Filed 4/29/16 Estate of Watson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


Estate of DENNIS I. WATSON, Deceased.

MARY S. WATSON,                                                                     F071927, F072303

         Plaintiff and Respondent,                                               (Super. Ct. No. 444557)

                   v.
                                                                                         OPINION
CYNTHIA D. WATSON,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
         Coleman & Horowitt and Eliot S. Nahigian for Defendant and Appellant.
         Baker Manock & Jensen and Jeffrey A. Jaech for Plaintiff and Respondent.
                                                        -ooOoo-
         In this probate proceeding, appellant appeals from a nunc pro tunc order correcting
an alleged clerical error in the judgment of final distribution entered in 1992. We
conclude the error was not a clerical error that the trial court could correct at any time by
a nunc pro tunc order. Accordingly, we reverse the order.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In 1991, Mary Watson, in propria persona, petitioned for probate of the will of her
deceased husband, Dennis Watson. She was appointed executor of his will. With the
help of a paralegal, she later petitioned for final distribution of the estate and submitted a
proposed judgment of final distribution. The petition listed the heirs as Mary,1
decedent’s spouse; Cynthia D. Knott (also known as Cynthia D. Watson), decedent’s
daughter from a previous marriage; Martin R. Claborn and Kimberly D. Garrett (also
known as Kimberly Claborn Miller), decedent’s stepchildren (Mary’s children). The
petition requested that decedent’s one-half community property interest in the household
furnishings and personal property be distributed to Mary as her sole and separate
property, and the residue of decedent’s estate (which included three parcels of real
property) be distributed to Mary in trust, on the terms set out in provisions Sixth,
Seventh, and Eighth of the will. Those provisions of the will, which were attached to the
petition for final distribution, provided that the residue of the estate was to be held in
trust, with income to Mary for life; after her death, the trust estate would be distributed in
equal shares to each of decedent’s children then living and each group of issue of a
deceased child. In August 1992, the probate court granted Mary’s petition and entered
the judgment of final distribution as submitted by Mary.
       In May 2014, Mary filed a petition to correct a clerical error in the judgment and
to amend the judgment nunc pro tunc. Her petition contended provision Second of
decedent’s will was inadvertently omitted from the judgment of final distribution.
Provision Second of the will contained a definition of the term “children,” which defined
the term to include stepchildren. The petition to correct clerical error alleged the
paralegal who prepared the petition for final distribution and the judgment of final


1      We refer to the parties by their first names for clarity and convenience, because some of
them share a last name or have multiple last names. No disrespect is intended.


                                               2.
distribution on Mary’s behalf neglected to include this definition of “children” in both
documents. Mary assumed the remaindermen of the testamentary trust were Cynthia,
Martin and Kimberly, until April 2014, when she consulted an estate planning attorney
and was advised the language of the judgment made Cynthia the sole remainderman of
the trust.
       Mary alleged the judgment did not conform to the decedent’s will and the error in
the language of the judgment was apparent from the face of the judgment roll and should
be corrected. Cynthia opposed the petition, contending there was no error in the
judgment, or if there was an error, it was not a clerical error that could be corrected nunc
pro tunc. The probate court granted Mary’s petition to correct clerical error and amended
the judgment of final distribution nunc pro tunc to add a definition of the term “children”
consistent with the terms of provision Second of the will. Cynthia appeals.2
                                         DISCUSSION
I.     Standard of Review
       Under Code of Civil Procedure section 473, subdivision (d),3 “[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.”
Relief under section 473 “is addressed to the sound discretion of the trial court and the
trial court’s order will not be disturbed absent a showing of clear abuse of discretion.”
(Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.) “The abuse of
discretion standard is not a unified standard; the deference it calls for varies according to
the aspect of a trial court’s ruling under review. The trial court’s findings of fact are


2       Cynthia filed notices of appeal from both the April 9, 2015, order after hearing and the
April 9, 2015, order correcting clerical error and amending judgment nunc pro tunc. The appeals
have been consolidated.
3       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.


                                                3.
reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and capricious.”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.) When a trial court’s
order was based on a misinterpretation of applicable law, an abuse of discretion is
established. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294, fns. omitted.)
II.    Nunc Pro Tunc Order
       “‘The rule is well settled in this state that every court of record has the inherent
power to correct its records so that they shall conform to the facts and speak the truth, and
likewise correct any error or defect occurring in a record through acts of omission or
commission of the clerk in entering of record the judgments or orders of the court, and
such correction may be made at any time by the court on its own motion, ... [Citations.]
[¶] It is equally well established that the court in the exercise of this power is not
authorized to do more than to make its records conform to the actual facts, and cannot,
under the form of an amendment of its records, correct a judicial error, or make of record
an order or judgment that was never, in fact, given. ... [Citations.]’ [Citation.] [¶] It is
not the function of a nunc pro tunc order ‘to make an order now for then, but to enter now
for then an order previously made.’” (Siegal v. Superior Court (1968) 68 Cal.2d 97,
101.) “‘The question presented to the court on a hearing of a motion for a nunc pro tunc
order is: What order was in fact made at the time by the trial judge?’” (Estate of
Eckstrom (1960) 54 Cal.2d 540, 544 (Eckstrom).)
III.   Correction of Clerical Error
       “‘The function of a nunc pro tunc order is merely to correct the record of the
judgment and not to alter the judgment actually rendered.’” (Eckstrom, supra, 54 Cal.2d
at p. 544.) The trial court cannot “change an order which has become final even though
made in error, if in fact the order made was that intended to be made.” (Ibid.) Thus, we
must determine what judgment was rendered by the trial court originally and whether the
judgment entered failed to properly reflect that judgment through clerical error.

                                              4.
       The order originally made by the trial court “is presumed to be that intended in the
absence of contrary evidence [citation], and the fact of error alone cannot rebut that
presumption.” (Eckstrom, supra, 54 Cal.2d at p. 548.) Thus, in order to overcome the
presumption and enter an order correcting a clerical error, there must be evidence that the
order as entered was not the order the trial court judge intended at the time to make.
       In this case, there was no evidence the judge intended to make any order other
than the one originally entered. In past cases, evidence of the judge’s intent has taken the
form of the recollection or testimony of the judge who made the order (Estate of Doane
(1964) 62 Cal.2d 68, 70 (Doane); Estate of Remick (1946) 75 Cal.App.2d 24, 29
(Remick); Carpenter v. Pacific Mutual Life Ins. Co. (1939) 14 Cal.2d 704, 709–710), the
judge’s handwritten notes (In re Roberts (1962) 200 Cal.App.2d 95, 98; Carpenter,
supra, at p. 709), the clerk’s minutes (Estate of Harris (1962) 200 Cal.App.2d 578, 587–
588), the court reporter’s transcript or affidavit (Nathanson v. Murphy (1957) 147
Cal.App.2d 462, 468; Carpenter, supra, at p. 710; Kaufman v. Shain (1896) 111 Cal. 16,
23–24), or the testimony of attorneys present when the decision was rendered
(Nathanson, supra, at pp. 467–468). Here, there was no evidence of any discrepancy
between the judgment entered and the judgment the judge rendered or intended to render.
       The only evidence presented by Mary in support of her petition to correct clerical
error was evidence that the paralegal who drafted the petition for final distribution of the
estate and the proposed judgment of final distribution on Mary’s behalf mistakenly
omitted certain provisions of the will from those documents. Evidence of the paralegal’s
error is not evidence of the judge’s intent. An error by a party’s attorney or the attorney’s
staff in preparing a judgment may be a correctable clerical error, when it causes the
formal written judgment to not reflect the judgment actually rendered by the court. (See
Estate of Goldberg (1938) 10 Cal.2d 709, 710–711, 717 (Goldberg) [clerical error where
the minute order granted the decree of distribution “‘in accordance with terms of the
will’” and required attorney to prepare a “‘proper decree,’” but order prepared omitted

                                             5.
name of one heir]; Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 47 [clerical error in
judgment of dismissal when trial court sustained demurrer of all the defendants without
leave to amend, but attorney-prepared judgment dismissed action against city only, and
failed to include the individual defendants]; Russell v. Superior Court (1967) 252
Cal.App.2d 1, 6, 8 [clerical error where parties stipulated to review of alimony order
upon entry of a final decree, and parties and trial court intended trial court to reserve
power to modify alimony, but attorney-prepared final decree of divorce seemed to make
review merely permissive]; Cunningham v. Frymire (1960) 180 Cal.App.2d 891, 893 [in
partition action, where the parties litigated concerning four pieces of real property, trial
court properly corrected omission of legal description of one property from findings and
conclusions and interlocutory decree prepared by the plaintiff’s attorney].)
       However, “[i]f the court misconstrued the evidence before it, or misapplied the
law applicable to the facts disclosed by the evidence, or was even misled by counsel, such
an error was in no sense a clerical error which could thereafter be corrected by the court
upon its own motion or in any proceeding except on motion for a new trial.” (Lankton v.
Superior Court (1936) 5 Cal.2d 694, 696, italics added.) Here, the probate court did not
render a judgment separate from or prior to the preparation of the written judgment of
final distribution. The paralegal prepared the proposed judgment and Mary submitted it
and requested that it be entered. The evidence demonstrates the probate court judge
entered exactly the judgment he was asked to enter. Both the petition and the judgment
contained the same provisions. There was no evidence the judge intended to enter a
judgment that included the omitted definitions despite Mary’s failure to request such a
judgment.
       Our Supreme Court has rejected an argument that a judgment may be corrected on
the ground it was not the judgment the trial court ought to have made. (Eckstrom, supra,
54 Cal.2d at pp. 545–546.) “If this theory were carried to its logical and ultimate
conclusion it would give to a motion made pursuant to section 473 of the Code of Civil

                                              6.
Procedure the efficacy of a motion for new trial or an appeal long after the time for
making such a motion or filing an appeal had expired. If not carried to that extreme it
would, nevertheless, permit the court in each instance to determine that a particular
judicial error, although resulting in an order or judgment the court intended to make,
might be presumed to be a clerical misprision in order that the court could do what should
have been done on motion for a new trial or an appeal. [Citation.] Neither of these
results lie within the purview of section 473 nor of any inherent power of the court to
correct its own error.” (Id. at pp. 546–547.) It follows that “it is not proper to amend an
order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to
show what the court might or should have done as distinguished from what it actually
did. An order made nunc pro tunc should correct clerical error by placing on the record
what was actually decided by the court but was incorrectly recorded. It may not be used
as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order
to enter a new one.” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891 (Hamilton).)
       Unlike Goldberg, the probate court in this case did not render a broad order to
distribute the assets of the estate pursuant to the terms of the will, while the judgment
thereafter prepared by counsel and entered by the court overlooked some of the terms of
the will. In Goldberg, the decedent left a piece of real property to his daughter, Emma, in
trust for his son, Fritz. (Goldberg, supra, 10 Cal.2d 710.) The will provided that, if Fritz
died leaving issue, the property would vest in his issue; if he died without wife or issue, it
would vest in the decedent’s four children, listed by name. (Id. at p. 710.) The petition
for final distribution of the estate attached a copy of the will and requested that the
residue of the estate “‘be distributed to those entitled thereto.’” (Ibid.) The probate
court’s minute order stated: “‘Decree of distribution granted in accordance with terms of
the will, and the Court directs that the proper decree be prepared and filed herein.’” (Id.
at p. 711.)



                                              7.
       The decree of final distribution actually entered in the decedent’s probate
proceeding omitted Fritz’s name from the list of children in whom the property would
vest if he died leaving no wife or issue. Thirty-five years later, on Fritz’s death, when the
only surviving child of the decedent sought distribution of the trust property to himself,
the probate court made a nunc pro tunc order correcting a clerical error in the decree of
distribution to conform to the provisions of the will by adding Fritz to the list of the
decedent’s children in whom the property would vest if Fritz died without wife or issue.
(Goldberg, supra, 10 Cal.2d at p. 711.)
       The appellate court determined the probate court properly corrected a clerical error
in the original decree of distribution. Decedent’s will directed that the property be
divided among his four children. (Goldberg, supra, 10 Cal.2d at p. 714.) The petition for
distribution asked that decedent’s property be distributed to those entitled to it. The
decree of distribution was granted “‘in accordance with the terms of the will’” and
directed preparation of a “‘proper decree.’” (Ibid.) There was no contrary evidence
indicating the original probate court intended to make an order not in conformity with the
will. Although the error was not made by the clerk, the court concluded it was properly
determined to be a clerical error that could be corrected by the probate court at any time,
even thirty-five years later. (Id. at pp. 714–717.)
       Mary argues that, as in Goldberg, the probate court here ordered distribution as
directed in the will. The record is to the contrary. The petition for final distribution
asked that the residue of the estate be distributed to Mary in trust “upon the terms and
provisions of Paragraphs SIXTH, SEVENTH and EIGHTH of the Will, a copy of which
paragraphs is attached hereto.” The attachment contained only provisions Sixth, Seventh,
and Eighth of the will. The minute order was on a form with boxes to check. It simply
ordered that the petition for final distribution be granted. The judgment of final
distribution, which the probate judge signed, ordered that the residue of decedent’s estate
be distributed to Mary “to be held, administered and distributed in accordance with the

                                              8.
provisions of paragraphs SIXTH, SEVENTH and EIGHTH of decedent’s Will, as
follows,” thereafter quoting in full those provisions.
       Thus, the probate court’s judgment did not, as did the decree in Goldberg, broadly
order that the residue of the estate be distributed pursuant to the provisions of the will.
Rather, it specifically ordered that the residue be “held, administered and distributed in
accordance with” the terms of provisions Sixth, Seventh, and Eighth of the will only. It
identified and quoted only those provisions. The judgment was consistent with the
petition for final distribution, which asked that the residue be distributed pursuant to
provisions Sixth, Seventh, and Eighth of the will. The probate court granted the petition.
There was no evidence the probate court considered doing or intended to do anything
other than what was requested and what the judgment of final distribution indicates it did:
order distribution of the residue of the estate in accordance with the terms of provisions
Sixth, Seventh, and Eighth of the will.
       In Eckstrom, 20 months after entry of the final decree of distribution, the executor
of the will filed a motion to correct an alleged clerical error in the decree. (Eckstrom,
supra, 54 Cal.2d at p. 542.) As requested in the petition for final distribution, the decree
ordered distribution of one-third of the estate, less a certain amount for federal estate
taxes, to a trustee. The executor’s motion requested that the deduction of estate taxes be
eliminated, because the trust had already been credited with payment of those taxes. The
probate court granted the motion, concluding the provision for deduction of taxes was a
clerical error, not reasonably attributable to the exercise of judicial discretion. (Id. at
p. 543.)
       The Supreme Court concluded the probate court could not correct the judgment to
conform to what it ought to have provided. (Eckstrom, supra, 54 Cal.2d at pp. 546–547.)
It recognized trial courts have both an inherent and a statutory right to cause their acts
and proceedings to be correctly set forth in their records, where the records fail to
indicate the order or direction in fact made. “By its very nature, however, the right is

                                               9.
exercisable only for the purpose of ascertaining and reflecting the truth. In most
instances, as in the present case, the truth must be ascertained from the intention of the
trial judge in making his original order.” (Id. at p. 547.) There was no testimony from
the judge who entered the judgment regarding his intent. (Id. at p. 548.) The only
evidence was the petition for, proceedings on, and judgment of final distribution, “all of
which indicate that the trial judge performed an intentional, if erroneous, act. The decree
complied strictly with the prayer of the petition. They both were prepared by the
executor who was also the trustee prejudicially affected. The decree was approved by the
attorneys for the other beneficiaries and by the probate commissioner.” (Id. at p. 547.)
There was no evidence the trial judge intended to make a different decree, other than the
conclusion he ought to have done so. (Ibid.) “The order made is presumed to be that
intended in the absence of contrary evidence [citation], and the fact of error alone cannot
rebut that presumption.” (Id. at p. 548.) Accordingly, the court concluded the claimed
error was judicial in nature, and was improperly corrected by the trial court. (Ibid.)
       As in Eckstrom, in this case there was no testimony from the judge who entered
the judgment of final distribution regarding his intention when he entered the judgment.
There was no objection to the terms of the proposed judgment by any party. The
documents submitted to the court—the petition for final distribution and the judgment of
final distribution—contained the same provisions and did not indicate any intention to
have some other judgment entered. There was no evidence the original probate judge
intended to enter any judgment other than the one actually requested and entered. The
court hearing the motion to correct clerical error was not free to disregard the original
judgment or the intention of the judge who entered it, or to enter the judgment it believed
ought to have been entered in the guise of correcting a clerical error.
       When there is no evidence the judge who entered the original judgment intended
to enter a different judgment, a nunc pro tunc order correcting alleged clerical error is
improper. In Estate of Steiner (1966) 240 Cal.App.2d 78 (Steiner), the decree of

                                             10.
distribution ordered that the residue of the decedent’s estate be distributed to Carl Steiner
for his life and, on his death, to the decedent’s mother, sisters and brothers. (Id. at
pp. 79–80.) Twenty-seven months later, the executor moved for and obtained a nunc pro
tunc order for distribution of the residue to Carl Steiner, “‘together with all the rents,
issues, benefits and income, to do with as he sees fit,’” and upon his death to the same
specified persons, “‘provided they are living at the time of the death of Carl Steiner.’”
(Id. at p. 80.) The court noted the provisions, as corrected, appeared in the will and in the
petition for final distribution. (Id. at pp. 82–83.) There was no explanation for the
omission of the language from the final decree. The motion to correct the alleged error
attributed its omission to inadvertence, mistake, and clerical error. (Id. at p. 83.)
          The motion was heard by a judge other than the one who entered the original
decree. There was no testimony from the judge who entered the original order. (Steiner,
supra, 240 Cal.App.2d at p. 83.) No evidence was taken, and the ruling was based on the
record. (Ibid.) The original decree of distribution was in accordance with the prayer of
the petition. The court concluded the modification of these provisions substantially
altered the disposition of the residue of the estate, and a nunc pro tunc order could not be
used for this purpose. (Id. at p. 82.) Further: “It may have been error, but there is
nothing to justify the conclusion that it was an inadvertent slip, not a mistake of
judgment, without which an order correcting the final decree, long since final, may not be
made nunc pro tunc.” (Id. at p. 84.) The court reversed the nunc pro tunc order. (Id. at
p. 85.)
          In Estate of Harris (1962) 200 Cal.App.2d 578 (Harris), the decedent left his
interest in the Harris properties and the Harris securities to his wife, Beebe, until her
death or remarriage, and then to his brothers. (Id. at p. 580.) The petition for a decree of
final distribution alleged that one of the brothers had predeceased decedent, and
requested that the decedent’s entire interest in the Harris properties and Harris securities
pass to the surviving brother, John, subject to Beebe’s life estate. The probate court

                                              11.
granted the petition and ordered the decedent’s interest in the Harris properties and Harris
securities to be distributed to John, subject to Beebe’s life estate. (Id. at p. 582.) After
John’s death, Beebe moved for a nunc pro tunc order correcting clerical mistakes in the
decree of final distribution, allegedly made through the mistake and inadvertence of the
judge who entered it. (Id. at p. 583.) She contended the judge did not intend to distribute
all of the decedent’s interest in the Harris properties and Harris securities to John.
Rather, he intended to distribute to Beebe one-half of the decedent’s interest and a life
estate in the other one-half, and to distribute a one-half interest to John, subject to
Beebe’s life estate. (Ibid.)
       The judge who entered the original judgment granted the motion and entered the
nunc pro tunc judgment, stating that the original order was the result of clerical mistake
and inadvertence, and was not the decision he intended to render. (Harris, supra, 200
Cal.App.2d at p. 584.) The appellate court reversed. The petition for final distribution
alleged that, under the will, because one brother predeceased the decedent, the entire
interest in the Harris properties and the Harris securities passed to John, subject to
Beebe’s life estate; there was no dispute about this interpretation of the will at the time
the petition was heard. (Id. at p. 587.) The decree of final distribution was in accordance
with that interpretation. The judge who entered the original judgment had “‘no distinct
recollection of having read the Will prior to signing the Order for Final Distribution [and]
no recollection of having read the Petition.’” (Ibid.) He “‘intended to sign the Order
which was placed before’” him, but “‘with the intent … that it was a correct recitation of
the matters that should be in there.’” (Id. at pp. 587–588.) He expressed his intent that
the order conformed to his interpretation of the will, but that, after going over the matter,
he believed it did not do so. (Id. at p. 588.) He conceded the judgment originally entered
conformed to what actually happened and reflected the truth of what was done. (Ibid.)
He could not say with finality that an error was made. (Id. at p. 589.)
       The court stated:

                                              12.
              “The question here is whether the judge by reason of clerical error or
       inadvertence failed to make a decree that was in accordance with a decision
       that he intended to render at the time of signing the original decree.
       Statements of the judge at the time of the hearing on the motion for the
       nunc pro tunc order are general statements to the effect that he intended to
       sign a decree that was a correct interpretation of the will, but the statements
       do not indicate that at the time of signing the original decree he had in mind
       a specific interpretation of the will which he was then intending to embody
       or record in the decree. Since the statements are to the effect that the judge
       had not read the will or the petition for final distribution prior to hearing the
       petition or prior to signing the original decree, it would seem that at the
       time of signing the decree he did not have in mind an interpretation of the
       will which he failed to embody or record in the decree.

              “There is nothing in a minute order, or on the face of the decree, or
       in any phonographic report of any of the proceedings, which indicates there
       was an existing intention, at the time of making the decree, of rendering a
       decision wherein the interpretation of the will or the distribution of the
       estate was different from the decree as signed.” (Harris, supra, 200
       Cal.App.2d at pp. 590–591.)
       Although the judge had relied on counsel to prepare a correct decree and had
signed the original decree without examining it or having any particular interpretation in
mind, the decree was not a nullity, but the decree of the court. (Harris, supra, 200
Cal.App.2d at p. 591.) Noting that a judge who entered an order could not set it aside
simply because he changed his mind, the court found the showing of clerical error
insufficient to amend the decree nunc pro tunc and reversed the nunc pro tunc order. (Id.
at p. 592.)
       Here, the executor of the will petitioned for final distribution of the estate and
presented the probate court with a proposed judgment of final distribution. The petition
and the proposed judgment contained the same provisions for distribution of the estate.
The judge signed the proposed judgment without change. There was no testimony from
the original judge at the hearing of the motion to correct clerical error. There was
nothing in the record, and no evidence presented, to indicate the judge intended to enter




                                             13.
any judgment other than the one presented to him, which the executor requested he sign
and to which no one objected.
       In the order after hearing, the probate judge who heard the motion to correct
clerical error stated: “In this case, there is no evidence the issuing court intended to omit
the definition of ‘children’ in the Judgment of Final Distribution. The Will, the Petition
for Probate and the Petition for Final Distribution all contained provisions setting forth
the legatees. In particular, both the Petition for Probate as well as the Petition for Final
Distribution specifically name the step children as beneficiaries under the Will.” In
considering a motion to correct a clerical error nunc pro tunc, however, we must begin
with a presumption the order entered was the order intended by the judge who entered it.
(Eckstrom, supra, 54 Cal.2d at p. 548.) Then, we look for any evidence of a contrary
intent on the part of that judge. There is no evidence in the record that the original judge
intended to do anything other than enter the judgment submitted by the executor.
       A trial court cannot alter an original judgment to enter a new judgment, based on
what the trial court now believes should have been entered, in the guise of correcting a
clerical error. “‘[A]mendment of the record of a judgment, and a nunc pro tunc entry of
it, may not be made to correct a judicial error involving the merits, or to enlarge the
judgment as originally rendered, or to supply a judicial omission or an affirmative action
which should have been, but was not, taken by the court, or to show what the court might
or should have decided, or intended to decide, as distinguished from what it actually did
decide, even if such failure is apparently merely an oversight. [¶] The power of the court
in this regard is to make the journal entry speak the truth by correcting clerical errors and
omissions, and it does not extend beyond such function.’” (Hamilton, supra, 57
Cal.App.4th at pp. 890–891, italics omitted.) The evidence relied on by the probate judge
that heard the motion to correct clerical error was, at best, evidence of what the judgment
ought to have been, not evidence of what the original judgment was or what the original
judge intended it to be. The order correcting clerical error adds language to the judgment

                                             14.
of final distribution that was not included in the original judgment as rendered, without
any evidence that the trial court intended to make it part of the original judgment, but
inadvertently omitted it.
       Doane and Remick, which were cited in the order after hearing, are
distinguishable. In Doane, the beneficiaries of a testamentary trust moved to correct the
order for preliminary distribution of the decedent’s estate, asserting the order did not
follow the provisions of the will. (Doane, supra, 62 Cal.2d at p. 69.) At the hearing of
the motion, the judge who entered the original order testified that he intended to direct
distribution in accordance with the terms of the will and the order entered did not express
the decision he intended to make. (Id. at p. 70.) The Supreme Court concluded that,
because the judge testified he intended to follow the will and the order did not do so, the
error was clerical, rather than judicial. (Id. at p. 71.)4
       In Remick, the decedent’s will left certain property to her husband, for his life, and
upon his death, the property “‘or the value thereof’” was to be divided among her
brothers. (Remick, supra, 75 Cal.App.2d at p. 26.) The petition for distribution of the
decedent’s estate reflected that provision. The decree of distribution made a finding in
the same language, but in the order for distribution, provided that the property “‘or the
proceeds thereof’” was to be divided among the brothers. (Ibid.) The trial court granted
the brothers’ motion to correct that language of the decree nunc pro tunc, on the ground
the error was a clerical error. (Id. at p. 25.) The original trial court’s minute order
granted the petition for distribution “‘as prayed for.’” (Id. at p. 29.) This was evidence
of the decree the trial court intended to make; it intended to order distribution of the


4       The dissent argued the error was judicial. The original order “was precisely the order the
probate judge ordered entered. No one misconstrued the judge’s order or intent. It was simply a
case of the trial judge entering an order that followed the precise terms of the petition without
comparing it with the terms of the will. The court simply failed to interpret correctly the facts.
Such an error is judicial. The error of the judge cannot be corrected in such a fashion.” (Doane,
supra, 62 Cal.2d at p. 73.)


                                               15.
property “‘or the value thereof,’” as requested in the petition. Further, the decree itself
used the term “‘or the value thereof’” in its findings. (Ibid.) The court upheld the
amendment of the decree, stating: “It therefore appears without question that the
language used in the distributive portion of the decree did not conform to the will, to the
prayer of the petition, to the minute order, or to the findings, all of which indicates that
the use of the words ‘or the proceeds thereof’ instead of ‘or the value thereof’ was
inadvertent and constituted a clerical error, as the court in its order amending states that it
did.” (Ibid.)
       Here, there was no testimony of the original judge as to his intent in entering the
judgment of distribution. There was no minute order or conflicting language in the
judgment of distribution itself that indicated an intent contrary to that expressed in the
distributive portion of the judgment of distribution. There was no evidence from which
the trial court could conclude the judgment of distribution as written did not reflect the
judgment the original judge actually rendered or intended to render. Consequently,
substantial evidence does not support the facts on which the trial court’s order correcting
clerical error was based, and the trial court abused its discretion by entering that order.
IV.    Testator’s Intent
       Mary argues the correction of the judgment of distribution was proper because it
effectuated the testator’s intent and the original judgment did not. When a request is
made to correct a clerical error in a judgment, the issue is whether the judgment as
entered reflected the judgment actually rendered by the trial court, not whether the
judgment effectuated the testator’s intent.

               “A decree of distribution is a judicial construction of the will arrived
       at by the court ascertaining the intent of the testator. [Citations.] Once
       final, the decree supersedes the will [citations] and becomes the conclusive
       determination of the validity, meaning and effect of the will, the trusts
       created therein and the rights of all parties thereunder. [Citations.]




                                              16.
               “If the decree erroneously interprets the intention of the testator it
       must be attacked by appeal and not collaterally.… It is well settled that
       ‘where the decree of distribution is contrary to the provisions in the will,
       the decree controls and prevails over the terms of the will with respect to
       the distribution of the property.’” (Estate of Callnon (1969) 70 Cal.2d 150,
       156–157.)
       To amend the judgment twenty-two years after it was entered in an attempt to
conform it to the testator’s intent would be to change the substance of the judgment based
on what the trial court hearing the matter now believes the trial court ought to have done
originally. This it cannot do through a nunc pro tunc order purporting to correct a clerical
error in the judgment.
                                      DISPOSITION
       The April 9, 2015, order after hearing and order correcting clerical error and
amending judgment nunc pro tunc are reversed. The trial court is directed to enter a new
order denying Mary’s motion to correct clerical error and amend the judgment nunc pro
tunc. Cynthia is entitled to her costs on appeal.




                                                                 _____________________
                                                                              HILL, P.J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
GOMES, J.




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