General Electric Capital Corporation et al v. Ten Forward Dining, Inc. et al

Filing 196

ORDER signed by Judge John A. Mendez on 12/10/2013 GRANTING 180 Motion to Amend the Judgment; CORRECTING the dollar amount stated as the outstanding amount under Paragraph (i)(i) of the 177 Judgment and Foreclosure Decree, page 5, from $672, 693.29 to $467,389.83, plus accruing interest thereon from and after 3/31/2013; CORRECTING the dollar amount stated as the outstanding amount under Paragraph (k)(i) of the 177 Judgment and Foreclosure Decree, page 6, from $467,389.83 to $672,693.29, plus accruing interest thereon from and after 3/31/2013. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GENERAL ELECTRIC CAPITAL
CORPORATION, et al.,

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No.

2:09-cv-03296 JAM-AC

ORDER GRANTING PLAINTIFFS’
MOTION FOR CORRECTION OF FINAL
JUDGMENT

Plaintiffs,
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v.
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TEN FORWARD DINING, INC., et
al.,

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Defendants.

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This matter is before the Court on Plaintiffs General

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Electric Capital Corporation, CEF Funding II, L.L.C., and CEF

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Funding V, LLC’s (“Plaintiffs”) Motion for Correction of Final

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Judgment (Doc. #180). 1

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LLC (“KRP”) opposes the motion (Doc. #189) and Plaintiffs replied

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(Doc. #194).

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granted.

Defendant Kobra Restaurant Properties,

For the following reasons, Plaintiffs’ motion is

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The motions were determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for November 20, 2013.
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I.

BACKGROUND

This action originated when Plaintiffs filed their complaint

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on November 29, 2009, alleging that Defendants Ten Forward

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Dining; Delightful Dining, Inc.; TGIA Restaurants, Inc.; Kobra

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Restaurant Properties, LLC; and Abolghassem Alizadeh defaulted on

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or breached seven written loan contracts made with Plaintiffs

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(Doc. #1).

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real and physical property.

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litigation, Plaintiffs have either obtained summary judgment

The complaint alleged that the loans were secured by
Through the course of the

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against each named entity or voluntarily dismissed outstanding

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claims.

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for entry of judgment and appointment of a receiver (Doc. #169).

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On July 31, 2013, the Court issued its judgment and foreclosure

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decree.

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On July 5, 2013, the Court granted Plaintiffs’ motions

Decree, Doc. #177.

As set forth in the Decree, a declaration was entered that

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(1) “the outstanding amount due is $672,693.29, plus accruing

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interest thereon from and after March 31, 2013, as provided in

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the 11726 Kobra Loan Documents (the ‘11726 Kobra Indebted

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Amount’)” and (2) “the outstanding amount due is $467,389.83,

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plus accruing interest thereon from and after March 31, 2013, as

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provided in the 11794 Kobra Loan Documents (the ‘11794 Kobra

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Indebted Amount’ and collectively with the 11726 Kobra Indebted

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Amount, the ‘Kobra Indebted Amount’).”

Decree at 5-6.

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II.

OPINION

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A.

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Pursuant to Federal Rule of Civil Procedure 60(a) (“Rule

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Legal Standard

60(a)”), “The court may correct a clerical mistake or a mistake
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arising from oversight or omission whenever one is found in a

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judgment, order, or other part of the record.”

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60(a).

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oversight and omission, which are “blunders in execution.”

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Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir. 1987).

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The error can be corrected whether it is made by a clerk or by

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the judge.

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Sealift Pac., 650 F.2d 1072, 1074 (9th Cir. 1981) (“Rule 60(a)

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allows correction of clerical mistakes, even those not committed

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Fed. R. Civ. P.

This limits the use of Rule 60(a) to correct errors in

Id. at 1577; see also Jones & Guerrero Co., Inc. v.

by the clerk.”)

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B.

Discussion

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Plaintiffs argue that the actual dollar amounts of the

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outstanding balances are correct, but Plaintiffs erred by

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reversing the outstanding balances of the two Kobra Loans.

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opposes the motion to correct the judgment because it claims that

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the loan balances are inflated and argues that ruling on this

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motion should be deferred until Plaintiffs provide a complete

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accounting so the loan balances/judgment amount can be verified.

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Opp. at 8.

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KPR

Under Rule 60(a), the Court may not make substantive changes

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to the final judgment.

Blanton v. Anzalone, 813 F.2d 1574, 1577

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(9th Cir. 1987) (noting that mistakes that cannot be corrected

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pursuant to Rule 60(a) “consist of instances where the court

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changes its mind, either because it made a legal or factual

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mistake in making its original determination, or because on

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second thought it has decided to exercise its discretion in a

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manner different from the way it was exercised in the original

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determination.”) (emphasis in original) (citation omitted).
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Here, KPR’s argument is that there is a factual mistake in

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the judgment because Plaintiffs have incorrectly calculated the

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loan balances.

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alters the judgment substantively, is outside of the Court’s

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power under Rule 60(a).

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relief KPR seeks.

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recalculate the outstanding loan amounts nor seek to change the

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Decree substantively.

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opportunity in its opposition to Plaintiffs’ Motion for Final

However, correcting a factual mistake, which

Therefore, the Court cannot provide the

Contrastingly, Plaintiffs neither seek to

Moreover, as Plaintiffs argue, KPR had an

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Judgment to contest the entry of the Decree and the calculation

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of the 11726 Kobra Indebted Amount and the 11794 Kobra Indebted

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Amount.

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Judgment KPR, Doc. #160.

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Plaintiffs’ arguments that Rule 60(a) applies and that the

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outstanding balances for the two loans are transposed.

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See KPR’s Opposition to Plaintiffs’ Motion for Final
Finally, KPR has failed to oppose

Accordingly, the Court finds that it has the authority

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under Rule 60(a) to correct the final judgment.

Because the

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Court has decided this issue on the merits, the Court need not

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address Plaintiffs’ argument that KPR’s opposition is time

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barred under the Local Rules.

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III. ORDER

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Plaintiffs’ motion for correction of final judgment is
GRANTED.

The Decree shall be corrected as follows:

(a) the dollar amount stated as the outstanding amount under

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Paragraph (i)(i) of the Decree on page 5 is corrected from

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$672,693.29 to $467,389.83, plus accruing interest thereon from

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and after March 31, 2013, as provided in the 11726 Kobra Loan
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Documents; and
(b) the dollar amount stated as the outstanding amount under

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Paragraph (k)(i) of the Decree on page 6 is corrected from

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$467,389.83 to $672,693.29, plus accruing interest thereon from

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and after March 31, 2013, as provided in the 11794 Kobra Loan

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Documents.

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IT IS SO ORDERED.
Dated: December 10, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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