In Jonson v. Weinstein (1967) 249 Cal. App. 2d 954, the plaintiffs requested entry of the defendant's default. The clerk failed to enter the default, and on December 29, 1964, the court entered an order directing the clerk to enter the default nunc pro tunc as of April 30. (Ibid.)
A default judgment was entered against the defendant on January 5, 1965. ( Ibid.) in April 1965, the defendant moved to set aside the default and the default judgment. (Ibid.)
On appeal, the court concluded the defendant's motion to set aside the default was filed within the six-month period set by Code of Civil Procedure section 473.
"The clerk having failed to act on plaintiffs' request to enter the default in April 1964, the court was justified in directing him to perform the ministerial duty imposed upon him by Code of Civil Procedure section 585.
The order itself was valid, but its nunc pro tunc feature cannot be sustained under the circumstances of this case. Physical entry of the default occurred in December 1964 and Weinstein's motion to vacate the default was made in April 1965, before six months had passed and soon after Weinstein learned of the judgment. The order's nunc pro tunc feature fictitiously pushed the default backward in time to a point where it could not be reached by a section 473 motion.
Nunc pro tunc antedating aims to avoid injustice. When a statutory period within which a party or court may act is jurisdictional, the statute may not be defeated by the simple device of a nunc pro tunc order.
The law's policy favors disposition of litigation on the merits. If a default is traceable to mistake, inadvertence or excusable neglect, its nunc pro tunc entry would preserve not the legitimate fruits of litigation, but the unfit fruits.
The nunc pro tunc feature of the order being invalid, the actual date of default entry governs. Since Weinstein's motion was presented within six months of that date, it was cognizable as a motion under section 473." (Jonson v. Weinstein, supra, 249 Cal. App. 2d at p. 959.)
In Jonson v. Weinstein (1967) plaintiffs filed a seven-count complaint against numerous defendants, including 40 Doe defendants, on August 2, 1963; on February 11, 1964, plaintiffs filed an amendment to the complaint adding an eighth count. (Jonson, supra, 249 Cal.App.2d at p. 956.)
On February 26, 1964, defendant Eugene C. Weinstein (Weinstein) was served as "Third Doe"; however, he was not served with the amendment, nor did plaintiffs ever amend the complaint to name Weinstein as a Doe defendant. (Id. at pp. 956-957.)
On April 30, 1964, plaintiffs requested entry of default against Weinstein and other defendants, but for some reason, the clerk neglected to act on the request. (Id. at p. 957.)
On December 29, 1964, plaintiffs obtained an order directing the clerk to enter the defaults nunc pro tunc as of April 30, 1964, and then obtained a default judgment against Weinstein and the other defaulting defendants. (Ibid.)
After a writ of execution was issued and an abstract of judgment recorded in April 1965, Weinstein moved to set aside the default and default judgment, which the trial court granted. (Id. at pp. 956-957.)
The Court of Appeal found that while the default judgment was improperly entered, the trial court erred in vacating the default. (Id. at pp. 957-959.)
However, the court agreed with Weinstein that the "nunc pro tunc feature of the order entering the default could not be sustained under the circumstances" because it "fictitiously pushed the default backward in time to a point where it could not be reached by a Code of Civil Procedure section 473 motion." (Id. at p. 959.)
The court further explained that "when a statutory period within which a party or court may act is jurisdictional, the statute may not be defeated by the simple device of a nunc pro tunc order. " (Ibid.)