Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC335816, John Shepard Wiley, Jr., Judge. Affirmed as modified.
Lee B. Ackerman for Defendants and Appellants.
No appearance for Plaintiffs and Respondents.
OPINION
VOGEL, J.
This appeal challenges a stipulated judgment on the ground that it includes terms beyond the scope of the parties’ stipulation. We modify the judgment to delete the unauthorized terms and, as modified, affirm.
FACTS
A.
In January 2004, Alpine Pictures, Inc. and Icon, Inc. executed a joint venture agreement, pursuant to which they agreed to form Act I Entertainment for the development and distribution of television programs. Icon agreed to provide the exclusive services of its president, Glenn Aveni, and he assumed control of the day-to-day operations of Act I. Disputes arose and in March 2005 the parties agreed to terminate the venture.
In June 2005, Alpine Pictures sued Icon, Aveni, and Act I for breach of contract and various torts, seeking a formal dissolution of the joint venture, damages, an accounting, and injunctive relief. Icon answered and cross-complained against Alpine Pictures (and related entities included in our references to Alpine Pictures) for the same relief. Discovery ensued.
By the time the complaint was filed, Icon had been renamed Icon Television Music, Inc. (which the complaint alleged was Aveni’s alter ego). Our references to “Icon” are to both Icon entities, and our references to “Alpine Pictures” are to it and the related entities and people named in the cross-complaint (Alpine Pictures Inter-National, Inc., Advantage Music, LLC, Ryan Carroll, Roland Carroll, and Rene Torres).
The case settled at a mandatory settlement conference held on August 1, 2006, and the lawyers recited the terms of the settlement for the record which, as relevant, were that Icon would make three $12,500 payments to Alpine Pictures (on August 2, September 1, and October 2, 2006); if Icon defaulted, a stipulated judgment would be entered against Icon for $50,000 less any payments made; the complaint and cross-complaint would be dismissed upon completion of the payments; and the parties would pay their own attorney’s fees (“each side to pay his or its own attorney’s fees and costs”). All of the other parties expressly agreed on the record “to be bound” by the settlement terms stated to the court. With those assurances, the trial court dismissed the case but “retain[ed] jurisdiction to enforce the settlement agreement.”
B.
Icon breached the settlement agreement the day after it was made by failing to make the August 2 payment. Alpine Pictures gave the required notice of default and on August 11 moved ex parte for (1) entry of judgment for Alpine Pictures and against Icon in the amount of $50,000, (2) an order enjoining Icon from selling or otherwise disposing of its assets, and (3) attorney’s fees incurred in the enforcement of the stipulated judgment. Although Icon’s lawyer received notice of the ex parte application, he did not appear for the hearing.
On August 11, the trial court signed Alpine Pictures’ proposed stipulated judgment which (1) awarded Alpine Pictures $50,000 plus interest at 10 percent per annum plus unspecified “costs of recovery including but not limited to attorney fees and costs,” and (2) enjoined Icon from disposing of its assets. The court’s August 11 minute order states that the judgment was signed and filed that date, but the record does not include a conformed copy of the judgment or anything else to show it was actually entered. Within the week, Alpine Pictures served notice of entry of judgment on Icon with a copy of the signed (but not filed) judgment attached.
On October 6, Icon filed a notice of appeal from the August 11 judgment. On November 7, the trial court filed a new version of the stipulated judgment, which states that it is a judgment entered “[p]ursuant to a mediated agreement by the parties,” and awards $50,000 to Alpine Pictures plus 10 percent interest plus the same unspecified “costs of recovery including but not limited to attorney fees and costs.” The November 7 judgment does not include the injunction.
Because Alpine Pictures has not filed a respondent’s brief, we consider this appeal based solely on the record and arguments presented by Icon. (Cal. Rules of Court, rule 8.220(a)(2).)
I.
Icon (concerned about the validity of its notice of appeal) contends its October 6 notice of appeal from the August 11 judgment stayed all proceedings in the trial court so that the court had no power to enter the November 7 stipulated judgment. We disagree. There can be only one judgment in a case (Harris v. Spinali Auto Sales, Inc. (1962) 202 Cal.App.2d 215, 219) and the only judgment in this case is the stipulated judgment actually entered on November 7. (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743-744.) In any event, there is no prejudice to Icon -- because we will treat its notice of appeal from the August 11 judgment as a premature but valid notice of appeal from the November 7 judgment (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 700), which has the added advantage of allowing us to treat Icon’s challenge to the injunction orders as moot (because they were properly excluded from the November 7 judgment).
II.
Icon contends the judgment must be modified to delete the award of “attorney fees and costs” as “costs of recovery.” We agree.
The parties agreed that “each side [was] to pay his or its own attorney’s fees and costs.” Because the stipulation placed on the record did not limit this provision to the costs and fees incurred up to the date of settlement, and because the stipulation contemplated enforcement issues, the only reasonable inference is that the parties agreed that each side would pay all of its own fees and costs, including those incurred in enforcing the settlement. If the parties had intended otherwise, they should have said so. (Harris v. Spinali Auto Sales, Inc., supra, 202 Cal.App.2d at p. 219.)
DISPOSITION
Page 2 of the November 7, 2006 Stipulated Judgment is modified by striking the words “and costs of recovery including but not limited to attorney fees and costs” and, as modified, affirmed. Icon is to pay its own costs of appeal.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.