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What is and When Can One File a Motion Nunc Pro Tunc?
Dockets or minute orders in cases often have an entry stating that an earlier ruling is corrected, changed or amended nunc pro tunc and we have had phone calls from people asking what this means.
Nunc pro tunc generally means, in Latin, “turn back time” or “now for then.” It is a procedure used by courts to correct an earlier ruling, most commonly for a clerical error and is not to correct a judicial ruling (Hamilton v. Laine (1997) 57 Cal. App. 2d 885, 891), which is reserved for an appeal, writ or motion for reconsideration. It is to change something retroactively, in other words.
In California, "[a]ll courts have inherent authority to issue orders judgments nunc pro tunc . . . ." Martin v. Martin (1970) 2 Cal. 3d 752, 760. California cases state three situations under which the court is authorized to grant a judgment nunc pro tunc: (1) "[to] preserve[e] the legitimate fruits of the litigation which would otherwise be lost to the prevailing party;" (2) "[to] correct [a] deficiency in the recordation of a previous decision so as to express the true intention of the court as of the earlier date;" and (3) to correct a clerical error. Young v. Gardner-Denver Co. (1966) 255 Cal. App. 3d 915, 919. It is often understood that it is done to prevent injustice and to restore the original intent of the parties.
California law expressly permits modification of orders or judgments after entry: "[t]he 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 . . ." California Code of Civil Procedure § 473(d). The term "clerical error" covers "[a]ll errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence . . . the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence." Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal. App.3d 1199, 1204.
This standard encompasses misidentification or misdescription of persons or property affected by the court's judgment. Chula v. Superior Court (1962) 57 Cal. 2d 199, 206 (allowing plaintiff to add officer or shareholder who controlled litigation as a judgment debtor).
In Los Angeles County, there is a judicial council form, PRO 028, that can be completed by a judge or submitted by a party with a motion nunc pro tunc.
Nunc pro tunc generally means, in Latin, “turn back time” or “now for then.” It is a procedure used by courts to correct an earlier ruling, most commonly for a clerical error and is not to correct a judicial ruling (Hamilton v. Laine (1997) 57 Cal. App. 2d 885, 891), which is reserved for an appeal, writ or motion for reconsideration. It is to change something retroactively, in other words.
In California, "[a]ll courts have inherent authority to issue orders judgments nunc pro tunc . . . ." Martin v. Martin (1970) 2 Cal. 3d 752, 760. California cases state three situations under which the court is authorized to grant a judgment nunc pro tunc: (1) "[to] preserve[e] the legitimate fruits of the litigation which would otherwise be lost to the prevailing party;" (2) "[to] correct [a] deficiency in the recordation of a previous decision so as to express the true intention of the court as of the earlier date;" and (3) to correct a clerical error. Young v. Gardner-Denver Co. (1966) 255 Cal. App. 3d 915, 919. It is often understood that it is done to prevent injustice and to restore the original intent of the parties.
California law expressly permits modification of orders or judgments after entry: "[t]he 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 . . ." California Code of Civil Procedure § 473(d). The term "clerical error" covers "[a]ll errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence . . . the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence." Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal. App.3d 1199, 1204.
This standard encompasses misidentification or misdescription of persons or property affected by the court's judgment. Chula v. Superior Court (1962) 57 Cal. 2d 199, 206 (allowing plaintiff to add officer or shareholder who controlled litigation as a judgment debtor).
In Los Angeles County, there is a judicial council form, PRO 028, that can be completed by a judge or submitted by a party with a motion nunc pro tunc.
However, we at Greg Hill & Associates have used the procedure in a way that is a bit more aggressive. We have filed over a dozen motions to reclassify a felony as a misdemeanor nun pro tunc under Penal Code § 17(b)(3) when a felony was previously reduced under Proposition 47 (Penal Code § 1170.18) to a misdemeanor. We ask that the judge instead reduce the felony under 17(b)(3). We understand that this motion stretches the limits of nun pro tunc use into a murky area, as the earlier reclassification under Prop 47 was certainly not due to a clerical error. However, we have a good faith belief that our motion is to prevent injustice, restore the original intent of the parties and preserve the “legitimate fruits of the litigation that would otherwise be lost.”
Our success in having this motion granted has been about 80% of the time. Most judges will grant the motion if the prosecution has no objection to this. Some judges, however, will deny the motion because such felonies eligible for reduction, when reduced under Proposition 47, were only misdemeanors via Prop 47. In other words, asking to have the felony reduced under 17(b)(3), if made at that original time of the Prop 47 reduction, i.e., 2016, would not be possible because the felony was then still a straight felony except under Prop 47. Consequently, the judge will deny the motion. We explain this to the client before he or she retains us to file the motion.
