Bandini v. Borgen

Filed 3/15/06 Bandini v. Borgen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Lisa Foster, Judge. Affirmed. Cross-appeal dismissed.

In this long-running real property dispute, plaintiff Marty Bandini appeals from the trial court's March 9, 2005 order denying her motion to vacate a November 19, 2004 order. Bandini contends that the trial court did not have authority under Code of Civil Procedure^[1] section 473, subdivision (d) to set aside a previous award of attorney fees to her. Defendant Linda Borgen has moved to dismiss Bandini's appeal as untimely and has also filed a protective cross-appeal in which she contends that the trial court erred in rejecting alternative grounds that she had advanced for setting aside the attorney fees award.

For reasons we will explain, we deny the motion to dismiss the appeal, we affirm the trial court's March 9, 2005 order, and we dismiss Borgen's cross-appeal as moot.

I

FACTUAL AND PROCEDURAL BACKGROUND

The procedural history of this action is long and complicated, and we focus here only on the facts relevant to the issues before us on appeal.

This action centers on a dispute between Bandini and Borgen about a house they owned together. On March 14, 2003, the parties entered into a settlement on the record before the trial court (the in‑court settlement). The terms recited by the trial court on the record included that Borgen would pay Bandini $55,000 in exchange for a deed conveying her interest in the house; Borgen was to forgive a note given by Bandini; all occupants were to vacate the primary dwelling by a certain date; Bandini would pay Borgen $640.89 by a certain date; the parties would sign mutual releases; and the court would continue in force and modify certain restraining orders. There was no mention on the record of any party's responsibility for attorney fees in the event that litigation was required to enforce the terms of the settlement. Both parties expressly agreed to the in‑court settlement on the record. The trial court directed the parties to reduce the in‑court settlement to a signed writing.

The parties could not reach consensus on a written agreement, and they both filed motions pursuant to section 664.6 to have the trial court enforce the settlement by entering judgment. On May 19, 2003, the trial court granted Bandini's motion and directed that Bandini's counsel prepare an order and judgment.^[2]

On June 12, 2003, the trial court signed and entered a document titled "Judgment" that was submitted by Bandini (the June 2003 judgment). The June 2003 judgment reflected the in‑court settlement and added several additional terms, including an attorney fees provision stating that in any action to enforce the settlement the prevailing party would be entitled to reasonable attorney fees and costs. As both parties agree, the June 2003 judgment was submitted to the trial court in error. It was an earlier version of the document that had not been agreed to by the parties. Although the trial court's clerk was informed by the parties that the text of the June 2003 judgment had not been agreed to and that the parties were working on a revised draft, the trial court inadvertently signed it and entered judgment.

The parties attempted to agree on a stipulation to vacate the inadvertently signed June 2003 judgment, but they could not reach agreement. Bandini then filed a motion asking the trial court to amend the June 2003 judgment to conform it to the in‑court settlement pursuant to its authority under section 473, subdivision (d), which gives the trial court the authority to correct clerical mistakes and set aside void judgments and orders. Bandini submitted a proposed amended judgment for the court's signature. In the same motion, Bandini requested (1) that the trial court order the escrow company to close escrow despite Borgen's alleged refusal to sign the joint escrow instructions required to complete the conveyance of Bandini's interest in the house; and (2) that the trial court award Bandini attorney fees incurred in connection with the relief sought in the motion. The request for attorney fees was based on the attorney fees provision in the June 2003 judgment.

The trial court (1) granted the motion to amend the judgment, (2) granted the motion to close escrow, and (3) took the request for attorney fees under submission. Before resolving the attorney fees issue, the trial court signed and entered an amended judgment on September 29, 2003 (the September 2003 judgment). The September 2003 judgment was signed by counsel indicating they had approved it as to form. It was not signed by the parties nor did the parties orally indicate to the trial court on the record that they agreed to its terms. The September 2003 judgment, like the June 2003 judgment, included an attorney fees provision providing that in an action to enforce it the prevailing party would be entitled to recover reasonable attorney fees.

In a December 2, 2003 minute order, the trial court granted Bandini's request for attorney fees, awarding her $11,500 (the attorney fees award). The trial court explained that it based the attorney fees award on the attorney fees provision in the June 2003 judgment.

Borgen filed a motion requesting that the court reconsider the attorney fees award. Specifically, she asked for the following relief: (1) an order granting reconsideration of the attorney fees award pursuant to section 1008; (2) an order granting relief from the attorney fees award under section 473, subdivisions (b) or (d); and (3) an order striking the attorney fees provision from the September 2003 judgment.

In a tentative statement of decision, which the trial court later adopted in a November 19, 2004 order, the court denied the motion to the extent it was premised on section 1008 (which governs motions for reconsideration) and section 473, subdivision (b) (which governs relief from a party's mistake, inadvertence, surprise or neglect), but it granted the motion to the extent it was based on section 473, subdivision (d) (which gives the court authority to set aside a void judgment or order) (the November 2004 order). Specifically, the trial court ruled that because the parties had not agreed to an attorney fees provision on the record or in writing, it had exceeded the authority conferred by section 664.6 by entering a judgment containing an attorney fees provision. Accordingly, the trial court struck the attorney fees provision from the September 2003 judgment and set aside the attorney fees award.

Bandini filed a motion challenging the November 2004 order. Nominally, the motion was filed pursuant to section 663 as a motion to vacate a judgment. However, in substance, the motion did not ask the trial court to vacate a judgment. Instead, it sought to have the trial court reconsider the November 2004 order. Bandini argued that section 473, subdivision (d), did not authorize the trial court to set aside the attorney fees award and requested that the award be reinstated.

The trial court denied the motion to vacate in a March 9, 2005 minute order, incorporating the reasons it had stated during the hearing of the motion. During the hearing, the trial court explained that it was denying the motion to vacate because Bandini's motion was not a proper motion to vacate a judgment, as it was not directed at any judgment. Instead, Bandini's motion was in substance a motion for reconsideration of the November 2004 order, but Bandini had not satisfied the procedural requirements for a motion for reconsideration. Further, the trial court stated that it continued to believe that it had authority to set aside the attorney fees award under section 473, subdivision (d), and thus even if Bandini's motion had properly challenged the merits of the November 2004 order, it would not alter its ruling.

Bandini filed a notice of appeal from the trial court's March 9, 2005 order. Borgen filed a cross-appeal from the November 2004 order, arguing that the trial court erred in denying the portion of her motion that sought relief from the attorney fees award under sections 1008 and 473, subdivision (b). Borgen has made clear to us that she filed her cross-appeal only to protect her position in the event that Bandini prevails in her appeal. Borgen has also moved to dismiss Bandini's appeal as untimely.

II

DISCUSSION

A

Borgen's Motion to Dismiss Bandini's Appeal

Borgen moves to dismiss Bandini's appeal on the basis that it was not timely filed. She argues that under California Rule of Court, rule 3(b),^[3] a notice of appeal from a motion to vacate a judgment must be filed within 30 days after the superior court clerk mails the order denying the motion. Here, Bandini filed her notice of appeal on May 6, 2005, which was more than 30 days after March 9, 2005 -- the date the superior court clerk mailed the order.

We reject Borgen's argument because it is based on a misreading of rule 3(b). Rule 3(b) provides:

"If, within the time prescribed by rule 2 to appeal from the judgment, any party serves and files a valid notice of intention to move -- or a valid motion -- to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:

"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

"(2) 90 days after the first notice of intention to move -- or motion -- is filed; or

"(3) 180 days after entry of judgment."

Rule 3(b) thus extends the time to appeal from the judgment when a motion to vacate the judgment has been filed. Rule 3(b) does not serve to limit the time in which a party must appeal from a motion to vacate a judgment, which may be appealed separately from the judgment. (Howard v. Lufkin (1988) 206 Cal.App.3d 297, 301 [order denying section 663 motion is appealable]; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 663 [same].)

Rule 2(a), which sets forth the general deadline by which an appeal from a judgment must be filed, also governs the deadline for appealing from a postjudgment order, such as a motion to vacate a judgment. (See rule 40(c) [the term "judgment" as used in rule 2, which governs the time to file an appeal from a judgment, "includes any judgment or order that may be appealed"]; Socol v. King (1949) 34 Cal.2d 292, 297 [the time period to appeal from an order denying a motion to vacate a judgment should be calculated separately from the time to appeal from the judgment, and was timely when filed 60 days after the order].) Under rule 2(a) a notice of appeal must be filed within the earliest of (1) 60 days after the superior court's mailing of notice of the judgment or appealable order, (2) 60 days after service of the appealable judgment or order by a party, or (3) 180 days after entry of the judgment or order. Here, Bandini's May 6, 2005 notice of appeal was filed within 60 days of the superior court's March 9, 2005 mailing. Thus, the appeal is timely, and we accordingly deny Borgen's motion to dismiss the appeal.^[4]

B

Bandini's Appeal

Bandini's appeal focuses exclusively on the trial court's March 9, 2005 order. Bandini contends that the trial court lacked authority under section 473, subdivision (d) to issue the relief set forth in the November 2004 order, and that the trial court thus erred in denying her motion to vacate that order. She argues that section 473, subdivision (d), gives the court authority to correct clerical mistakes, but the attorney fees award was not a clerical mistake.^[5] For the following reasons we conclude that the trial court properly denied Bandini's motion.

As we have discussed, the trial court set forth two independent bases for its ruling in the March 9, 2005 order. First, it ruled that Bandini's motion to vacate was not a proper motion to vacate under section 663 because Bandini did not seek to modify a judgment. Second, the trial court reaffirmed the conclusion it had reached in its November 2004 order: The attorney fees award was void, and void orders may be set aside under section 473, subdivision (d). As we explain, we agree with both grounds set forth by the trial court for its March 9, 2005 order, and we accordingly affirm.

1. Bandini's Motion Was Procedurally Improper

We agree with the trial court that Bandini's motion was not properly brought under section 663.^[6] Section 663 provides:

"A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

"1. 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.

"2. A judgment or decree not consistent with or not supported by the special verdict."

Section 663 "empowers a trial court, on motion of '[a] party . . . entitl[ed] . . . to a different judgment' from that which has been entered, to vacate its judgment and enter 'another and different judgment.' " (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203.) "It is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the court or jury or which are otherwise uncontroverted." (Ibid.)

Here, section 663 does not apply because Bandini was not seeking to have the trial court enter a different judgment. Instead, as Bandini expressly stated in her motion, she requested that the court "vacate the [November 2004 order]" and "resurrect the . . . order granting . . . attorney's fees." Although Bandini's motion was labeled as a motion to vacate under section 663, in substance it was a motion for reconsideration. Accordingly, it should have been brought under section 1008, but was not.^[7] The trial court thus properly denied Bandini's motion because it was procedurally improper.

2. The Trial Court Had the Authority Under Section 473, subdivision (d)

to Set Aside the Attorney Fees Award

The trial court also correctly concluded that section 473, subdivision (d) gave it the authority to set aside the attorney fees award.

Section 473, subdivision (d), states: "The 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, and may, on motion of either party after notice to the other party, set aside any void judgment or order." Focusing only on the portion of section 473, subdivision (d), that gives the trial court the authority to correct clerical mistakes, Bandini argues that the attorney fees award should not have been set aside because it did not reflect a clerical mistake. As we explain, we reject this argument because Bandini overlooks the additional portion of section 473, subdivision (d), that the trial court relied on giving the court authority to set aside void orders.

We begin our analysis of the trial court's application of section 473, subdivision (d), by focusing on the original basis for the attorney fees award. That award was based on the attorney fees provision in the June 2003 judgment. The trial court purported to enter the June 2003 judgment based on the parties' in‑court settlement under section 664.6, which provides that "[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. . . ."

Case law is clear that a trial court may enter a stipulated judgment under section 664.6 only to the extent that the terms of the settlement were agreed to on the record by the parties or in writing signed by both parties. (See, e.g., Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176; Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1708; Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 551.) "Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement." (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) Here, however, the parties did not agree to the attorney fees provision on the record or in a signed writing. Thus the trial court was not authorized by section 664.6 to include that provision in the June 2003 judgment, on which it based the attorney fees award.^[8]

A judgment entered under section 664.6 is void to the extent that it exceeds the court's authority. (Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 529 [stipulated settlement not signed by the parties was not a valid basis for a judgment under section 664.6, and the judgment was thus in excess of the court's jurisdiction and void].) Thus, the attorney fees provision in the June 2003 judgment was void. Further, an order that gives effect to a void judgment is also void. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1240.) Because the attorney fees award gave effect to a void portion of the June 2003 judgment, it too is void.

Section 473, subdivision (d) provides that "[t]he court may, upon motion of the injured party, or its own motion . . . set aside any void judgment or order." Here, the trial court properly exercised its authority to set aside a void order when it set aside the void attorney fees award. Accordingly, we conclude that the trial court correctly denied the motion to vacate on the independent ground that it did have the authority under section 473, subdivision (d) to set aside the attorney fees award.

C

Borgen's Cross-appeal

Borgen's cross-appeal challenges the portion of the November 2004 order that denied her motion for relief from the attorney fees award to the extent the motion was premised on sections 1008 and 473, subdivision (b). Borgen states that she has filed the cross-appeal as a protective measure in the event that we reverse the trial court's March 9, 2005 order.

In light of our affirmance of the trial court's March 9, 2005 order, Borgen's cross-appeal is moot, and we dismiss it without reaching the merits. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 510, 546 [dismissing protective cross-appeal as moot upon affirmance of opposing party's appeal].)

DISPOSITION

The motion to dismiss Marty Bandini's appeal is denied. The trial court's March 9, 2005 order is affirmed. Linda Borgen's cross-appeal is dismissed as moot. Costs are awarded to Linda Borgen.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Attorneys.

^[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

^[2] At the May 19, 2003 hearing, the court adjourned the hearing to allow the parties and their attorneys to try to agree on a writing reflecting the settlement. After meeting to attempt to accomplish that task, the parties and their attorneys returned to the courtroom, but the parties were not able to sign an agreement at that time. Nor did the parties agree on the record to any additional settlement terms.

^[3] All further rule references are to the California Rules of Court.

^[4] Borgen has also filed a motion to strike a portion of Bandini's reply brief because it allegedly contains inaccuracies and factual statements unsupported by the record. We hereby deny the motion. Instead, we have taken note of the items discussed in the motion as we reviewed the record.

^[5] In her appellate briefing, Bandini addresses the trial court's authority to set aside the attorney fees award, but she does not address the trial court's authority to set aside the attorney fees provision in the September 2003 judgment.

^[6] We note that in her appellate briefing, Bandini ignores the issue of whether the motion to vacate was a proper motion under section 663.

^[7] Further, even if the motion had been properly designated a motion for reconsideration under section 1008, it was untimely as it was not brought within 10 days of the date that Bandini was served with notice of the order as required by section 1008, subdivision (a). Further, Bandini made no attempt, as required by section 1008, to establish "different facts, circumstances, or law" to support reconsideration of the November 2004 order.

^[8] At oral argument, counsel for Bandini argued that the May 19, 2003 hearing showed that the parties had agreed to an attorney fees provision as required by section 664.6. We disagree. At no time during the May 19, 2003 hearing did the parties sign a written agreement containing an attorney fees provision or state their agreement on the record to such a provision.