Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Super. Ct. No. SD033114, John R. Smiley, Judge
Vicki Roberts, for Appellant.
Susan H. Razkin, for Respondent.
YEGAN, J.
Arthur A. Andelson appeals from a judgment on reserved issues in the dissolution of his marriage to Elizabeth M. Andelson, respondent. Appellant contends that the trial court (1) erroneously denied his motion to rescind a settlement agreement and (2) abused its discretion by fashioning a judgment that is "an inconsistent, vague, and ambiguous mishmash that the court simply slapped together." We dismiss the appeal because the notice of appeal was not timely filed.
In his opening brief, appellant states: "This appeal is from the order denying the motion to rescind [the settlement agreement] as well as the judgment the court entered...." During oral argument, appellant's counsel made clear that her client is appealing only from the judgment. The order denying the motion to rescind is a nonappealable interlocutory order that is reviewable on appeal from the judgment. (See Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293.)
Procedural Background
In April 2008 the parties entered into an oral settlement agreement in open court. In November 2009 appellant moved to rescind the settlement agreement. On December 22, 2009, the trial court denied the motion and ordered respondent's counsel to prepare a judgment on reserved issues. The court directed counsel to attach various exhibits to the judgment, including a copy of the minute order for proceedings conducted on April 4, 2008. On December 23, 2009, the court entered judgment. The terms of the judgment are set forth in exhibits A through E, which are attached to the judgment. On December 23, 2009, the court clerk mailed to the parties notice of entry of the judgment on reserved issues.
On December 28, 2009, appellant moved to vacate the judgment pursuant to Code of Civil Procedure section 663. The grounds for the motion were that the judgment included duplicate copies of Exhibit C and an incorrect copy of Exhibit D. Exhibit D is the court's minute order for proceedings conducted on April 4, 2008. The minute order originally stated that a contempt complaint filed against appellant had been "dismissed without prejudice, based on the one dismissal rule which applies to all misdemeanors." (Italics added.) On July 14, 2008, more than one year before the entry of judgment, the minute order was amended to substitute "with prejudice" for "without prejudice." A copy of the original "without prejudice" minute order had been mistakenly attached to the judgment as Exhibit D. Appellant alleged that he was making "a request to vacate the judgment and enter a new and different judgment to correct the above errors."
All statutory references are to the Code of Civil Procedure.
A hearing on appellant's motion was conducted on January 26, 2010. At the hearing, the court did not vacate the judgment. The court accepted the parties' stipulation that the judgment be "reformed" by removing one of the duplicate copies of Exhibit C and by substituting the amended "with prejudice" minute order for the original "without prejudice" minute order attached as Exhibit D. On February 2, 2010, appellant mailed notice of the ruling to respondent. On March 24, 2010, appellant filed a notice of appeal from "the Judgment... entered December 23, 2009, as modified on January 26, 2010."
The Notice of Appeal Was Not Timely Filed
"Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must dismiss the appeal. [Citation.]" (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582; see also Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
Appellant's notice of appeal was required to be filed no later than 60 days after the court clerk mailed to the parties notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1).) Notice was mailed on December 23, 2009. Thus, the last day for filing the notice of appeal was Monday, February 22, 2010. The notice of appeal was not filed until March 24, 2010.
All references to rules are to the California Rules of Court.
The notice of appeal would have been timely filed if the amendment of the judgment on January 26, 2010, had started the running of a new appeal period. But this was not the case. " 'The effect of an amended judgment on the appeal time period depends on whether the amendment substantially changes the judgment or, instead, simply corrects a clerical error.' [Citation.] 'When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment..., the amended judgment supersedes the original and becomes the appealable judgment (there can only be one "final judgment" in an action...). Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment.' [Citation.]" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) On the other hand, an amendment of a judgment that corrects a clerical error does not start the running of a new appeal period. "Changes which correct errors, mistakes and omissions made through inadvertence, but do not involve the exercise of the judicial function, are considered corrections of clerical errors that leave the original judgment intact. [Citation.]" (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 744.) " ' "Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. [Citations.]" ' [Citation.]" People v. Davidson (2008) 159 Cal.App.4th 205, 210.)
The amendment of January 26, 2010, did not substantially modify the judgment. The amendment removed a duplicate copy of Exhibit C and substituted an amended minute order for the original minute order attached as Exhibit D. The attachment of the wrong minute order as Exhibit D was an error made inadvertently, not " ' "advertently in the exercise of judgment or discretion." ' " (People v. Davidson, supra, 159 Cal.App.4th at p. 210.) In his opening brief, appellant alleges: "Wife's [respondent's] counsel took the responsibility of preparing the 'judgment' as ordered by the court... and (we believe inadvertently) appended incorrect exhibits." Thus, the amendment of the judgment corrected clerical errors and left the original judgment intact.
During oral argument, appellant's counsel asserted that the amendment of the judgment is "physically clerical, but the effect is substantive." We disagree. If a substantive modification had occurred, it would have been on July 14, 2008, more than one year before the amendment of the judgment. On that date the minute order was amended to change the dismissal of the contempt complaint from a dismissal "without prejudice" to a dismissal "with prejudice."
But the reporter's transcript of the proceedings conducted on April 4, 2010, when the dismissal was ordered, shows that the amendment of the minute order was not a substantive modification. On April 4, 2010, the court stated: "The contempt filed February 25, 2008... is dismissed. The Court regards that as a dismissal with prejudice, applying the one-dismissal rule which applies to all misdemeanors." (Italics added.) The clerk, therefore, mistakenly recorded the dismissal as "without prejudice" instead of "with prejudice." This unquestionably was clerical error. "Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. [Citation.]" (People v. Camacho (2009) 171 Cal.App.4th 1269, 1273.) Since the amendment of the minute order was a correction of clerical error, it follows that the "reformation" of the judgment to substitute the amended minute order for the original one was also a correction of clerical error.
"Misdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge." (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.)
Moreover, the reporter's transcript of the proceedings conducted on April 4, 2008, is attached to the judgment as Exhibit B. As discussed above, the reporter's transcript shows that the dismissal of the contempt complaint was "with prejudice." Where there is a conflict between a minute order and the reporter's transcript, "the reporter's transcript generally prevails as the official record of proceedings [citation]...." (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 570.) Thus, the substitution of the amended minute order for the original one could not have modified the judgment because the reporter's transcript (Exhibit B) prevailed over the original minute order (Exhibit D).
Furthermore, the amendment of the minute order is irrelevant to the issues on appeal. " '[I]f a party can obtain the desired relief from a judgment before it is amended, he must act - appeal therefrom - within the time allowed after its entry.' " (Stone v. Regents of University of California, supra, 77 Cal.App.4th at p. 744.) Appellant could have obtained the desired relief from the judgment before it was amended on January 26, 2010. Therefore, he was required to timely appeal from the original judgment entered on December 23, 2009. (See ECC Const., Inc. v. Oak Park Calabasas Homeowners Ass'n (2004) 122 Cal.App.4th 994, 1003, fn, 5 ["Inasmuch as the amendment changed the amount of damages only and did not otherwise alter the bases for defendant's appeal, defendant was required to appeal from the original judgment, not wait for the amended judgment"].)
Pursuant to rule 8.108(c), a "valid" motion to vacate the judgment would have extended the time for filing the notice of appeal. But appellant's motion to vacate was not valid. "A 'valid' motion to vacate, for purposes of extending time for filing a notice of appeal, means 'a motion based on some recognized grounds for vacation: it cannot be stretched to include any motion, regardless of the basis for it.' [Citation.] Section 663 lists two grounds for granting a motion to vacate: 'A judgment or decree... 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 [or] [¶] (2) A judgment or decree not consistent with or not supported by the special verdict.' (§ 663, subds. (1) & (2)....)" (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1574, italics omitted.) Neither of these grounds applies to appellant's motion to vacate.
Rule 8.108(c) provides: "If, within the time prescribed by rule 8.104 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."
Even if appellant's motion had constituted a valid motion to vacate, his notice of appeal would still have not been timely filed. A valid motion to vacate extends the time to appeal for "30 days after... a party serves[] an order denying the motion or a notice of entry of that order." (Rule 8.108(c)(1).) On February 2, 2010, appellant served notice of entry of the court's order denying the motion to vacate. The 30-day period expired on March 4, 2010, 19 days before the notice of appeal was filed.
The notice states that "the court granted the motion and reformed said judgment that was entered on December 23, 2009 by replacing the erroneous Exhibit D with the correct Exhibit D." Although the notice wrongly states that "the court granted the motion, " the clear implication of the notice is that the motion to vacate was denied. A judgment is not vacated if it is merely "reformed" to correct a clerical error.
Disposition
The appeal is dismissed. Respondent shall recover her costs on appeal
We concur: GILBERT, P.J., PERREN, J.