Motion - Notice by shitingting

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									 1   Timothy J. Walton, Esq. (State Bar No. 184292)
     WALTON & ROESS LLP
 2   407 South California Avenue
     Suite 8
 3   Palo Alto, CA 94306
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     Phone (650) 566-8500
 5   Fax: (650) 618-8687

 6   Attorneys for Plaintiff
     INFINITE MONKEYS & CO, LLC
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 9                      SUPERIOR COURT OF THE STATE OF CALIFORNIA
10                  COUNTY OF SANTA CLARA (UNLIMITED JURISDICTION)
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     INFINITE MONKEYS & CO, LLC,                        )    Case No.: 1-05-CV-040202
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                     Plaintiff,                         )    MEMORANDUM OF POINTS AND
13                                                      )    AUTHORITIES IN SUPPORT OF
            vs.                                         )    MOTION FOR ORDER TO AMEND
14                                                      )    JUDGMENT NUNC PRO TUNC
     T REX MEDIA, LLC, et al.,                          )
15                                                      )    Date:
                                                        )    Time:
16                   Defendants.                        )    Dept:
                                                        )
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                                                        )    Complaint filed: April 28, 2005
18                                                      )    Trial Date: None Set

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20                                          I. INTRODUCTION

21          Plaintiff seeks an order from this Court amending the judgment to reflect to the true name
22   of the judgment debtor. Plaintiff has prevailed at trial and will be unable to enforce the judgment
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     against the Defendant because the Defendant has since changed its name. This Court should
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     grant Plaintiff's motion and modify the judgment to reflect the Defendant's true name.
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                                                          1
         Memorandum of Points and Authorities in Support of Motion for Order to Amend Judgment Nunc Pro Tunc.
 1                                    II. STATEMENT OF FACTS

 2           (facts will be updated as soon as I write the declaration). Defendant T Rex Media, LLC
 3   has registered at least 25 different Internet domain names. (Declaration of Ronal F. Guilmette in
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     Support of Motion for Preliminary Injunction at ¶ 5.) Defendant T Rex Media, LLC has sent
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     commercial email to Plaintiff's email servers while representing at least 19 different Internet
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     domain names as the sources of those advertising emails. (Declaration of Ronal F. Guilmette in
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     Support of Motion for Preliminary Injunction at ¶ 6.) Defendant T Rex Media, LLC has also
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     used at least 1004 different numerical Internet Protocol (IP) addresses while sending bulk
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     commercial email (known as "spam") to the email servers of Plaintiff. (Declaration of Ronal F.
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     Guilmette in Support of Motion for Preliminary Injunction at ¶ 12.) Plaintiff has received more
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12   than 9,000 commercial email advertisements from Defendant T Rex Media, LLC. (Plaintiff's

13   Verified First Amended Complaint at ¶ 13.)

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                                            III. DISCUSSION
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     A. Legal Standard
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             In California, "[a]ll Courts have inherent authority to issue orders judgments nunc pro
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     tunc . . . ." Martin v. Martin (1970) 2 Cal.3d 752, 760. The primary purpose of a judgment nunc
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     pro tunc is to fix a mistake in the judgment rendered, and not to modify the terms of the
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     judgment. Hamilton v. Laine (1997) 57 Cal.App.2d 885, 891. California cases state three
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21   situations under which the court is authorized to grant a judgment nunc pro tunc: (1) "[to]

22   preserve[e] the legitimate fruits of the litigation which would otherwise be lost to the prevailing

23   party;" (2) "[to] correct [a] deficiency in the recordation of a previous decision so as to express

24   the true intention of the court as of the earlier date;" and (3) to correct a clerical error. Young v.

25   Gardner-Denver Co. (1966) 255 Cal.App. 23d 915, 919.


                                                          2
         Memorandum of Points and Authorities in Support of Motion for Order to Amend Judgment Nunc Pro Tunc.
 1           California law expressly permits modification of judgments after entry: "[t]he court may,

 2   upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or
 3   orders as entered, so as to conform to the judgment or order directed . . ." California Code of
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     Civil Procedure § 473(d). The term "clerical error" covers "[a]ll errors, mistakes, or omissions
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     which are not the result of the exercise of the judicial function. If an error, mistake, or omission
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     is the result of inadvertence . . . the error is clerical and the judgment may be corrected to
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     correspond with what it would have been but for the inadvertence." Aspen Internat. Capital
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     Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204. This standard encompasses
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     misidentification or misdescription of persons or property affected by the court's judgment.
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     Chula v. Superior Court (1962) 57 Cal. 2d 199, 206 (allowing plaintiff to add officer or
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12   shareholder who controlled litigation as a judgment debtor).

13   B. Defendant's Change of Name Was Designed to Prevent Plaintiff from Realizing the
        Fruits of His Litigation
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             Through diligence of Plaintiff's attorney, Plaintiff discovered that Defendant has changed
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     its name to Seed Corn Advertising, d/b/a EDaily Winners in an effort to circumvent the
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     judgments against it. (Declaration). Because Defendant changed its name, Plaintiff will be
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18   unable to enforce or will have difficulty enforcing its monetary judgment and injunction against

19   the plaintiff. Plaintiff asks the court to amend these judgments nunc pro tunc so as to prevent

20   Plaintiff and others from losing the fruits of the litigation. As such, Plaintiff requests an order to

21   amend the judgment nunc pro tunc so as to reflect the Defendant's true name(s).
22   //
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     //
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     //
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     //


                                                           3
          Memorandum of Points and Authorities in Support of Motion for Order to Amend Judgment Nunc Pro Tunc.
 1   C. Defendant's Change of Name Resulted in a Misidentification in the Final Order

 2          Defendant's deliberate change of name to Seed Corn Advertising, d/b/a EDaily Winners
 3   caused this Court to unintentionally misidentify the Defendant. This Court has the power to
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     correct clerical errors, including mistaken identification of the Defendant in the final order. As
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     such, Plaintiff requests an order to amend the judgment nunc pro tunc so as to reflect the
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     Defendant's true name(s).
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                                            IV. CONCLUSION
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 9          Plaintiff seeks a an order amending the judgment nunc pro tunc to reflect the true name of

10   the Defendant in this matter... This Court should modify the judgment so as to allow Plaintiff to

11   adequately enforce his judgment.

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                                                     WALTON & ROESS LLP
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     Dated: August 1, 2008                            By: ___________________________
18                                                    Timothy J. Walton
                                                      Attorneys for Plaintiff
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         Memorandum of Points and Authorities in Support of Motion for Order to Amend Judgment Nunc Pro Tunc.

								
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