiff argued 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, 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 the judgment was due to a clerical error on the part of Plaintiff’s counsel.

On September 17, 2025, the Court denied Plaintiff’s motion without prejudice. The Court reasoned in part: “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.” (Minute Order, Sept. 17, 2025.)

On September 19, 2025, Plaintiff “move[ed] the Court for an Order amending the Complaint, Civil Case Cover Sheet, Summons, and Request for Entry of Default, to correct the misspelling of Plaintiff’s last name, and for issuance of an amended Judgment, nunc pro tunc to correspond with that correction.” (Motion, p. 1, ll. 23-26.)

Plaintiff argues in his motion “there is good cause to grant the relief Plaintiff seeks because of the following facts: 1. The use of the incorrect spelling ‘Zukowski’ in the Judgment Roll was the result of a clerical error by Plaintiff’s counsel; (Nielsen Decl. at ¶ 4.) 2. Plaintiff is and has always been the real party in interest with respect to the claims and causes of action set forth in this case; (Nielsen Decl. at ¶ 5.) 3. It is uncontroverted that the correct spelling of Plaintiff’s name is ‘James Zukowsky’; (Nielsen Decl. at ¶¶ 6-7.) 4. Failure to correct the misspelling of Plaintiff’s last name in the Judgment Roll could result in irreparable harm to Plaintiff with respect to collections; and 5. Defendant will not be prejudiced by the requested amendments because … Defendant received actual notice … and … Defendant’s response to the case, including the decision to accept a default judgment rather than to formally appear and contest the claims, was not based on the spelling of Plaintiff’s last name, which is the only change Plaintiff seeks.” (Motion, p. 2, ll. 10-26.)

Plaintiff relies on Code of Civil Procedure section 473, subdivision (a). (Motion, p. 2, l. 27.)

Analysis

“The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The Court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).)

“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.” (Code Civ. Proc., § 473, subd. (d).)

“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).) “The Court does retain power to correct clerical errors in a judgment which has been entered. However, it may not amend such a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 (Rochin).)

“There is no time limit within which this 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.)

“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.)

“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.)

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.) As to judicial error, “the trial Court does retain jurisdiction for a limited period of time to entertain and grant a motion for a new trial ([Code Civ. Proc.,] § 655 et seq.) or a motion for a judgment notwithstanding the verdict. ([Code Civ. Proc.,] § 629.) The Court also retains jurisdiction to consider and grant a motion to vacate a judgment and enter a different judgment for either of two reasons: an incorrect or erroneous legal basis for the decision, not consistent with or supported by the facts, or a judgment not consistent with or not supported by the special verdict. ([Code Civ. Proc.,] §§ 663, 663a.) The Court also retains jurisdiction to entertain and grant a motion for relief from a judgment taken against a party through mistake, inadvertence, surprise, or excusable neglect. ([Code Civ. Proc.,] § 473.)” (Rochin, supra, 67 Cal.App.4th at p. 1237.)

The Court denied without prejudice Plaintiff’s initial motion to correct the misspelling of Plaintiff’s name in the judgment nunc pro tunc, in part, on the basis that Plaintiff had not sought to amend his complaint or the judgment roll to correct the spelling of Plaintiff’s name. (Minute Order, September 17, 2025.) Plaintiff’s current motion filed on September 19, 2025, takes the additional step of seeking to amend his complaint and the judgment roll pursuant to Code of Civil Procedure section 473, subdivision (a)(1).

The Court finds that counsel’s misspelling of Plaintiff’s last name as “Zukowski” when it should have been spelled “Zukowsky” was a clerical error. (Nielsen Decl., ¶¶ 2-7.) Although Plaintiff’s counsel made the same misspelling in the judgment roll and the proposed judgment submitted to the Court, it is nonetheless clerical in nature.

When the Court entered the judgment on July 23, 2025, the Court intended to grant the judgment in favor of the person who appeared in the Courtroom on July 16 and provided sworn testimony in support of the judgment. (Minute Order, July 16, 2025.) The Court’s records reflect that the person who appeared before the Court on July 16, 2025, was Plaintiff with the legal spelling of “James Zukowsky.” (Minute Order, July 16, 2025.) The evidence establishes that the only reason the judgment did not reflect Plaintiff’s name with the correct spelling of “James Zukowsky” was a spelling mistake by counsel upon which the Court relied. (Nielsen Decl., ¶¶ 2-7.)

“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.)

Correcting a misspelling of a party’s name “does not effect an enlargement of the original judgment nor is it a modification thereof to correct a supposed error of law.” (Thomson v. L. C. Roney & Co. (1952) 112 Cal.App.2d 420, 425.) “The liberality with which a Court permits amendments of judgments where the record itself clearly reflects a clerical error should apply equally to the use of extrinsic evidence to clarify the name of the real [party].” (Id. at p. 427.)

“An amended complaint makes material changes when it increases the damages sought, or adds or changes a cause of action based on a different factual or legal theory. …  A change is material if the change would have impacted a reasonable Defendant’s consideration of whether to contest the claims or to default.” (Paterra v. Hansen (2021) 64 Cal.App.5th 507, 530.) Here, the evidence establishes that Defendant received actual notice of the allegations against him and the proposed amendments to form do not alter the substance of the allegations against Defendant. (Motion, p. 2, ll. 10-26; Proof of Service, filed March 20, 2025.) The proposed changes to the Plaintiff’s last name would not have impacted a reasonable Defendant’s consideration of whether to contest the allegations or to default.

The proposed changes to the judgment are clerical in nature and the proposed changes to the judgment roll are changes to form and not material or substantive changes. “The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect … .” (Code Civ. Proc., § 473, subd. (a)(1).)

For all the reasons stated herein, the Court grants Plaintiff’s motion. The Court orders that the following documents filed in this matter are amended nunc pro tunc to correct the spelling of Plaintiff’s last name from “Zukowski” to reflect the true, legal spelling of Plaintiff’s last name, “Zukowsky,” at each place it appears: (1) the judgment entered on July 23, 2025, (2) the request for entry of default filed on March 26, 2025, (3) the complaint filed on January 9, 2025, (4) the summons filed on January 9, 2025, and (5) the civil case cover sheet filed on January 9, 2025.