Whoops: The right way to bring an error to the attention of your judge.

law-300x200Appeals can be a lengthy, difficult, and expensive process. In fact, most civil appeals in the Fourth District Court of Appeals, Division One (San Diego) take about a year from start to finish. If a trial court’s error is the result of a minor oversight or a mathematical error, it might be a better idea to simply direct the Court’s attention to the oversight or error than go through the trouble of an appeal. In our experience, judges have been almost universally open to correcting these kinds of minor oversights or errors at the trial level, particularly if the oversight or error resulted from the judge’s own mistake.

It is very important, therefore, for one to use the proper procedures. There are two procedures that come to mind. The first is a motion pursuant to Code of Civil Procedure 473(d), which is designed to allow for the correction of clerical mistakes. Code of Civil Procedure section 473(d) reads as follows:

“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.”

A motion under Code of Civil Procedure section 473(d) is designed to allow for the correction of clerical mistakes.

This can be the perfect vehicle for when, for instance, there is a mathematical error that needs to be corrected. It can also be used for situations where the judge simply forgets to rule on an issue or on part of an issue. For example, a judge may make a child support order but neglect to make orders considering retroactivity.

Another oft-used vehicle is the motion for reconsideration pursuant to Code of Civil Procedure section 1008. Litigants should be careful about vehicle however, because, technically, it requires new facts or new law. However, the California Supreme Court has made it clear that, even if there are no new laws or new facts in a motion for reconsideration, nothing can stop the Court from, on its own motion, changing its mind:

“We agree that it should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night’ or acts in response to a party’s suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.”

Depending on the circumstances of your case, correcting a trial court’s error by addressing the error directly with the trial court, may be the way to go.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding your case. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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