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1 PILLSBURY WINTHROP SHAW PITTMAN LLP
JOHN R. HEISSE SBN 134964
2 Four Embarcadero Center, 22nd Floor
San Francisco, CA 94111-5998
3 Telephone: 415.983.1000
Facsimile: 415.983.1200
4
ELAINE Y. LEE SBN 293452
5 725 S. Figueroa Street, 36th Floor
Los Angeles, CA 90017-5406
6 Telephone: 213.488.7100
Facsimile: 213.629.1033
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Attorneys for Defendants
8 CLARK CONSTRUCTION GROUP-CA, LP
and CARLOS GONZALEZ
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF RIVERSIDE, PALM SPRINGS BRANCH
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NEAL ELECTRIC CORPORATION, a Case No. PSC1805941
13 California corporation,
CLARK CONSTRUCTION GROUP-
14 Plaintiff, CA, LP’S EX PARTE APPLICATION
TO AMEND JUDGMENT
15 vs.
NOTICE & MEMORANDUM OF
16 CLARK CONSTRUCTION GROUP-CA, LP, a POINTS AND AUTHORITIES IN
California limited partnership; TRAVELER’S SUPPORT THEREOF; FILED
17 CASUALTY & SURETY COMPANY OF CONCURRENTLY WITH LEE DECL.
AMERICA, a Connecticut corporation; AND [PROPOSED] AMENDED
18 ZURICH AMERICAN INSURANCE JUDGMENT
COMPANY, an Illinois corporation; FEDERAL
19 INSURANCE COMPANY, a New Jersey
corporation; FIDELITY AND DEPOSIT Date: March 18, 2022
20 COMPANY OF MARYLAND, a Maryland Time: 8:30 a.m.
corporation; the COUNTY OF RIVERSIDE, a Dept: PS2
21 public entity; CARLOS GONZALEZ, an
individual; and DOES 1 through 100, inclusive,
22 Case Filed: October 1, 2018
Defendants.
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that on March 18, 2022 at 8:30 a.m., or as soon thereafter as the
3 matter may be heard in Department PS2 of the above-entitled court, located at 3255 E. Tahquitz
4 Canyon Way, Palm Springs, California, Defendant Clark Construction Group-CA, LP (“Clark”) will
5 and hereby does apply to the Court ex parte to enter an amended judgment in the above-entitled
6 action. The Court entered judgment on March 2, 2022, confirming “in all respects” the Final Award
7 issued by the Arbitration Panel in American Arbitration Association Case No. 01-18-0004-1066,
8 Clark Construction Group-CA, LP v. Neal Electric Corporation, dated August 11, 2021, a copy of
9 which was attached as an exhibit to the judgment. The judgment, which was entered in the form of
10 the proposed judgment submitted by Clark, inadvertently omitted the costs and expenses awarded by
11 the Arbitration Panel as set forth in the Final Award. Because of the omission of the costs and
12 expenses awarded, the prejudgment interest calculation was also incorrect. Clark requests the Court
13 enter an amended judgment that conforms to the Final Award and set aside the prior entered
14 judgment.
15 Clark’s application is based on this Notice, the Memorandum of Points and Authorities
16 attached hereto, the Declaration of Elaine Y. Lee filed concurrently herewith, and the [Proposed]
17 Amended Judgment filed concurrently herewith, and such additional argument as may be presented
18 in connection with this application.
19 Notice was given pursuant to California Rules of Court Rule 3.1204. Declaration of Elaine
20 Y. Lee, filed concurrently herewith, ¶ 10.
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22 Dated: March 16, 2022 PILLSBURY WINTHROP SHAW PITTMAN
LLP
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24
25 By: JOHN R. HEISSE
ELAINE Y. LEE
26 Attorneys for Defendants CLARK
CONSTRUCTION GROUP-CA, LP
27 and CARLOS GONZALEZ
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 This case concerns disputes between Plaintiff Neal Electric Corporation (“Neal”) and
3 Defendants Clark Construction Group-CA, LP (“Clark”) and Carlos Gonzalez. Pursuant to the terms
4 of the parties’ contract, the parties were ordered to arbitrate their disputes. Declaration of Elaine Y.
5 Lee, filed concurrently herewith (“Lee Decl.”), ¶ 3. Following arbitration, an Arbitration Panel
6 issued a Final Award in American Arbitration Association Case No. 01-18-0004-1066, Clark
7 Construction Group-CA, LP v. Neal Electric Corporation, dated August 11, 2021 (the “Final
8 Award”). Id. at ¶ 4. Subsequently, Neal filed a Petition to Vacate Arbitration Award and Clark filed
9 a Petition to Confirm Arbitration Award. Id. at ¶ 5. On February 23, 2022, the Court denied Neal’s
10 Petition to Vacate Arbitration Award and granted Clark’s Petition to Confirm Arbitration Award. Id.
11 at ¶ 6 and Exhibit A (Minute Order).
12 Thereafter, Clark submitted a [Proposed] Judgment on Arbitration Award, setting forth terms
13 of the Final Award and attaching as an exhibit a copy of the Final Award. Id. at ¶ 7. On March 2,
14 2022, the Court executed the [Proposed] Judgment on Arbitration Award as submitted by Clark,
15 entering the Judgment on Arbitration Award, confirming the Final Award “in all respects.” Id. at ¶ 8
16 and Exhibit B (Judgment on Arbitration Award).
17 In its calculation of the total judgment to be entered, however, the [Proposed] Judgment
18 submitted by Clark—and subsequently the Judgment on Arbitration Award entered thereon—
19 inadvertently omitted costs and expenses awarded by the Arbitration Panel in the Final Award. Page
20 77 of the Final Award (attached as Exhibit 1 to the Judgment on Arbitration Award (Ex. B to Lee
21 Decl.)) states that Clark shall recover the following from Neal:
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
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10 In addition to the $9,295.159.00 in damages, the Arbitration Panel had also awarded Clark
11 $374,650.96 in costs and expenses for a total amount awarded of $9,669,809.96. Because the costs
12 and expenses awarded were omitted, the [Proposed] Judgment and Judgment on Arbitration Award
13 also miscalculated the total amount of prejudgment interest due. Prejudgment interest was
14 calculated on the $9,295,159.00 in damages, rather than the correct total of $9,669,809.96.
15 Clark therefore requests that the Court enter an amended judgment that conforms to the Final
16 Award. Code of Civil Procedure § 473(d) provides: “The court may, upon motion of the injured
17 party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to
18 conform to the judgment or order directed, and may, on motion of either party after notice to the
19 other party, set aside any void judgment or order.” (emphasis added). See also Bastajian v. Brown
20 (1941) 19 Cal.2d 209, 214-15; Theriot v. Superior Court (1963) 221 Cal.App.2d 174, 179 (“The
21 general rule is that a court may, at any time, and with or without notice, or on its own motion, correct
22 a judgment or order by a nunc pro tunc order so as to make the judgment or order conform to the
23 judicial decision actually made.”).
24 Here, in granting Clark’s Petition to Confirm Arbitration Award, the Court stated, without
25 qualification or exclusion: “The Petition to Confirm Arbitration Award is granted and said award
26 shall be entered as the Judgment of the Court.” Lee Decl. at ¶ 6 and Exhibit A. The Court entered
27 judgment confirming the Final Award “in all respects,” attaching a complete copy of the Final
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
1 Award. Id. at ¶ 8 and Exhibit B. As such, the intent of the Court is to enter judgment on the entirety
2 of the Final Award. The judgment should be amended to conform to the Final Award by including
3 costs and expenses awarded by the Arbitration Panel and calculating prejudgment interest based on
4 the actual total amount awarded. No other changes will be made to the judgment. See id. at ¶ 9 and
5 Exhibit C (redline of [Proposed] Amended Judgment on Arbitration Award, filed concurrently
6 herewith).
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Dated: March 16, 2022 PILLSBURY WINTHROP SHAW PITTMAN
9 LLP
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By: JOHN R. HEISSE
12 ELAINE Y. LEE
Attorneys for Defendants CLARK
13 CONSTRUCTION GROUP-CA, LP
and CARLOS GONZALEZ
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
1 PROOF OF SERVICE
2 I am employed in the City of Los Angeles, State of California, in the office of a member of
3 the bar of this Court, at whose direction the service was made. I am over the age of eighteen years,
4 and not a party to the within action. My business address is Pillsbury Winthrop Shaw Pittman LLP,
5 725 South Figueroa Street, 36th Floor, Los Angeles, CA 90017-5406. On March 16, 2022, I served
6 the document(s) titled:
7 CLARK CONSTRUCTION GROUP-CA, LP’S EX PARTE APPLICATION
TO AMEND JUDGMENT; NOTICE & MEMORANDUM OF POINTS AND
8 AUTHORITIES IN SUPPORT THEREOF
9 DECLARATION OF ELAINE Y. LEE DECLARATION OF ELAINE Y. LEE
IN SUPPORT OF CLARK’S EX PARTE APPLICATION TO AMEND
10 JUDGMENT; and
11 [PROPOSED] AMENDED JUDGMENT ON ARBITRATION AWARD.
12 on the parties in this action as follows:
13 Jeff S. Hood Attorneys for Plaintiff NEAL
Mike Nolan ELECTRIC CORPORATION
14 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
15 12544 High Bluff Drive, Suite 400
San Diego, CA 92130
16 jeff.hood@procopio.com
mike.nolan@procopio.com
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Greg Shaughnessy
18 Law Offices of Gregory R. Shaughnessy
55 Main Street
19 Tiburon, CA 94920
Tel: (415) 435-2409
20 Fax: (415) 435-2459
Cell: (415) 307-7616
21 grs@grs-law.com
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☐ (BY MAIL) I caused each envelope, with postage thereon fully prepaid, to be
23 placed in the United States mail at Los Angeles, CA. I am readily familiar with
the practice of Pillsbury Winthrop Shaw Pittman LLP for collection and
24 processing of correspondence for mailing, said practice being that in the ordinary
course of business, mail is deposited in the United States Postal Service the same
25 day as it is placed for collection.
26 ☒ (BY EMAIL TRANSMISSION) The above-referenced document was
transmitted via electronic transmission to the persons at the electronic-email
27 addresses indicated above.
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
1 I declare under penalty of perjury that the foregoing is true and correct. Executed this 16th
2 day of March, 2022, at Los Angeles, California.
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Martha Cobian
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EX PARTE APPLICATION TO AMEND JUDGMENT
4858-4314-9334
Preview
1 PILLSBURY WINTHROP SHAW PITTMAN LLP JOHN R. HEISSE SBN 134964 2 Four Embarcadero Center, 22nd Floor San Francisco, CA 94111-5998 3 Telephone: 415.983.1000 Facsimile: 415.983.1200 4 ELAINE Y. LEE SBN 293452 5 725 S. Figueroa Street, 36th Floor Los Angeles, CA 90017-5406 6 Telephone: 213.488.7100 Facsimile: 213.629.1033 7 Attorneys for Defendants 8 CLARK CONSTRUCTION GROUP-CA, LP and CARLOS GONZALEZ 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF RIVERSIDE, PALM SPRINGS BRANCH 11 12 NEAL ELECTRIC CORPORATION, a Case No. PSC1805941 13 California corporation, CLARK CONSTRUCTION GROUP- 14 Plaintiff, CA, LP’S EX PARTE APPLICATION TO AMEND JUDGMENT 15 vs. NOTICE & MEMORANDUM OF 16 CLARK CONSTRUCTION GROUP-CA, LP, a POINTS AND AUTHORITIES IN California limited partnership; TRAVELER’S SUPPORT THEREOF; FILED 17 CASUALTY & SURETY COMPANY OF CONCURRENTLY WITH LEE DECL. AMERICA, a Connecticut corporation; AND [PROPOSED] AMENDED 18 ZURICH AMERICAN INSURANCE JUDGMENT COMPANY, an Illinois corporation; FEDERAL 19 INSURANCE COMPANY, a New Jersey corporation; FIDELITY AND DEPOSIT Date: March 18, 2022 20 COMPANY OF MARYLAND, a Maryland Time: 8:30 a.m. corporation; the COUNTY OF RIVERSIDE, a Dept: PS2 21 public entity; CARLOS GONZALEZ, an individual; and DOES 1 through 100, inclusive, 22 Case Filed: October 1, 2018 Defendants. 23 24 25 26 27 28 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on March 18, 2022 at 8:30 a.m., or as soon thereafter as the 3 matter may be heard in Department PS2 of the above-entitled court, located at 3255 E. Tahquitz 4 Canyon Way, Palm Springs, California, Defendant Clark Construction Group-CA, LP (“Clark”) will 5 and hereby does apply to the Court ex parte to enter an amended judgment in the above-entitled 6 action. The Court entered judgment on March 2, 2022, confirming “in all respects” the Final Award 7 issued by the Arbitration Panel in American Arbitration Association Case No. 01-18-0004-1066, 8 Clark Construction Group-CA, LP v. Neal Electric Corporation, dated August 11, 2021, a copy of 9 which was attached as an exhibit to the judgment. The judgment, which was entered in the form of 10 the proposed judgment submitted by Clark, inadvertently omitted the costs and expenses awarded by 11 the Arbitration Panel as set forth in the Final Award. Because of the omission of the costs and 12 expenses awarded, the prejudgment interest calculation was also incorrect. Clark requests the Court 13 enter an amended judgment that conforms to the Final Award and set aside the prior entered 14 judgment. 15 Clark’s application is based on this Notice, the Memorandum of Points and Authorities 16 attached hereto, the Declaration of Elaine Y. Lee filed concurrently herewith, and the [Proposed] 17 Amended Judgment filed concurrently herewith, and such additional argument as may be presented 18 in connection with this application. 19 Notice was given pursuant to California Rules of Court Rule 3.1204. Declaration of Elaine 20 Y. Lee, filed concurrently herewith, ¶ 10. 21 22 Dated: March 16, 2022 PILLSBURY WINTHROP SHAW PITTMAN LLP 23 24 25 By: JOHN R. HEISSE ELAINE Y. LEE 26 Attorneys for Defendants CLARK CONSTRUCTION GROUP-CA, LP 27 and CARLOS GONZALEZ 28 1 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 This case concerns disputes between Plaintiff Neal Electric Corporation (“Neal”) and 3 Defendants Clark Construction Group-CA, LP (“Clark”) and Carlos Gonzalez. Pursuant to the terms 4 of the parties’ contract, the parties were ordered to arbitrate their disputes. Declaration of Elaine Y. 5 Lee, filed concurrently herewith (“Lee Decl.”), ¶ 3. Following arbitration, an Arbitration Panel 6 issued a Final Award in American Arbitration Association Case No. 01-18-0004-1066, Clark 7 Construction Group-CA, LP v. Neal Electric Corporation, dated August 11, 2021 (the “Final 8 Award”). Id. at ¶ 4. Subsequently, Neal filed a Petition to Vacate Arbitration Award and Clark filed 9 a Petition to Confirm Arbitration Award. Id. at ¶ 5. On February 23, 2022, the Court denied Neal’s 10 Petition to Vacate Arbitration Award and granted Clark’s Petition to Confirm Arbitration Award. Id. 11 at ¶ 6 and Exhibit A (Minute Order). 12 Thereafter, Clark submitted a [Proposed] Judgment on Arbitration Award, setting forth terms 13 of the Final Award and attaching as an exhibit a copy of the Final Award. Id. at ¶ 7. On March 2, 14 2022, the Court executed the [Proposed] Judgment on Arbitration Award as submitted by Clark, 15 entering the Judgment on Arbitration Award, confirming the Final Award “in all respects.” Id. at ¶ 8 16 and Exhibit B (Judgment on Arbitration Award). 17 In its calculation of the total judgment to be entered, however, the [Proposed] Judgment 18 submitted by Clark—and subsequently the Judgment on Arbitration Award entered thereon— 19 inadvertently omitted costs and expenses awarded by the Arbitration Panel in the Final Award. Page 20 77 of the Final Award (attached as Exhibit 1 to the Judgment on Arbitration Award (Ex. B to Lee 21 Decl.)) states that Clark shall recover the following from Neal: 22 23 24 25 26 27 28 2 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 2 3 4 5 6 7 8 9 10 In addition to the $9,295.159.00 in damages, the Arbitration Panel had also awarded Clark 11 $374,650.96 in costs and expenses for a total amount awarded of $9,669,809.96. Because the costs 12 and expenses awarded were omitted, the [Proposed] Judgment and Judgment on Arbitration Award 13 also miscalculated the total amount of prejudgment interest due. Prejudgment interest was 14 calculated on the $9,295,159.00 in damages, rather than the correct total of $9,669,809.96. 15 Clark therefore requests that the Court enter an amended judgment that conforms to the Final 16 Award. Code of Civil Procedure § 473(d) provides: “The court may, upon motion of the injured 17 party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to 18 conform to the judgment or order directed, and may, on motion of either party after notice to the 19 other party, set aside any void judgment or order.” (emphasis added). See also Bastajian v. Brown 20 (1941) 19 Cal.2d 209, 214-15; Theriot v. Superior Court (1963) 221 Cal.App.2d 174, 179 (“The 21 general rule is that a court may, at any time, and with or without notice, or on its own motion, correct 22 a judgment or order by a nunc pro tunc order so as to make the judgment or order conform to the 23 judicial decision actually made.”). 24 Here, in granting Clark’s Petition to Confirm Arbitration Award, the Court stated, without 25 qualification or exclusion: “The Petition to Confirm Arbitration Award is granted and said award 26 shall be entered as the Judgment of the Court.” Lee Decl. at ¶ 6 and Exhibit A. The Court entered 27 judgment confirming the Final Award “in all respects,” attaching a complete copy of the Final 28 3 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 Award. Id. at ¶ 8 and Exhibit B. As such, the intent of the Court is to enter judgment on the entirety 2 of the Final Award. The judgment should be amended to conform to the Final Award by including 3 costs and expenses awarded by the Arbitration Panel and calculating prejudgment interest based on 4 the actual total amount awarded. No other changes will be made to the judgment. See id. at ¶ 9 and 5 Exhibit C (redline of [Proposed] Amended Judgment on Arbitration Award, filed concurrently 6 herewith). 7 8 Dated: March 16, 2022 PILLSBURY WINTHROP SHAW PITTMAN 9 LLP 10 11 By: JOHN R. HEISSE 12 ELAINE Y. LEE Attorneys for Defendants CLARK 13 CONSTRUCTION GROUP-CA, LP and CARLOS GONZALEZ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 PROOF OF SERVICE 2 I am employed in the City of Los Angeles, State of California, in the office of a member of 3 the bar of this Court, at whose direction the service was made. I am over the age of eighteen years, 4 and not a party to the within action. My business address is Pillsbury Winthrop Shaw Pittman LLP, 5 725 South Figueroa Street, 36th Floor, Los Angeles, CA 90017-5406. On March 16, 2022, I served 6 the document(s) titled: 7 CLARK CONSTRUCTION GROUP-CA, LP’S EX PARTE APPLICATION TO AMEND JUDGMENT; NOTICE & MEMORANDUM OF POINTS AND 8 AUTHORITIES IN SUPPORT THEREOF 9 DECLARATION OF ELAINE Y. LEE DECLARATION OF ELAINE Y. LEE IN SUPPORT OF CLARK’S EX PARTE APPLICATION TO AMEND 10 JUDGMENT; and 11 [PROPOSED] AMENDED JUDGMENT ON ARBITRATION AWARD. 12 on the parties in this action as follows: 13 Jeff S. Hood Attorneys for Plaintiff NEAL Mike Nolan ELECTRIC CORPORATION 14 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 15 12544 High Bluff Drive, Suite 400 San Diego, CA 92130 16 jeff.hood@procopio.com mike.nolan@procopio.com 17 Greg Shaughnessy 18 Law Offices of Gregory R. Shaughnessy 55 Main Street 19 Tiburon, CA 94920 Tel: (415) 435-2409 20 Fax: (415) 435-2459 Cell: (415) 307-7616 21 grs@grs-law.com 22 ☐ (BY MAIL) I caused each envelope, with postage thereon fully prepaid, to be 23 placed in the United States mail at Los Angeles, CA. I am readily familiar with the practice of Pillsbury Winthrop Shaw Pittman LLP for collection and 24 processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same 25 day as it is placed for collection. 26 ☒ (BY EMAIL TRANSMISSION) The above-referenced document was transmitted via electronic transmission to the persons at the electronic-email 27 addresses indicated above. 28 5 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334 1 I declare under penalty of perjury that the foregoing is true and correct. Executed this 16th 2 day of March, 2022, at Los Angeles, California. 3 4 Martha Cobian 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 EX PARTE APPLICATION TO AMEND JUDGMENT 4858-4314-9334