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Broncel v. H&R Transport

September 8, 2010



This action arises out of a motor vehicle accident that occurred on February 3, 2006, in Merced County. Defendant H&R Transport, LTD ("Defendant") was operating a tractor trailer, which was involved in a collision with plaintiff Przemyslaw Broncel ("Plaintiff"). Pending before the Court is Plaintiff's motion for reconsideration of this Court's April 27, 2010 order, which granted Defendant's motion for reconsideration of the Merced County Superior Court's ("Merced Court") March 24, 2008 Nunc Pro Tunc order ("State Court Order"). For the reasons stated below, Plaintiff's motion for reconsideration will be granted.


On January 28, 2008, Plaintiff's original counsel, Sonia Perez-Chaisson ("Chaisson"), attempted to fax file a complaint, summons, and civil cover sheet with the Merced Court by faxing these documents to Official Payments Corporation ("OPC"), an automated fax filing service. On or about March 12, 2008, Chaisson inquired with the Merced Court as to the status of the complaint and was advised that it was never filed with the court. Plaintiff's complaint was rejected because it did not include separate transmittal cover sheets for the complaint and summons. On March 13, 2008, Plaintiff filed a personal injury action in the Merced Court. On March 17, 2008, Chaisson filed an ex parte nunc pro tunc motion in the Merced Court seeking to backdate the filing date of the complaint to January 28, 2008, which would put Plaintiff within the two-year statute of limitations for a personal injury action. On March 24, 2008, the Merced Court issued a Nunc Pro Tunc order, which allowed Plaintiff to backdate his complaint to January 28, 2008. On April 9, 2008, Defendant removed to this Court.

On January 27, 2010, Defendant filed a motion for reconsideration of the State Court Order. Defendant argued that the State Court Order was erroneous under California law because nunc pro tunc orders should only correct clerical errors and here the reason for the backdating of the complaint was due to Plaintiff's error, and not the Merced Court Clerk's Office's ("Clerk's Office") error. On April 27, 2010, this Court granted Defendant's motion for reconsideration because the evidence provided by the parties indicated that the error was attributable to Plaintiff and not the Clerk's Office. On May 25, 2010, Plaintiff filed a motion for reconsideration of the April 27, 2010 order. On June 14, 2010, Defendant filed an opposition.


Federal Rule of Civil Procedure 59(e) provides a mechanism for a court to alter, amend, or vacate a prior order. See Fed. R. Civ. Pro. 59(e); Hamid v. Price Waterhouse, 51 F.3d 1411, 1415 (9th Cir. 1994); Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994). "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890-91 (9th Cir. 2000). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden."

United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). "Rule 59(e) amendments are appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003); Kona Enters., 229 F.3d at 890. This standard is a "high hurdle." Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). To justify an amendment based on newly discovered evidence, a party "must show that the evidence was discovered after the judgment, that the evidence could not be discovered earlier through due diligence, and that the newly discovered evidence is of such a magnitude that had the court known of it earlier, the outcome would likely have been different." Dixon, 336 F.3d at 1022; Defenders of Wildlife v. Bernal, 204 F.3d 920, 929 (9th Cir. 1999). Rule 59(e) motions "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Carroll, 342 F.3d at 945; Kona Enters., 229 F.3d at 890. Stated differently, Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures [or] allow a party to introduce new evidence or advance new arguments that could and should have been presented to the district court prior to the judgment." Dimarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001). When filing a motion for reconsideration, Local Rule 230(k) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."


Plaintiff's Argument

Plaintiff's new counsel, Joseph Low ("Low"), argues that the State Court Order was not erroneous because newly discovered evidence shows that the complaint was received and rejected by the Clerk's Office on January 28, 2008. See Judge Ronald W. Hansen Declaration ("Judge Hansen Decl.") ¶¶2,3; Brenda D. Reyna Declaration. ("Reyna Decl.") ¶¶2, 13,14,16,30. Low contends that the Clerk's Office, and not OPC, rejected the complaint for failure to include separate transmission cover sheets. See Judge Hansen Decl. ¶3. Plaintiff argues that the Clerk's office erroneously rejected the complaint when it enforced a rule that required separate cover sheets for the complaint and summons. Plaintiff asserts that a clerk may not reject a complaint for reasons that are not contained in California Rules of Court. Low contends that he exercised reasonable diligence to obtain this evidence prior to the Court's ruling on Defendant's motion for reconsideration, but was unable to do so in the time available due to the reluctance of the court clerk and OPC to cooperate. See Plaintiff's Motion for Reconsideration at page 3; Low May 13, 2010 Declaration ("Low Decl.") ¶¶7,10, 12-13.

Defendant's Argument

Defendant argues that Judge Hansen's and Reyna's respective declarations do not constitute "new evidence" because Plaintiff was aware of the information contained in the declarations prior to the filing of Plaintiff's motion for reconsideration. Defendant asserts that Plaintiff had ample opportunity to obtain these declarations before this motion. In the alternative, Defendant requests additional time to investigate the "new evidence."*fn2


Nunc Pro Tunc Standard Under California law, a court has the power to correct clerical errors or misprisions in its records so that the records will conform to and speak the truth. See 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 69, p. 597. This inherent power is found in Cal. Code of Civil Procedure §473(d), which provides "[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." A nunc pro tunc order should correct clerical errors by placing on the record what was actually decided by the court but was incorrectly recorded. Hamilton v. Laine, 57 Cal. App.4th 885, 891 (1997). The purpose of a nunc pro tunc order is to cause the records to show something done which was actually done, but which by misprision or neglect, was not at the time entered in the record. City of Los Angeles v. Superior Court, 264 Cal. App.2d 766, 771 (1968). A nunc pro ...

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