Opinion
G053543
09-29-2017
GARDEN GROVE GALLERIA LLC, Plaintiff and Appellant, v. CATHAY BANK, Defendant and Respondent.
Lowe & Baik and Jeffre T. Lowe for Plaintiff and Appellant. Frandzel Robins Bloom & Csato, Thomas M. Robins III and Bruce D. Poltrock for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2010-00342212) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed. Lowe & Baik and Jeffre T. Lowe for Plaintiff and Appellant. Frandzel Robins Bloom & Csato, Thomas M. Robins III and Bruce D. Poltrock for Defendant and Respondent.
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INTRODUCTION
In 2014, judgment was entered in favor of Garden Grove Galleria, LLC (plaintiff) awarding over $11 million in damages against Cathay Bank (defendant) following a jury trial. The judgment provided that plaintiff would also recover "reasonable and necessary costs, in amounts to be determined pursuant to the Code of Civil Procedure, with interest thereon at 10% per annum from __________ until paid." Both parties appealed the judgment on grounds unrelated to the issue of interest. After those appeals were resolved, and over two years after the judgment had been entered, plaintiff filed a motion under section 473, subdivision (d) of the Code of Civil Procedure seeking to correct what it characterized as a clerical error by inserting the date of the jury's verdict (August 31, 2012) into the blank line in the judgment. The trial court denied the motion, reasoning that the blank line was the product of judicial action, not clerical action and thus Code of Civil Procedure section 473, subdivision (d) was inapplicable.
We affirm. The trial court did not err by denying the motion. Nothing in the record shows that the blank line failed to reflect the trial court's intent in pronouncing judgment. As the blank line was not the product of clerical error, the motion was properly denied.
BACKGROUND
In August 2012, plaintiff's claims for reformation of a construction loan agreement and promissory note and claim for breach of contract against defendant, and defendant's cross-claims (not at issue in this appeal), came to trial. After the first phase of the bifurcated trial, the court denied plaintiff's equitable claim for reformation. As relevant to the issues presented on appeal, the jury later returned a special verdict form showing the jury found in favor of plaintiff with regard to its breach of contract claim and awarded plaintiff $11,275,000 in damages against defendant.
In October 2012, plaintiff filed a motion for prejudgment interest and a proposed judgment. Three days later, the court clerk informed plaintiff's counsel that the proposed judgment was unacceptable and directed him to file an amended proposed judgment. A few weeks later, plaintiff filed an amended proposed judgment to which defendant did not file objections.
At the October 29, 2012 hearing on plaintiff's motion for prejudgment interest, defendant's counsel informed the court that defendant had filed three posttrial motions in the matter, which were set for hearing on January 14, 2013. The court ordered the hearing on plaintiff's motion for prejudgment interest continued to be heard on the same date as defendant's motions.
At the January 14, 2013 hearing, the court denied plaintiff's motion for prejudgment interest and defendant's motions for judgment notwithstanding the verdict, entry of decree of judicial foreclosure, and entry of judgment based upon equitable estoppel. The court also asked plaintiff's counsel to resubmit a proposed judgment. That same day, plaintiff filed a second amended proposed judgment. Defendant filed objections to plaintiff's second amended proposed judgment and submitted its own proposed judgment. In March 2013, plaintiff filed a nonopposition to defendant's proposed judgment.
In August 2013, plaintiff filed a motion for execution of a judgment after jury verdict. Defendant filed a response to the motion for execution of judgment, in which it stated it did not object to the judgment being entered, "but a Statement of Decision pursuant to Code of Civil Procedure section 632 is legally required before the judgment is signed." Defendant had filed a request for a statement of decision on January 22, 2013 with respect to the trial court's denial of its equitable claim in the first phase of the trial. Therefore, defendant contended, entry of judgment as requested by plaintiff was premature.
On February 24, 2014, the trial court signed a judgment awarding plaintiff $11,275,000 "plus reasonable and necessary costs, in amounts to be determined pursuant to the California Code of Civil Procedure, with interest thereon at 10% per annum from __________ until paid." The judgment stated defendant "shall take nothing by virtue of its cross-complaint" against, inter alia, plaintiff.
Defendant appealed from the judgment and plaintiff appealed from the trial court's postjudgment order denying its motion for attorney fees and granting defendant's request to strike costs. (Garden Grove Galleria, LLC v. Cathay Bank et al. (Nov. 6, 2015, G050394 & G051021) [nonpub. opn.].) After the two appeals were consolidated, a panel of this court affirmed the judgment and the denial of the postjudgment order. (Ibid.) In February 2016, the California Supreme Court denied defendant's petition to review this opinion.
In March 2016, defendant's counsel informed plaintiff's counsel that it was defendant's position that interest began to accrue on the judgment as of the date the judgment was signed in February 2014, and not as of the date of the verdict in August 2012. Plaintiff thereafter filed a "Motion to Correct Clerical Error in Judgment" pursuant to section 473, subdivision (d) of the Code of Civil Procedure. In its motion, plaintiff argued: "The proposed Judgment had a blank space . . . which provided [for] interest on the judgment—but the date was never entered by the Court. The correct date for interest on this Judgment is the date of the Jury's Verdict—August 31, 2012." Defendant filed an opposition to the motion.
In its minute order, the trial court denied the motion to correct a clerical mistake under section 473, subdivision (d) of the Code of Civil Procedure, stating: "Plaintiff moves to have the judgment in this case amended to include an award of interest accruing from the date of the verdict, which was August 31, 2012. Defendant Cathay Bank argues that interest cannot accrue before the entry of judgment, which occurred on February 24, 2014. This situation confirms the wisdom of Code of Civil Procedure section 664, which dictates that 'judgment must be entered by the clerk, in conformity with the verdict within 24 hours after the rendition of the verdict . . . .' There may be no other statute that is more frequently ignored than this one, but the present case presents an extreme example. The parties stipulated to a delay in this process; a series of inaccurate and/or incomplete proposed judgments were submitted and rejected by the court; the parties disagreed with the contents of proposed judgments that each submitted; and several post-trial motions were filed, which had the potential of altering the terms of the judgment. As a result, the time lapse between entry of the verdict and entry of the judgment has given rise to a significant amount of disputed possible interest.
"The defendant contends that this motion cannot be granted because the plaintiff has failed to show that there was any clerical mistake that is now a candidate for correction. The plaintiff announced at page 1, line 23 of its motion that 'This motion is based upon California Civil Code sec. 473.' (Because the Civil Code does not have a section 473, the parties and the court have assumed that the pertinent statute is in the Code of Civil Procedure.) CCP section 473(d) recites that 'The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.' The court has concluded that the absence of any date entered in the blank at page 4, line 28 on the Judgment signed February 24, 2014 did not constitute a 'clerical' error. A simple analysis would suggest that a 'clerical' error is distinct from 'judicial' action. In this case, mirabile dictu, the simple analysis is the approved approach. Among the cases addressing this distinction is Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117-118. See also People v. Niendorf (1962) 197 Cal.App.2d 594. The subject blank line is entirely the product of judicial action (or inaction). No clerk had anything to do with that act. There is not a shred of evidence that the court intended to award the interest that the plaintiff now seeks. In fact, the only judicial action on the issue of interest was its denial of the plaintiff's motion for an award of interest dating from the filing of this complaint. The time span covered by that motion necessarily included the period addressed in the present motion. Thus, the court then declined to award the very interest the plaintiff now seeks. The defendant here suggests that plaintiff's counsel could have instantly modified that earlier motion to shrink its scope when it became apparent upon hearing that the motion was doomed. Ah, well. Coulda, woulda, shoulda."
Plaintiff appealed.
DISCUSSION
A.
JUDICIAL AUTHORITY TO CORRECT CLERICAL ERROR IN A JUDGMENT AND
STANDARD OF REVIEW.
"'A court of general jurisdiction has the power, after final judgment, and regardless of lapse of time, to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that the records will conform to and speak the truth. [Citations.]' [Citation.]" (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 judicial power is codified at section 473, subdivision (d) of the Code of Civil Procedure which provides: "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 . . . ."
"Unless the challenged portion of the judgment was entered inadvertently, it cannot be changed post judgment under the guise of correction of clerical error." (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117 (Tokio).) "The controlling principle is that although clerical error may freely be corrected postjudgment, judicial error may be corrected only by normal procedures for attacking a judgment (motion for new trial, appeal, independent action in equity, etc.)." (Ibid.)
The issue in this appeal is whether the blank line in the judgment was a clerical error. Nevertheless, plaintiff's opening brief is devoted to analyzing the history of revisions to the California Rules of Court and their impact in the timing of interest accrual. That analysis would have been relevant in the context of proper postverdict and postjudgment motions or appellate review of rulings on such motions, but is not relevant to the issue of whether the blank line here constituted clerical error. In plaintiff's reply brief on appeal, it relies on Lang v. Superior Court (1961) 198 Cal.App.2d 16, 17-18, in which the appellate court denied an application for a writ of review or of prohibition challenging the trial court's grant of a motion to correct clerical error in the judgment, concluding that blank lines in that judgment were "obviously" clerical error. In contrast, in this case, the trial court expressly stated the blank line in the judgment was not clerical error. --------
"The test which distinguishes clerical error from possible judicial error is simply whether the challenged portion of the judgment was entered inadvertently (which is clerical error) versus advertently (which might be judicial error, but is not clerical error)." (Tokio, supra, 75 Cal.App.4th at p. 117; see Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1144.) For example, the addition of an entity as a judgment debtor is not the correction of a clerical error in the judgment absent evidence the court intended to include that entity as such: "A court's power to correct clerical error does not allow the court to leapfrog inconvenient questions of contract interpretation and proceed summarily to judgment under the guise of correcting 'clerical' error." (Tokio, supra, 75 Cal.App.4th at p. 119.) On the other hand, in Estate of Goldberg (1938) 10 Cal.2d 709, 714, a will provided for distribution to four children, and the court ordered distribution accordingly. Through inadvertence, however, only three of the children's names were placed in the judgment. (Ibid.) This was inadvertent clerical error which could be corrected postjudgment in the trial court, to accomplish the goal that the court's records speak the truth. (Id. at p. 716.)
The trial court's determination whether a judgment contains clerical error will not be reversed on appeal absent a showing of clear abuse of discretion. (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.) "Great weight should be placed on the trial court's declaration as to its intention in signing the judgment as the nature of the error is seldom clear from the record or other extrinsic evidence." (Ibid., citing Bowden v. Green (1982) 128 Cal.App.3d 65, 71 [whether the trial court "' inadvertently or by mistake signed findings or a judgment or order which he did not intend to constitute his decision'" is an issue "'of the judge's intent, and the best evidence is the judge's own statement, either express or implied from the order of correction'"].)
B.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING PLAINTIFF'S MOTION.
The trial court's minute order confirms the blank line regarding the date upon which interest would begin to accrue was the product of judicial action or inaction—not clerical action. The record does not show the trial court ever decided the issue as to when interest should begin to accrue, much less that it should begin to accrue as of the date the jury verdict was rendered. Plaintiff could have sought to correct that omission in the judgment by filing a postjudgment motion addressing the interest accrual date; it did not. Over two years after judgment was entered, plaintiff sought to "correct" the judgment with respect to the accrual date by characterizing the blank line as a clerical error even though to do so would broaden the terms of the judgment beyond the scope of what the record shows was intended by the trial court when judgment was pronounced.
This case is therefore similar to Tokio, supra, 75 Cal.App.4th 110 in which a party sought to add a judgment debtor to the judgment arguing, inter alia, such an addition would correct a clerical error within the meaning of Code of Civil Procedure section 473, subdivision (d). Rejecting that argument, the appellate court stated, "there is no evidence that anyone suggested to the trial judge at the time of rendition of judgment that the Underwriters be named as judgment debtors. There is no evidence that the court had an intent to include them as judgment debtors. There is no evidence that their name was omitted through mere inadvertence. Hence there is no support for the assertion that this was clerical error." (Tokio, supra, 75 Cal.App.4th at p. 118.)
Here, there is no evidence (1) anyone suggested to the trial court at the time of rendition of judgment that August 31, 2012, or any other date, be entered on the blank line provided for the date upon which interest would begin to accrue; or (2) the court intended that interest would begin to accrue as of August 31, 2012 and that the line remained blank through mere inadvertence. The motion to correct a clerical error in the judgment was properly denied.
DISPOSITION
The postjudgment order is affirmed. Respondent shall recover costs on appeal.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.