Siegal v. Superior Court of Los Angeles County

• Decision Date: 23 January 1968
• Citation: 65 Cal.Rptr. 311,68 Cal.2d 97,436 P.2d 311
• Parties: , 436 P.2d 311 Minna SIEGAL, as Special Administratrix, etc., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Tomasina Jamison PROVAS, a Minor, etc., Real Party in Interest. L.A. 29492.
• Court: California Supreme Court

Page 311

65 Cal.Rptr. 311

68 Cal.2d 97, 436 P.2d 311

Minna SIEGAL, as Special Administratrix, etc., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Tomasina Jamison PROVAS, a Minor, etc., Real Party in Interest.

L.A. 29492.

Supreme Court of California,

In Bank.

Jan. 23, 1968.

G. V. Weikert, Los Angeles, and Oscar Z. Wiseman, Beverly Hills, for petitioner.

No appearance for respondent.

Jerome Weber and Bertram S. Harris, Beverly Hills, for real party in interest.

MOSK, Justice.

This cause was transferred to this court after decision by the Court of Appeal, Second Appellate District, Division Three. After a thorough examination of the issue presented in the light of our holdings in analogous decisions and the declared intent of the California Law Revision Commission in proposing the governing statutory language, we have concluded that the opinion of the Court of Appeal prepared by Mr. Justice pro tempore McCoy (Siegal v. Superior Court (Cal.App.) 59 Cal.Rptr. 555) correctly disposes of the matter, and it is therefore adopted as and for the opinion of this court. The opinion follows:

This is a petition for a writ of mandate to require respondent court to set aside and vacate its order setting for trial a civil action which purports to be pending therein.

A trial was had in said court of the action of Tomasina Jamison Provas, a Minor, by Jerome Weber as Guardian ad Litem, Plaintiff, vs. Minna Siegal, as Special Administratrix, etc., Defendant, resulting in a judgment in favor of the defendant. Judgment was entered on November 16, 1965, and on November 18, 1965, notice of entry thereof was given by the clerk of the court. Plaintiff regularly and within due time moved for a new trial. This motion was argued and submitted on January 10, 1966. On January 31, 1966, the clerk mailed a card bearing the date of January 17, 1966, notifying the parties that 'On Jan. 14, 1966, the Court made the following order: Plaintiff's motion for new trial is granted. Refer to the minute order which sets forth the reasons for the Court's ruling.' No minute order was in fact made that day. A minute order dated February 1, 1966, was entered on February 3, 1966, and reads as follows: 'It appearing to the court that, through inadvertence, the minutes for department NE 'B' do not truly reflect the order of the Court for January 14, 1966, in that no minute order was made on that date in the above entitled action; the Court now orders its minute order for department NE 'B' made and entered Nunc pro tunc as of January 14, 1966 in the above entitled action to read as follows: 'Plaintiff's motion for new trial having been heretofore submitted to the Court for Decision on January 10, 1966, the court now renders its decision and order thereon as follows: 'Motion for new trial is granted. "' The order then states the grounds and the court's reasons for granting the new trial.

Thereafter, defendant refused to sign a Memorandum for Setting Contested Action and Certificate of Readiness as requested by plaintiff, asserting that the Nunc pro tunc order granting a new trial was void and a nullity. Under date of February 23, 1967, plaintiff filed a memorandum for setting and on March 9, 1967, the clerk issued and served Notice of Assignment of Trial Date, setting the action for trial on May 26, 1967. Defendant moved for an order vacating and setting aside said trial setting upon the ground that said action is no longer pending, judgment therein having become final. This motion was denied, and by the within petition defendant seeks to prevent he new trial proceedings.

Section 660 of the Code of Civil Procedure provides in pertinent part as follows: 'Except as otherwise provided in Section 12a of this code, the power of the court to pass on motion for a new trial shall expire 60 days from and after service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, then 60 days after filing of the notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within in said period as thus extended, the effect shall be a denial of the motion without further order of the court. A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the court shall constitute a determination of the motion even though such minute order as entered expressly directs that a written order be prepared, signed and filed. The minute entry shall in all cases show the date on which the order actually is entered in the permanent minutes, but failure to comply with this direction shall not impair the validity or effectiveness of the order.' The last three sentences of this section were added by 1959 amendment. (Stats.1959, ch. 468, p. 2403, § 1.)

The time within which the court had jurisdiction in this case to grant the motion for new trial expired on January 17, 1966. It is apparent that respondent court was of the belief, and it is the contention of real party in interest herein, that a new trial was actually granted on January 14, 1966; that through clerical inadvertence the order was not entered in the minutes on that date, and that the order of February 3 simply serves as a Nunc pro tunc order to correct the record to conform to the actual facts. The error in this position is the initial assumption that a new trial was in fact granted on January 14.

In 1957 a study by the California Law Revision Commission disclosed variance and confusion in the decisions as to what act must be done by a judge to make an effective ruling within the 60 days in which he has jurisdiction to act under section 660. ¹ In order to eliminate the uncertainty, it was recommended that a statute be enacted specifying precisely what must be done within said 60-day period to have an effective ruling on a motion for new trial and to prevent denial of the motion by operation of law. The commission deemed it important for parties, judges, counsel and court clerks that the law on this matter be perfectly clear. ² Accordingly, section 660 was amended in 1959, as above indicated, without change from the recommendation of the Commission, to specifically set forth the steps which must be taken Within the 60-day period in order effectively To determine a motion for new trial. These provisions are unambigous and clearly state that there is no effective determination of the motion until the actual entry of an order in the permanent minutes, or the signing and filing of a written order, i.e., a definitive, recorded act within the 60-day period.

In the instant case, neither of the required acts was performed within the statutory period. The ruling of the court made on January 14 was ineffective for any purpose until entered in the minutes, and such entry was not made until February 1. The motion was therefore, on January 17, denied by operation of law. This result cannot be avoided by the entry of a Nunc pro tunc order purporting to grant the new trial after the court has lost jurisdiction.

'The rule is well settled in this state that every court of record has the inherent power to correct its records so that they shall conform to the facts and speak the truth, and likewise correct any error or defect occurring in a record through acts of omission or commission of the clerk in entering of record the judgments or orders of the court, and such correction may be made at any time by the court on its own motion, * * *. (Citations.)

'It is equally well established that the court in the exercise of this power is not authorized to do more than to make its records conform to the actual facts, and cannot, under the form of an amendment of its records, correct a judicial error, or make of record an order or judgment that was never, in fact, given. * * * (Citations.)' (Haynes v. Los Angeles R.R. Corp., 80 Cal.App. 776, 780, 252 P. 1072.)

It is not the function of a Nunc pro tunc order 'to make an order now for then, but to enter now for then an order previously made.' (See, Smith v. Smith, 115 Cal.App.2d 92, 99, 251 P.2d 720.)

The time limits of section 660 are mandatory and jurisdictional,...