Filed 5/9/16 Taubman v. U.S. Bank, N.A., Trustee CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


ANNE C. TAUBMAN et al.,                                              B267154

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. BP066539)
         v.

U.S. BANK, N.A., Trustee,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County. Maria E.
Stratton, Judge. Reversed and remanded.
         Glaser Weil Fink Jacobs Howard Avchen & Shapiro LLP, Barry E. Fink and
Elizabeth G. Chilton for Defendant and Appellant.
         No appearance for Plaintiffs and Respondents.




                                      ____________________________
       In what should have been the final chapter of a long story, the probate court was
presented with the request for an order finalizing the proceedings. Through a series of
procedural problems, the court made an order, but then entered a judgment that did not
reflect its ruling. Although trustee U.S. Bank promptly sought correction, the steps
necessary to resolve the problem were not taken in a timely manner. As the record
clearly demonstrates that the order should be vacated, we reverse, and remand for the
probate court to enter an order consistent with its ruling.

                    FACTUAL AND PROCEDURAL SUMMARY
       In light of the fact that this appeal involves an order as to which there is no
dispute, the factual summary relates only to the events surrounding that order.
       On July 6, 2012, U.S. Bank, the Trustee of The Janice L. Taubman 1990
Revocable Trust (Trustee), filed a petition to wind up the trust, pay legal fees and
expenses, approve the Trustee’s accounting, distribute assets, and permit the Trustee to
resign. The Trustee filed a supplement to the petition on September 4, 2012, providing
further information as to distributions that had been made. After the hearing on the
petition was continued, the Trustee filed a second supplement to the petition, providing
additional information about distributions and supplementing the accounting.
       The court heard the petition on December 23, 2014, and issued a ruling on
February 2, 2015. That ruling, however, did not include information provided in the
supplements to the petition, and appeared instead to rely on superseded probate notes.
The Trustee sought clarification in a filing made on February 13, 2015. Beneficiary
Anne Taubman1 also objected to the February order, and agreed that it failed to address
the recent filings. The court heard her motion on April 14, 2015, and denied it on
May 28, 2015. The court granted the Trustee’s motion for clarification in an order dated
July 6, 2015.


1      There are two beneficiaries of the trust, Anne Taubman and her brother Richard
Taubman. In this opinion, we will use Taubman to refer to Anne, as the judgment at
issue was filed on her behalf.
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       Although Taubman had affirmatively asserted that the February 2 order did not
reflect recent developments in the case, she submitted a proposed judgment based on that
order. That proposed judgment was inconsistent with the July 6 ruling, but favorable to
her financial position. The Trustee timely filed an objection.
       On July 23, 2015, the court signed the proposed judgment submitted by Taubman,
notwithstanding the inconsistency between that judgment and the July 6 order. Taubman
promptly served notice of entry, and demanded satisfaction of the judgment.
       The Trustee moved to vacate the judgment on August 5, 2015; Taubman opposed
the motion. The court set the matter for hearing, and stayed enforcement of the
judgment. The motion to vacate was argued on August 17, 2015, and the court took the
matter under submission. Because the time to appeal the judgment was expiring, the
Trustee filed this appeal on September 28, 2015.2
       The probate court issued a minute order on November 2, 2015, granting the
Trustee’s petition and its request the July judgment be vacated. The court acknowledged
that the February 2 order had been based on outdated notes, confirmed the July 6 order,
and confirmed that the judgment had been signed in error. The court ordered the Trustee
to submit a new proposed judgment.
       The court signed the order vacating the prior judgment on November 20, 2015 and
the Trustee lodged a proposed judgment on December 15, 2015. The court has not
entered the new judgment.

                                      DISCUSSION
       At the time the Trustee filed its motion to vacate the judgment, and at the time of
the hearing, the probate court had the jurisdiction and the authority to act on the
judgment. However, after the Trustee filed the notice of appeal on September 28, 2015,
the court was divested of jurisdiction.

2      While Taubman acknowledged throughout these proceedings that the February
order was inconsistent with the facts that existed at that date, she nonetheless declined to
agree to ask the court to vacate the judgment premised on that order, and insisted this
appeal was required. Taubman did not file a respondent’s brief on appeal.
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       As in other civil cases, a probate court generally loses jurisdiction to act with
respect to a judgment on appeal. (Kane v. Superior Court (1995) 37 Cal.App.4th 1577,
1584.) In limited circumstances, defined by Probate Code section 1310, subdivision (b),
the trial court may retain jurisdiction to make orders to prevent injury or loss; this
exception, however, is narrowly construed. (Gold v. Superior Court (1970) 3 Cal.3d 275,
282 [exception requires “an affirmative showing . . . of extraordinary circumstances
involving potential loss or injury”].) The Trustee made no showing below, nor has it
argued here, that the exceptional circumstances required to invoke this authority are
present in this case.
       The Trustee is correct, however, in arguing that at the time the motion to vacate
was filed and heard, the court did have both the jurisdiction, and the authority, to vacate a
judgment that did not conform to the terms of its own order. A court “has the inherent
power to correct clerical errors in its records so as to make those records reflect the true
facts. (In re Candelario (1970) 3 Cal.3d 702, 705.) “[A] trial court has power to correct
mistakes and to annul orders and judgments inadvertently or improvidently made.”
(Bastajian v. Brown (1941) 19 Cal.2d 209, 214 (Bastajian).) While a court cannot amend
a judgment to correct judicial error, that the error here was clerical, and thus within the
court’s authority, cannot be disputed.
       First, we look to the court’s own statement as to its intent in making the new
order; it is the court making the order that is in the best position to know that intent.
Here, the court made clear that the July judgment was not reflective of its order, and was
signed in error.
       Next, reviewing the nature of the claimed error, where the minute order, which is
evidence of the intent of the decision, is inconsistent with the judgment, we may infer the
error was in signing the judgment, and thus clerical in nature, rather than an error in the
ruling itself. (Bastajian, supra, 19 Cal.2d at pp. 210-215.)
       The Trustee urges us to confirm the authority of the probate court to vacate the
judgment in this case and to enter a new judgment that conforms to the actual order of the
court. Citing the cases permitting a court to correct clerical error, the Trustee ignores the

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critical fact in this case: at the time the court ordered the judgment vacated, the Trustee
had already appealed that judgment, divesting the court of the authority to take the action
the Trustee sought. However, because it is clear from the record, from the positions
taken by the parties in the probate court, and from the court’s own rulings that the merits
of this matter have been resolved, we will reverse the judgment signed in error and
remand the matter so that the probate court may enter the judgment it ordered prepared
on November 2, 2015.
                                      DISPOSITION
       The judgment is reversed and the matter remanded for entry of a judgment
consistent with the court’s order of November 2, 2015, and for any further proceedings
consistent with this opinion. Appellant shall recover its costs on appeal.




                                                  ZELON, Acting P. J.




We concur:




       SEGAL, J.




       BLUMENFELD, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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