Filed 5/3/18 Master Plumbing and Sewer, Inc. v. Fountaine West etc. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


MASTER PLUMBING AND SEWER, INC.,
Plaintiff and Appellant,
v.
FOUNTAINE WEST CONDOMINIUM OWNERS ASSOCIATION,
Defendant and Respondent.

A143711

(San Mateo County
Super. Ct. No. CIV507211)


Appellant Master Plumbing and Sewer (Master Plumbing) brought suit to recover money owed on invoices for the repair and replacement of a sewer line at a residential condominium. Respondent Fountaine West Condominium Owners Association (Fountaine West) and an individual unit owner cross-complained against Master Plumbing alleging, among others causes of action, intentional and negligent misrepresentation, negligence and breach of contract. After a seven-day bench trial, the trial court issued a detailed 22-page statement of decision, and a judgment entirely in favor of Master Plumbing, including that Fountaine West had breached its contract. Fountaine West then filed a motion to vacate the judgment under Code of Civil Procedure section 663a, challenging the award of attorney fees to Master Plumbing, the undisputed prevailing party. The trial court granted the motion to vacate and entered an amended judgment denying Master Plumbing attorney fees. Master Plumbing now appeals on two alternative grounds: the trial court was without jurisdiction to enter an amended judgment because the motion to vacate was not timely under section 663a, subdivision (b), and, even if it was timely, the court lacked the power on a motion to vacate to reweigh the evidence and vacate its findings of fact which is what it impermissibly did in vacating the judgment. We agree that the trial court erred when it used a motion to vacate to amend its findings of fact, and order that the original judgment be reinstated.
I. FACTUAL AND PROCEDURAL BACKGROUND
The trial court entered a judgment that Master Plumbing was entitled to the principal sum of $91,741.63 on its breach of contract cause of action against Fountaine West, plus statutory costs, prejudgment interest, a contractual late fee of 2 percent per month, attorney fees and other appropriate costs, all in an amount to be determined by the court pursuant to a memorandum of costs to be filed by Master Plumbing.
To understand whether the court erred in granting the motion to vacate judgment, we step back to the statement of decision, which we summarize below, and the procedural history that surrounded it.
Statement of Decision
The trial court made certain “General Findings of Fact,” described as “applicable to all of the claims and causes of action of the parties,” and incorporated into its findings of fact and conclusions of law as to the claims of the parties. The pertinent General Findings of Fact include these:
On behalf of the board of Fountaine West, Linda Croley, its president, asked Master Plumbing to inspect the sewer system at Fountaine West after Master Plumbing had completed a sewer replacement project at an adjacent residential property known as Lago. The sought-after inspection at Fountaine West was “prudent based on problems at Lago and the similar ages and construction of the two properties.” “Individuals who were extremely knowledgeable in property management ran Fountaine West at the time of Master Plumbing’s engagement with the project. Ms. Croley was a property manager with experience dealing with contractors.”
Master Plumbing took a video of the sewer line on March 29, 2011, and informed Croley of the need to clean the line, but advised her that cleaning the line could damage it based on its age and conditions. Fountaine West authorized Master Plumbing to undertake that work, which it did.
Then an “emergency situation” arose after April 26, 2011, resulting from a back up of the sewer line, and Fountaine West asked Master Plumbing to come out to the property and make repairs to the sewer line under Building 3015 and make it work again. The trial court found:
“8. . . . Master Plumbing accepted the assignment and billed Fountaine West for its work on Master Plumbing standard form invoices. These invoices were approved and paid by Fountaine West.
“9. On May 19, 2011, Fountaine West and Master Plumbing modified their contractual relationship, for Phase I, by the terms of a document entitled ‘Time and Material Contract for Jackhammering.’ (Exhibit 56.) Following the modification, Master Plumbing continued to bill Fountaine West for its work pursuant to the rates set forth in the Time and Material Contract. These bills were submitted to Fountain[e] West on Master Plumbing standard form invoices. Fountaine West paid all Master Plumbing invoices dated April 29, 2011 through May 25, 2011. (Exhibits 2-23.) A schedule of the paid invoices was introduced into evidence as Exhibit 1.
“10. Fountaine West and Master Plumbing then entered into a Phase II, or fixed sum, contact on June 10, 2011 (Exhibit 57).
“11. Master Plumbing completed its work under the Phase II, or fixed sum, contract on June 28, 2011. Master Plumbing billed for this work on its standard form invoices. The Court finds that the invoices were for labor properly performed and materials duly delivered.”
The trial court found that “Master Plumbing’s invoices to Fountaine West and the terms set forth therein were fair and reasonable.”
As to Master Plumbing’s breach of contract claim, the trial court made additional “Findings of Fact,” including that “[o]n April 26, 2011, Fountaine West requested that Master Plumbing come to the premises to diagnose, service and repair a blockage in its sewer line under Building 3015.” The trial court further found:
“c. Master Plumbing invoiced its work, consisting of the furnishing of labor, services, equipment and materials for repair or replacement of the sewer line under Building 3015 pursuant to the terms of written invoices that were received in Evidence as Exhibits 2-41 and 43-44. These invoices were rendered contemporaneously with the performance of the work and were duly delivered to and accepted by Fountaine West.
“d. On or about May 19, 2011, Master Plumbing and Fountaine West modified in writing (Exhibit 56) the terms (rates) for the provision of labor, service and materials for the project and that writing was duly accepted by Francisco Leon, an authorized agent for Fountaine West, on or about May 19, 2011.
“e. Master Plumbing and Fountaine West further modified the rates for their work by the terms of the Fixed Price Bid which was accepted by Fountaine West on or about June 10, 2011 (Exhibit 57).
“f. The writings setting forth the terms of the contractual agreement of the parties for the work consists of the invoices, Exhibits 2-41, 43-44, the Time and Materials Contract for Jackhammering (Exhibit 56) and the Formal Bid (Exhibit 57).
“g. The total agreed price of the labor, services and materials supplied by Master Plumbing was $168,214.81, of which the sum of $71,125.95 has been paid by Fountaine West. Unit owner Li paid to Master Plumbing the sum of $5,347.23 which is to be credited to Fountaine West.” (Italics added.)
The trial court found that after application of the payment from Fountaine West and the credit for the payment from Li, the principal amount due and owing to Master Plumbing on the contract was $91,741.63, and that the work was performed properly, “in accordance with the terms of the agreement between Master Plumbing and Fountaine West,” performed pursuant to a permit, inspected and approved by the City of San Mateo. There was no factual basis for any offset on the amount “billed and unpaid.”
In its “Conclusions of Law” the trial court wrote that Master Plumbing was “entitled to a judgment against Fountaine West on its Breach of Contract cause of action in the sum of $91,741.63 together with prejudgment interest, late charges of two percent per month (based on the contract language found on page two of the invoices (See Exhibit 3)) and such costs of suit and attorney fees as the court may hereafter determine after the filing of a Memorandum of Costs.”
Procedural Background
Before issuing the written statement of decision, the trial judge gave a lengthy oral tentative ruling in favor of Master Plumbing on its breach of contract and foreclosure of mechanic’s lien claims, and rejecting all of Fountaine West’s damage claims. The trial court elaborated on the credibility of seven witnesses. Master Plumbing requested a statement of decision, and the trial court asked Master Plumbing to prepare it. After Master Plumbing prepared the proposed statement of decision, Fountaine West filed lengthy and detailed written objections, including striking out all repeated references to the factual findings that Fountaine West had accepted the terms of the invoices and that the invoices were among the documents that set forth the terms and provisions of the contract between the parties.
The trial court did not credit these objections. It signed the statement of decision we have described above, including factual findings that supported the award of attorney fees, and the original judgment.
Fountaine West then filed a motion to vacate the judgment under section 663, arguing that the “facts clearly do not support a finding that [Master Plumbing] is entitled to attorneys fees.” Master Plumbing opposed the motion on the ground that a motion to vacate under section 633 could not be used to attack the court’s findings of fact on the contract issues.
Three post-trial motions were set for hearing on the same day: Fountaine West’s motion to vacate judgment and its motion to tax costs, and Master Plumbing’s motion for an order fixing attorney fee recovery under Civil Code section 1717. The motion for attorney fees was opposed by Fountaine West on the ground that there was no legal authority for attorney fees, referring to its motion to vacate judgment.
The trial court heard lengthy oral argument on the motion to vacate the judgment, which we describe below, concluding at the end that it “at this point [is] going to set aside the statement of decision and judgment insofar as it awards attorney’s fees to Master Plumbing and will order Master Plumbing to prepare an amended judgment which excludes the provision of attorney’s fees.”
On September 26, 2014, the court entered an Amended Judgment stating in substance that “[t]he Motion to Vacate was granted and the court ordered that its findings of fact and conclusions of law set forth in the Court’s Statement of Decision be set aside insofar as the Court found that Fountaine West was aware of and accepted the attorney fee provisions set forth in the Master Plumbing invoices and that Master Plumbing was entitled to recover attorney fees on its contract claim.”
II. DISCUSSION
Did the Court Err in Granting the Motion to Vacate the Judgment?
As pertinent here, section 663 provides that a judgment based upon a decision by a court may be set aside and a new and different judgment entered where there is an “incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.”
“As the statutory language indicates, a motion to vacate lies only where a ‘different judgment’ is compelled by the facts found. (§ 663.) A motion to vacate under section 663 may only be brought when ‘the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.’ (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738, italics added.)” (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1574, disapproved on another ground by Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135, fn. 3.) It is a “ ‘remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.’ ” (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14.) However, in ruling on a motion to vacate, “the court cannot ‘ “in any way change any finding of fact.” ’ [Citation.]” (Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.)
As the California Judge’s Benchbook Civil Proceedings—After Trial (CJER 2017) (Judge’s Benchbook) instructs, “Relief is available under CCP § 663 only when a different judgment is compelled by the facts found by the judge or jury. In ruling on a motion to vacate, a judge cannot in any way change any finding of fact. (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1350.) A motion to vacate cannot be used to challenge the sufficiency of the evidence to support the judgment or to secure additional findings that were not made before the judgment was entered. (247 Cal.App.4th at 1350-1351.)” (Judges Benchbook, supra, § 2.111, pp. 203-204.)
“As a practical matter, many judges find that vacating a judgment under CCP § 663 can rarely be justified because the judge must be able to enter a new and different judgment and most trial records do not allow a judge to do this without becoming a trier of fact. . . . [¶] . . . When ruling on a motion to vacate, a judge cannot change any findings of fact; the judge only has the power to change conclusions of law. [Citation.]” (Judge’s Benchbook, supra, § 2.119, p. 208.)
Master Plumbing contends that the motion to vacate judgment is in error because Fountaine West impermissibly used a section 663 motion to attack the court’s findings of fact on the breach of contract issue. We agree.
Our analysis starts with the Second Amended Complaint, Master Plumbing’s operative pleading, which placed defendants on notice that Master Plumbing sought attorney fees for the breach of contract action. Paragraph 10 stated that as to the written Time and Material Contract for Jackhammering (exhibit 56, cited above), the “invoices set forth additional terms under the contract that were accepted by Fountaine West by their conduct in paying pursuant to the invoices and/or by failing to object to the terms of the invoices. Said invoices included, inter alia, a provision providing that Master Plumbing is entitled to recover its attorney fees and costs should it prevail in any court action [sic] collect payment due on the contract.” Master Plumbing made the same claim for attorney fees in connection with the written Formal Bid (exhibit 57, cited above).
In its detailed statement of decision, the trial court made two essential findings of fact: “Master Plumbing invoiced its work, consisting of the furnishing of labor, services, equipment and materials for repair or replacement of the sewer line under Building 3015 pursuant to the terms of written invoices that were received in Evidence as Exhibits 2-41 and 43-44. These invoices were rendered contemporaneously with the performance of the work and were duly delivered to Fountaine West;” and “The writings setting forth the terms of the contractual agreement between the parties for the work consists of the invoices, Exhibits 2-41, 43-44, the Time and Materials Contract for Jackhammering (Exhibit 56) and the Formal Bid (Exhibit 57).” (Italics added.) It is undisputed that there is an attorney fee clause on each of the invoices under a heading entitled “TERMS AND CONDITIONS,” and that the front page of the invoice, directly under the word “TOTAL” instructs the reader to “See Reverse for Terms & Conditions.”
Fountaine West, in seeking to affirm the trial court’s decision to vacate the judgment under section 663, describes the “issue at hand” as “whether the attorney fee clause on the back of the invoices was part of a contract between Master and Fountaine West.” It argues that in granting the motion the trial court “correctly concluded that the contractual relationship between Master Plumbing and Fountaine West did not include the preprinted attorney fee clause on the back of Master’s unsigned invoices.” Fountaine West’s framing of the issue shows how the trial court erred in granting the motion: Fountaine West was essentially asking the trial court to reweigh the facts and make a different factual finding that in its original Statement of Decision, where it had found that the written contract did consist of the entirety of the exhibits and the invoices, without differentiation as to one clause or another.
Fountaine West contends that all that the trial court did was reach a different conclusion of law, something it is entitled to do in a ruling on a motion to vacate a judgment. Fountaine West can prevail on a section 663 motion if Master Plumbing cannot recover attorney fees as a matter of law, but that is plainly not the case on the record before us.
Fountaine West relies principally on C9 Ventures v. SVC-West. L.P. (2012) 202 Cal.App.4th 1483 (C9 Ventures). SVC, in the business of selling time-shares, telephoned C9, a provider of event supplies, and placed a rush order for eight tanks of helium to inflate balloons. C9 accepted the order and delivered the tanks with an invoice, which had an indemnification clause on the back. SVC accepted the tanks without signing the invoice. Later that day, a boy was injured when a tank fell on him. SVC and C9 were sued, and each paid a settlement to the boy’s family. Then C9 sought indemnification from SVC, which the Court of Appeal concluded was not supported by substantial evidence. C9 Ventures is legally and (obviously) factually distinguishable. First. the appellate opinion begins with the observation that “[t]his case could serve as a question on a law school final examination for a course on the Uniform Commercial Code.” (Id. at p. 1487.) C9 has nothing to do with section 663, and it is undisputed that the Uniform Commercial Code has nothing to do with the appeal now before us. After the C9 court determined that the contract at issue was an oral contract for the lease of personal property (helium tanks) less than $1,000, the Court of Appeal concluded, among other things that the trial court had relied on an inapplicable section of the Uniform Commercial Code in finding an indemnification clause, and that there was no substantial evidence in the record to conclude that the indemnification provision on the back of the unsigned invoice was enforceable against SVC. Which is not to say there could not have been “assent[] to the terms on the back of the invoice by signing it or manifesting assent in some other way” under “common law principles;” there simply was no substantial evidence in C9 Ventures. (Id. at p. 1500.)
The issue before us is not whether the trial court’s original factual findings were correct or supported by substantial evidence; it is only whether section 663 was the proper statutory basis to challenge and vacate the judgment. It is apparent from the lengthy transcript of the hearing on the motion to vacate that the parties were arguing the evidence, and the trial court was grappling with whether it had made an incorrect finding of fact.
For example, Master Plumbing’s counsel argued that Fountaine West was on notice of the legal basis for seeking attorney fees, first because it was set out in the complaint, and then when Master Plumbing made an offer of proof during trial with respect to the invoices. Master Plumbing’s counsel summarized that it had offered evidence about a discussion between Linda Croley and Bart Adams (president of Master Plumbing) about invoice terms, so Fountaine West knew “that was our theory, and this was the evidence.” And in closing argument, Master Plumbing’s counsel stated it was requesting attorney fees. Most basically, counsel contended that Master Plumbing met its burden of proof on the attorney fees term when it submitted invoices with the attorney’s fee provision in them. “We put on our case. The association essentially ignored the issue.” That is, until the judgment was entered. Summarizing briefly, counsel elaborated on the direct course of dealing between the principals, the audit of invoices by members of the board of directors of Fountaine West, the approval of payment of multiple invoices by a board member authorized to approve them after audit, the inference that that a “principal who is conducting an audit of an invoice” reads the invoice and should have objected if he does not agree with it, a continuing course of conduct between the parties, and the prior dealing between Croley and Master Plumbing. And, when Fountaine West filed its cross-complaint against Master Plumbing, it also requested attorney fees, the only source of which could have been the attorney’s fee provision on the invoices.
The trial court’s questions showed that it was reconsidering the factual findings and inferences it had already made. For example, the court asked opposing counsel, “Do you think that it’s appropriate for the Court to make certain inferences that Mr. O’Grady would have the Court make such that if you look at the whole picture and you look at the interactions between Linda Croley and Bart Adams and Francisco Leon [the board member in charge of the audit who approved the invoices] and Bart Adams and you look at everything. You look at the audits. You look at the fact the individuals involved with Fountaine West are intelligent, educated, savvy individuals. Do you think that it’s appropriate for the Court to infer[ ] from that that they accepted the terms that are contained on the back of the invoice?” And later: “[W]hat Mr. O’Grady [Master Plumbing counsel] is suggesting is that from all the facts that have been presented there is a course of conduct, if you will, or a history from which the Court could reasonably find that there was an acceptance of the terms that existed on the back of the invoice.” And then the court asked, “What about the fact that the attorney’s [fee] provision follows directly behind the interest rate provision?” Later the trial court commented that “[i]t’s a matter of looking at the facts as they were presented and making a determination as to whether or not that contractual relationship existed or whether or not this was incorporated into that contractual relationship.” But the court had already done that in issuing the statement of decision and the original judgment.
In sum, we conclude that Fountaine West used a motion to vacate to challenge the sufficiency of the evidence to support the judgment and to change or obtain additional, findings of fact. This relief is not available under section 663. We therefore vacate the amended judgment and remand the matter to the trial court to determine the amount of attorney fees.
III. DISPOSITION
The amended judgment is set aside and the case is remanded to the trial court to determine the amount of attorney fees to which Master Plumbing is entitled. Master Plumbing is entitled to its costs on appeal.

 





_________________________
Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.














A143711, Master Plumbing and Sewer, Inc. v. Fountaine West Condominium Owners Assoc.