Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. PR165892
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Attorney Victoria Tran Sood was appointed by the court to represent the conservatee, Emmanuela Genise, in this conservatorship proceeding. Emmanuela had been diagnosed with dementia and her five adult children were disputing among themselves about various matters from their mother’s testamentary documents to whether she could be removed from the assisted living facility where she resided to whether one of the siblings should continue to live rent free in the family home. A global settlement among all parties was ultimately reached and approved by the court, which then discharged Tran Sood as Emmanuela’s attorney.
As Emmanuela and Roland share the last name Genise, for clarity and convenience we will refer to them by their first names and mean no disrespect in doing so.
The court also simultaneously entertained Tran Sood’s petition for payment of $23,441.03 in attorney fees and costs for her representation of Emmanuela. Roland Genise, as trustee of his mother’s trust, filed a written objection to payment of any fees over $7,500. At the hearing on the petition, Tran Sood requested that the matter of her fees and costs be continued to allow her to respond to Roland’s objection, but she asked if payment of the undisputed $7,500 could be made pending the court’s resolution of the balance of her fee request. From the bench, the court confirmed that this payment “on the account” could be made. The court’s written order approved immediate payment to Tran Sood of $7,500 and set a later hearing to address the balance of her fee request, as she had wanted.
Tran Sood filed a reply to Roland’s objection and sought additional fees for doing so, for a new total of fees and costs of $27,417.35. After the matter was submitted, the court signed an order approving payment of $15,000 in fees and costs to Tran Sood. But the order did not make clear whether that amount included or was in addition to the $7,500 already paid. Roland’s counsel sought clarification of the order by letter to the judge, who verbally indicated through his clerk that the $15,000 was inclusive of the $7,500 already paid. Counsel then submitted a proposed clarifying order that directed a total of $15,000 to be paid to Tran Sood, less the $7,500 already paid.
The court signed the order, which was filed and from which Tran Sood now appeals. She contends that the court had no authority to issue the order as it represented a judicial, as opposed to a clerical, correction to a prior order and, further, that such a correction could not be made in the absence of a noticed motion. We reject these contentions, which, on this record, border on the frivolous, and affirm the order.
We combine the background facts and procedure as is fitting here.
Emmanuela executed a will and, with her now deceased husband, a trust in 1990. She executed an advance health care directive and a durable power of attorney for asset management in 2008. By around June 2009, Emmanuela appeared to her adult children to lack the capacity to manage her own finances and to care for herself. But that month, she executed an amendment to the trust. In October 2009, she was diagnosed with dementia. She then moved out of the family home and was placed into an assisted living facility. In November 2009, she amended the durable power attorney for asset management. Her estate was then valued at approximately $1,322,368. At that point, Roland, as trustee, petitioned the court for the appointment of a conservator over Emmanuela and sought a restraining order against his sister, Lisa, “to stop elder abuse or dependent adult abuse.”
On December 9, 2009, the court appointed Tran Sood to represent Emmanuela with respect to the appointment of a permanent conservator, her placement in a secured facility, the administration of medication for dementia, and a review of her estate planning documents.
Emmanuela’s five adult children, only two of whom live in the area, continued to dispute among themselves over aspects of her placement and care, the proper use of her home and whether one child could continue to reside there rent free, and the validity of the 2009 amendments to Emmanuela’s estate planning documents. In particular, they disagreed about the meaning of language in a stipulated court order that affected whether Emmanuela was precluded from being “remove[d]” from the facility where she resided for purposes of a social visit or outing or whether this provision only disallowed a permanent change in her residence while permitting her to occasionally leave the facility. This disagreement caused Tran Sood to expend time and services dealing with her client’s children and petitioning the court for clarification as to the meaning of the stipulated order—an effort the court characterized at a hearing as overcomplicating the matter.
All parties ultimately entered into a global settlement, which included an alternative dispute resolution method for dealing with any future disputes and an agreement that only the pre-2009 estate-planning documents were valid, both of which agreements brought value to the settlement. Tran Sood collectively petitioned the court for approval of the settlement, for discharge as counsel, and for payment of her fees and costs in the amount of $23,441.03, which included $1,200 as estimated fees to be incurred in connection with the petition. Roland filed a written objection to the amount of fees requested by Tran Sood and contended that any amount over $7,500 was excessive.
The court conducted a hearing on the petition on May 4, 2010 and approved the settlement and discharge of Tran Sood as Emmanuela’s court-appointed counsel. On the issue of her fees, Tran Sood asked the court to approve payment of the undisputed $7,500 and to continue the hearing as to the balance to permit her to respond in writing to Roland’s objection. She requested that the continued hearing be evidentiary in nature and she reserved the right to offer expert opinion testimony. Roland objected to this procedure as unnecessary and because of the likelihood it would lead to even more fees.
The court also considered expert opinion unnecessary on the question of the reasonable value of Tran Sood’s fee and perceived her request for a further hearing as “undercut[ting]” her argument that her time for which she was billing was being reasonably spent and that her professional services were reasonable, necessary, and appropriate. At the conclusion of the hearing, the court orally confirmed that the combined petition filed by Tran Sood had been granted in part in that the settlement had been approved and she had been discharged but that the matter of her fees was being continued at her request. Counsel for Roland asked, “And, Your Honor, in the meantime no payment on the account?” The court responded that its order was to then pay Tran Sood the undisputed $7,500 and that her “request for further fees is to be taken up on May 18th.” The court’s written order after hearing directed Roland, as trustee, to pay Tran Sood “the sum of $7,500 for legal services rendered and the costs incurred in representing Emmanuela Genise. Any request for further fees to be taken up on 5-18-10.”
Tran Sood filed a 137-page written reply to Roland’s objection, which included expert opinion testimony on the reasonableness of her hourly rate and requested fees. The total fees and costs she requested increased to $27,417.35 for her preparation of the reply and additional amounts for the prior hearing. This total included the $7,500 that Tran Sood had already received. As to the amount she considered still owed, her reply noted that Roland had previously been ordered to pay her the undisputed $7,500 and “[t]herefore, the remaining amount owed is $19,917.35.” Tran Sood also submitted a proposed order directing payment to her of this sum, which, as noted, was the full balance she requested after subtraction of the $7,500 already paid. The court interlineated the amount stated in the order, directing Roland to pay Tran Sood within five days “the sum of $15,000 (FIFTEEN THOUSAND DOLLARS) for legal services rendered and the costs incurred in representing Emmanuela Genise.” The court did not specify whether this amount included or was in addition to the $7,500 already paid. The order was signed on May 18, 2010 and filed two days later, when the clerk also served it by mail.
It is not clear from the record if the court held a further hearing before signing the order or whether the matter was submitted after Tran Sood filed her written reply. There is no reporter’s transcript of such a hearing in the record but the order still references a continued hearing on May 18, 2010.
On May 24, 2010, Roland’s counsel wrote a letter to the court seeking clarification as to whether the $15,000 directed to be paid by the court’s May 20th written order included the $7,500 already paid, leaving a balance of $7,500, or whether the $15,000 was in addition to this amount, for a total of $22,500. The letter was copied to Tran Sood.
There was apparently no response from the court by June 4, 2010, when Tran Sood wrote to Roland’s counsel demanding payment of $15,000, plus $49.32 in interest asserted to be accrued from the due date.
On June 8, 2010, Roland’s counsel wrote another letter to the court, this time referencing verbal confirmation from the judge’s clerk that the $15,000 in fees and costs approved by the May 20th order included the $7,500 already paid, leaving a balance owed to Tran Sood of $7,500. The letter enclosed a proposed “further order after hearing” reflecting this clarification of the prior order and asked the judge not to sign it for five days to allow Tran Sood to respond if she wished.
We interpret this as an effort to parallel rule 3.1312(a) & (b) of the California Rules of Court, which collectively provide for the prevailing party on a motion in a civil case to submit a proposed order to opposing counsel for approval as conforming to the court’s order and to wait five days before transmitting the proposed order to the court, together with any responses received.
The next day, June 9, 2010, the court signed, but did not file, the clarifying order, which made clear that Tran Sood was to receive a total of $15,000, not $22,500. It said, in relevant part, that “[t]he previously ordered sum of $15,000 owed to Victoria Tran Sood, as stated in the [May 20th order], is the total sum due for all legal services rendered and the costs incurred in representing Emmanuela Genise” and that as Roland “has already paid the sum of $7,500 to Victoria Tran Sood (pursuant to the May 4, 2010, Order), the net balance now owed to her is $7,500.”
The following day, June 10, 2010, Tran Sood wrote her own letter to the court, requesting it to disregard Roland’s counsel’s letter and proposed order and contending that a party who wants to “change or correct a court’s order must follow the specific procedures provided by law, ” which did not include writing the court a letter to request a correction.
The court filed the clarifying order that same day, June 10, 2010. It is not clear from the record whether it did so before or after receiving Tran Sood’s letter.
Tran Sood timely appealed from the June 10, 2010 clarifying order.
DISCUSSION
I. Appealability
Initially we address whether the June 10, 2010 clarifying order is appealable. Tran Sood contends that it is under Code of Civil Procedure section 904.1, subdivision (a)(1), which makes appealable any order appealable under the Probate Code, and Probate Code section 1300, subdivision (e), which makes appealable any order fixing, authorizing, allowing, or directing the payment of compensation or expenses to an attorney in a probate matter. (Leader v. Cords (2010) 182 Cal.App.4th 1588, 1594 [appeal lies from order authorizing or refusing to authorize or allow payment of compensation to attorney in probate matter].)
On the face of it, the order appealed from might be argued to have fixed or authorized payment to Tran Sood—the $7,500 balance remaining after subtraction of the $7,500 already paid. But we are convinced that the prior May 20th order fixing fees and costs at $15,000 was the actual order that determined the total amount of her compensation and that the later order merely clarified that order but did not itself fix, authorize, allow, or direct payment within the meaning of Probate Code section 1300, subdivision (e). Still, an order clarifying a judgment has been characterized as appealable as an order after final judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). (Lezine v. Security Pacific Fin. Services, Inc. (1996) 14 Cal.4th 56, 62, fn. omitted [appeal characterized as being from the order and “from the judgment as clarified”].) We are accordingly satisfied that the clarifying order in this case is appealable and we proceed to the merits.
II. The Clarifying Order Corrected a Clerical, Not Judicial, Error
Tran Sood attacks the June 10th order on the basis that it made a judicial, not clerical, correction to the amount of compensation to be paid to her and that it did so outside of the available statutory procedures for making such a change in a judgment or order—a motion for new trial under Code of Civil Procedure section 656 et seq. or a motion to vacate judgment under Code of Civil Procedure section 663, for example. We review the question for abuse of discretion, such deference being particularly apropos to the circumstance in which a judicial officer who corrects a clerical error is the same one who presided when the error was made. (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035 (Tobias).) It is primarily for the trial judge to determine whether the judgment or order as written accurately expressed his or her decision, and this “determination is entitled to substantial consideration.” (Miller v. Wood (1963) 222 Cal.App.2d 206, 211; Carpenter v. The Pacific Mutual Life Insurance Company of California (1939) 14 Cal.2d 704, 708 (Carpenter).) “The understanding of the court, not that of the parties, is the determinative factor.” (Russell v. Superior Court (1967) 252 Cal.App.2d 1, 8.)
Courts have inherent power to correct clerical errors so that their “records conform to the facts and speak the truth.” (Carpenter, supra, 14 Cal.2d at p. 707.) This rule applies after final judgment and regardless of the lapse of time or whether the clerk, counsel, or the court itself made the error. (Ames v. Paley (2001) 89 Cal.App.4th 668, 672; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 [“Clerical error, unlike judicial error, is correctable at any time”].) This inherent judicial power to correct clerical error is also confirmed by statute. Thus, Code of Civil Procedure section 473, subdivision (d), provides in relevant part that 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, ...” (See also Tobias, supra, 208 Cal.App.3d at p. 1034 [court’s power to correct clerical error is both inherent and statutory]; Bastajian v. Brown (1941) 19 Cal.2d 209, 214 [same].)
But acknowledging the court’s power to correct clerical errors does not illuminate what is a clerical error that may be corrected under this power and what is instead a judicial error that may not. “The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether it was the deliberate result of judicial reasoning and determination. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. [Citations.]” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238 (Rochin); see also In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).) Clerical error includes “inadvertent errors made by the court ‘which cannot reasonably be attributed to the exercise of judicial consideration or discretion.’ [Citations.]” (Tobias, supra, 208 Cal.App.3d at p. 1034; Bowden v. Green (1982) 128 Cal.App.3d 65, 71 (Bowden).) In contrast, “judicial error is the deliberate result of judicial reasoning and determination.” (Tobias, supra, at p. 1035.) “ ‘The test is simply whether the challenged judgment was made or entered inadvertently (clerical error) or advertently (judicial error).’ [Citation.]” (Bowden, supra, 128 Cal.App.3d at p. 71.) In determining whether an error is clerical or judicial, “ ‘great weight should be placed on the declaration of the judge as to his intention in signing the [judgment].’ [Citation.] ‘... The issue is one of the judge’s intent, and the best evidence is the judge’s own statement, either express or implied from the order of correction....’ [Citation.]” (Bowden, supra, 128 Cal.App.3d at pp. 71-72.)
“ ‘The term “clerical error” covers all errors, mistakes, or omissions which are not the result of the exercise of judicial discretion. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected....’ [Citation.]” (Tobias, supra, 208 Cal.App.3d at p. 1035.) But “ ‘[a]ny attempt by a court, under the guise of correcting clerical error, to “revise its deliberately exercised judicial discretion” is not permitted. [Citation.]’ ([Candelario, ] supra, 3 Cal.3d at p. 705.)” (Tobias, supra, 208 Cal.App.3d at p. 1035.) Thus, a court may not amend a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error, unless the record clearly demonstrates that the correction was not the result of the exercise of judicial discretion. (Candelario, supra, 3 Cal.3d at p. 705.) If the original judgment or order rendered accurately expresses the court’s intent when the judgment or order was rendered, it cannot be corrected by amendment, but instead must be rectified by the ordinary procedures for attack on a judgment or order, such as by motion to vacate or the taking of an appeal. But it is clear that the signing of a judgment or order that does not “express the actual judicial intention of the court is clerical rather than judicial error.” (Tobias, supra, at p. 1035; Marriage of Kaufman, supra, 101 Cal.App.3d at p. 151.)
Applying these principles here, it is indubitable that the clarifying order was just that and that the court acted well within its power to issue it to correct what was revealed as a clerical error in the prior May 20th order—an inadvertent ambiguity as to whether the $15,000 directed to be paid to Tran Sood was in addition to or inclusive of the $7,500 already paid. From a review of the record, there is no doubt that the court by its May 20th order intended to fix fees and costs at $15,000, not $22,500, and that the clarifying order reflected not a further exercise of the court’s consideration and discretion but rather an effort to make its already considered judicial intentions clear once the ambiguity was pointed out.
First of all, a review of the record reveals the court’s expressed perception on two occasions that Tran Sood was either overcomplicating matters by her representation or spending time in the course of it that was not reasonable, necessary, and appropriate—gilding the lily, one might say. In specific, the court questioned her efforts, billed all the while, to buttress her petition for fees in countering Roland’s objection. The court’s observations and expressions in this regard support the conclusion that it originally intended to award something substantially less than the full amount requested in fees, i.e., $15,000, not $22,500, in its May 20th order and that the later, clarifying order simply reflected this intention.
Secondly, the record makes clear that the court directed payment of the initial, undisputed $7,500 “on the account, ” at Tran Sood’s request, and that the continued hearing was intended to address the total sum she requested, including the undisputed $7,500, as the May 20th order directing payment of $15,000 was intended to reflect. The court’s approval of the initial $7,500 payment was not a discrete, separate, and piecemeal matter such that the later order would naturally direct payment of only additional sums. Once Tran Sood filed her lengthy reply to Roland’s objection to her fee request, the court had the matter of the total in fees and costs requested before it to consider and exercise its discretion to award what was reasonable under all the circumstances. The court did so, as reflected in its May 20th order fixing the total amount of fees and costs at $15,000. Thus, it is clear that the court inadvertently neglected to indicate in its May 20th order that this total was inclusive, and not in addition to, the $7,500 already paid, creating the ambiguous clerical error the clarifying order was intended to correct. That the court signed the clarifying order to this effect, an implied expression of its view that the ambiguity in the prior order was a clerical rather than judicial error, supports that the court’s actual intention when exercising its discretion in the May 20th order was to fix the total amount of fees and costs awarded at $15,000, not $22,500. As noted, we accord great deference to the trial court’s determination that an error is clerical, not judicial, particularly when it is the same judge rendering both orders. (Tobias, supra, 208 Cal.App.3d at p. 1035; Millerv. Wood, supra, 222 Cal.App.2d at p. 211.) And there is nothing in the record to suggest the contrary—that the court intended to award a total of $22,500 in fees and costs and was only determining amounts in addition to the $7,500 already paid on account when it issued its May 20th order.
Tran Sood contends that because, in her view, the clarifying order “rewr[ote]” the prior order, it necessarily reflected the court’s revised, deliberate exercise of discretion. Not so. As we have observed from the record, the clarifying order merely conformed the written orders to the court’s previously considered intentions, free of inadvertent ambiguity. In the same vein, Tran Sood argues that because from her point of view, the clarifying order substantially modified the prior order and materially altered her rights, it could not have been clerical in nature. But the May 20th order was merely ambiguous. It did not award Tran Sood $15,000 in addition to the $7,500 previously paid, as she contends. On this record, it therefore cannot be said that the clarifying order substantially modified the prior order, materially altering Tran Sood’s rights. Instead, the order accurately reflected the court’s previously exercised discretion and intention to award her a total of $15,000, not an effort to correct a prior judicial error awarding more.
The record in this case distinguishes it from Candelario, on which Tran Sood relies. There, a criminal defendant was charged with sale of heroin and a prior felony conviction of possession of marijuana. The defendant admitted the prior conviction at arraignment, after previously denying it. At trial, he was convicted by a jury of the sale-of-heroin charge. The court’s judgment and abstract of judgment reflected the conviction on the substantive offense but not the defendant’s admission of the prior conviction allegation. A month later, the court filed an amended abstract of judgment, adding the admitted enhancement and thereby aggravating the defendant’s sentence. (Candelario, supra, 3 Cal.3d at pp. 704-706.) Because the omission of the prior conviction in the pronouncement of judgment could be inferred as an act of leniency, its absence “operates as a finding that the prior conviction was not true.” (Id. at p. 706, fn. omitted.) It therefore could not be presumed that the court’s failure to include the prior conviction in the judgment was inadvertent clerical error. The references in the record to the prior conviction did not point to the court’s intention to use it to aggravate defendant’s sentence, supporting that the amendment to the judgment was invalid as an attempt to correct a judicial, not clerical, error. (Id. at p. 707.)
As we have discussed, the record here, unlike Candelario, does support that the clarifying order was to correct a clerical error. And the correction did not substantially impair Tran Sood’s rights, unlike the defendant in Candelario, because there was no prior order here that approved total fees and costs to Tran Sood in the amount of $22,500 that was later reduced. There was only an order directing payment to her of $15,000, which was inadvertently ambiguous for its failure to account for the undisputed $7,500 previously ordered to be paid.
The court’s clarifying order, which expressed its prior actual, judicial intention in fixing fees and costs in the first instance, falls squarely within the definition of correcting a clerical error to conform to the order actually directed at the time it was rendered. (Code Civ. Proc., § 473, subd. (d).) The court thus did not abuse its discretion in issuing it. We accordingly and resoundingly reject Tran Sood’s contentions to the contrary.
II. The Clarifying Order Did Not Require a Noticed Motion
Tran Sood’s second line of attack targets the manner in which the clarifying order was issued. She contends that it was the product of ex parte communication by Roland’s counsel and that even if the order corrected a clerical error, a noticed motion was required because the error did not appear on the face of the record and it affected her substantial rights by reducing the amount originally awarded. Tran Sood is mistaken on both counts.
We have already concluded that the corrected error in this case, the inadvertent ambiguity in the May 20th order, was clerical and not judicial in nature. And as noted, Code of Civil Procedure section 473, subdivision (d) permits a court to correct a clerical error in a judgment or order, and to do so on its own motion. This power may be generally exercised by the court ex parte and without notice. (Carpenter, supra, 14 Cal.2d at pp. 707-708.) But the circumstances in which this power may be exercised without notice have been held to be limited to where (1) the clerical error appears on the face of the record; (2) the existence of the error is within the sole knowledge or memory of the judge; or (3) the statement on the subject in the decision is mere dictum. (Estate of Hultin (1947) 29 Cal.2d 825, 829-830 (Hultin).) Generally speaking, where the mistake must be proved by evidence or resolution of a factual question, a noticed motion is required to correct the error if substantial rights are involved. (Id. at p. 830; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 44 (Manson) [unless the clerical error appears on the face of the record, amendment to a judgment requires notice to parties whose rights would be substantially affected, a hearing, and presentation of evidence sufficient to make necessary factual determinations].)
We begin by observing that the clarifying order was not, strictly speaking, entered ex parte or the product of any nefarious ex parte communication with the court by Roland’s counsel. First, counsel sent the court a letter, copied to Tran Sood, pointing out the ambiguity in the May 20th order. Then, upon confirmation by the judge’s clerk of the court’s actual intention to have awarded a total of $15,000 in the May 20th order, counsel sent the court another letter with a proposed order clarifying the ambiguity, again copied to Tran Sood. The letter requested the court to wait five days before taking any action in order to permit Tran Sood to respond, which she did, asking the court to disregard the proposed order. In the interim, the court signed the clarifying order but it was not filed until June 10th, the same day Tran Sood corresponded with the court. As noted, it is not clear from the record whether the court filed the order before or after receiving Tran Sood’s letter. But in either case, Tran Sood had the opportunity to express her views to the court about the proposed clarifying order and this uncertainty about the sequence of events does not render the order a product of an ex parte communication. Under rule 7.10(a)(6) of the California Rules of Court, a written communication to the court that is copied to interested parties does not constitute an ex parte communication in a probate case, as this one is. (Cal. Rules of Court 7.10(a)(6) [ex parte communication in probate case includes written communications sent to the court without copies having been provided to other interested persons].) Although there was no noticed motion, Tran Sood had actual notice and an opportunity to respond to the proposed clarifying order, and she did so. Moreover, she did not seek to vacate the order in the trial court on the basis that it had been entered ex parte.
In any event, as noted, a noticed motion was required to enter the clarifying order correcting the clerical error—inadvertent ambiguity in the May 20th order—only if the error did not appear on the face of the record or was not solely within the judge’s knowledge and the correction substantially affected Tran Sood’s rights. (Hultin, supra, 29 Cal.2d at p. 830; Manson, supra, 176 Cal.App.4th at p. 44.) We have already concluded that the record as a whole supports only that the court originally intended to award Tran Sood a total of $15,000, not $22,500. While the error or ambiguity may not have appeared strictly on the face of the record, its existence was within the judge’s knowledge and memory, the same judge who issued the prior order. Finally, we have already concluded that the clarifying order did not substantially affect or materially impair Tran Sood’s rights because, contrary to her contention, it did not reduce the amount previously awarded. Instead, it merely clarified, without further deliberation or reconsideration, the court’s actual intention that was unfortunately and ambiguously expressed in the prior order. Under these circumstances, no noticed motion was required in order for the court to correct what was clearly a clerical error. (Code Civ. Proc., § 473, subd. (d); (Hultin, supra, 29 Cal.2d at p. 830; Manson, supra, 176 Cal.App.4th at p. 44.)
DISPOSITION
The June 10, 2010 clarifying order is affirmed.
WE CONCUR: RUSHING, P.J., DUFFY, J.