Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CV 014757-2
Ruvolo, P. J.
The parties to this appeal agreed to arbitrate the property issues arising from their marital dissolution proceeding. In confirming the arbitration award, the trial court awarded the wife interest on the equalizing payment from the date of the award. The husband did not file a timely post judgment motion or appeal, but later challenged the interest award portion of the judgment on the ground that it was contrary to the arbitrator’s decision. We hold that the original judgment was not void, and the inclusion of the interest was not a clerical error that could be corrected after the judgment became final.
Facts and Procedural Background
This case has a lengthy and complex procedural history, but for the purposes of this opinion, the relevant facts are as follows. In August 2000, Robert J. Nielsen, Jr. and Michelle Olds agreed to submit the property division issues arising out of the pending dissolution of their marriage to binding arbitration before a retired judge. On August 2, 2001, the arbitrator rendered his award (the original award), which was followed by a corrected award dated September 21, 2001 (the corrected award).
As is customary in family law cases, we refer to the parties by their first names, intending no disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
As relevant to this appeal, the original and corrected awards provided that to equalize the distribution of community property, and to account for various other obligations owed by the parties to one another, Robert was to pay Michelle a specified sum (the equalizing payment), “subject to the [a]rbitrator’s reservation of jurisdiction to adjust actual amounts” if the parties could not agree on them. The need for a further adjustment arose from the existence of disputes about the amounts of outstanding debt balances that were not fully resolved at the arbitration hearing. The original and corrected awards both provided that the equalizing payment was “to be paid within thirty (30) days of the date that this award becomes a judgment of the [c]ourt.”
The original award was entirely silent on the issue of interest on the equalizing payment. Michelle requested that the arbitrator correct the award to add a provision that the equalizing payment would “accrue interest at the rate of 7% per annum until thirty (30) days after the corrected Award becomes a judgment of the Court, or until [Robert’s] payment to [Michelle], whichever occurs first.” (Capitalization in original.) Robert responded to this request by contending that “Until entry of a Judgment, the amount owed [to Michelle] by [Robert or his company] is not a liquidated sum. Accordingly, no interest should accrue on any sum until entry of a Final Judgment.” (Capitalization in original.)
In his order correcting the award, the arbitrator denied Michelle’s request for interest. He explained that the request was “redundant and therefore MOOTED by application of law,” in that “Interest will accrue on any judgment entered on the Award once it is presented to the court for confirmation,” and that “There is no need, nor does the Arbitrator possess the power to enter any such award.” (Capitalization in original.)
On October 5, 2001, Michelle filed a petition in the trial court to correct and confirm the corrected award. In her petition, Michelle stated that she was “entitled to prejudgment interest on the amount due to her from [Robert] under the [a]ward as corrected, from the date of the [original] [a]ward, August 2, 2001,” citing Civil Code section 3287, subdivision (a), as authority. She explained that the adjustments to the equalizing payment contemplated by the corrected award were “easily calculable on August 2, 2001, using the mortgage statements and payment records either in [Robert’s] possession or readily available to him.”
On November 7, 2001, Robert responded by filing a motion to set aside the corrected award. He contended that it was defective because it did not explain the arbitrator’s reasons for rejecting the requests for correction that Robert had submitted after the filing of the original award. Robert’s papers did not address Michelle’s request for prejudgment interest.
On November 27, 2001, Alameda County Superior Court Commissioner Stephen F. Foland entered an order granting Michelle’s petition to correct and confirm the award. The order did not address the question of interest on the equalizing payment. On December 11, 2001, Commissioner Foland signed and filed a judgment drafted by Michelle’s counsel (the December 2001 judgment). The judgment provided that the corrected award was confirmed and made the judgment of the court; specified the tax treatment of amounts payable as spousal support under the award; directed Robert to attempt to remove certain property, which had been awarded to Michelle, from the collateral pledged for loans to Robert’s company; and ordered that Michelle was to recover interest on the equalizing payment at the rate of 10 percent per annum from August 2, 2001.
Robert did not appeal from the December 2001 judgment. Instead, on February 22, 2002, he filed a motion under Code of Civil Procedure section 663 (the February 2002 motion) seeking to set aside the portion of the December 2001 judgment that provided for Michelle to receive interest on the equalizing payment starting as of the date of the arbitration award. On May 31, 2002, Commissioner Foland entered an order (the May 2002 order) which settled the few remaining disputed items left unresolved by the arbitrator, but denied the February 2002 motion, concluding “that the judgment should and shall be entered as of December 11, [2001] . . . .”
The May 2002 order also contained a provision regarding the payment of retirement funds, which was later contested in the trial court. This provision is not at issue on this appeal.
Although the May 2002 order expressly stated that it was denying the February 2002 motion, it also provided that “Because the decision of the Arbitrator is final, . . . the Award also controls the date when the equalizing payment is due, and consequently the date when interest on the Award (and the judgment) begins to accrue. That date is, per paragraph 12 of the Award, 30 days after December 11, 2001.” On June 17, 2002, Michelle filed a notice of intent to move for new trial or to vacate decision, contesting the quoted provision from the May 2002 order. Michelle contended that the court had no legal basis for modifying that aspect of the December 2001 judgment in the absence of a timely motion for new trial or reconsideration by Robert.
Further litigation over the issue of prejudgment interest ensued, lasting nearly four years, with first one party prevailing, and then the other. Ultimately, the matter came before Alameda County Superior Court Judge Yolanda N. Northridge. On April 27, 2006, Judge Northridge entered an order (the April 2006 order) providing that the May 2002 order “was and is void. It is invalid on its face. It and any other order that has its genesis in the void [May 2002] order . . . remain subject to a motion to set aside. [Citation.]” Robert timely appealed from the April 2006 order.
The parties agree, as do we, that the April 2006 order was an appealable postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2).
Discussion
A. Was the December 2001 Judgment Void, or Only Voidable?
The December 2001 judgment became final before the May 2002 order was entered. Robert’s principal argument on appeal is that the May 2002 order was nonetheless proper, because the December 2001 judgment was void, at least to the extent that it awarded Michelle prejudgment interest, and therefore could be collaterally attacked and set aside at any time. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [“When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’ [Citation.]”].) If the December 2001 judgment was only voidable and not void, however, then Robert’s challenge to it, which led to the entry of the May 2002 order, was untimely. “The difference between a void judgment and a voidable one is that a party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final. [Citations.]” (Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 780; cf. Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725 [“It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties. . . . [L]ack of jurisdiction in the fundamental sense . . . is ordinarily essential for collateral attack . . . .”].) Accordingly, we begin our analysis with an examination of the question whether the December 2001 judgment was void, or only voidable.
Judge Northridge’s April 2006 order expressly concluded that the December 2001 judgment “became final, non-appealable and non-modifiable days before the [February 2002] motion was filed.” Robert’s opening brief on appeal did not contest this conclusion. Any argument to the contrary has thus been waived. (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 352; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) For this reason, we decline to address Robert’s contention at oral argument, which was not made in his opening brief, that as of May 2002, Commissioner Foland still retained inherent jurisdiction to correct the December 2001 judgment, because that judgment was not yet final at that time.
A judgment is void if the court does not have jurisdiction over the parties or the subject matter. (Estate of Gardiner (1941) 45 Cal.App.2d 559, 562-563; accord, In re Marriage of Mansell (1989) 217 Cal.App.3d 219, 229-230.) In this case, however, Robert does not contend that the trial court lacked either personal jurisdiction over himself and Michelle, or subject matter jurisdiction over their marital dissolution. Rather, Robert argues that the December 2001 judgment was void because the trial court had no authority to award prejudgment interest from the date of the arbitration award. He characterizes this aspect of the December 2001 judgment as an action taken without jurisdiction.
Examples of cases holding judgments or orders void for lack of subject matter jurisdiction include Estate of Buckley (1982) 132 Cal.App.3d 434, 448-450, which held that where the applicable statute did not allow a probate court to exercise subject matter jurisdiction over a decedent’s estate unless and until statutory requirements for publication of a death notice were satisfied, the court’s actions taken in the absence of such publication were void, and Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 20-22 (Plaza Hollister), which held that because the courts lack subject matter jurisdiction to determine property values for tax assessment purposes, a stipulated judgment purporting to set such values was void.
We disagree. When a court has personal and subject matter jurisdiction, but lacks the authority to act except in a particular manner, or to grant certain kinds of relief, or to proceed in the absence of certain procedural prerequisites, a judgment that does not comply with these limitations is not an action taken without jurisdiction, but one in excess of jurisdiction. (Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1087-1088, disapproved on another point in Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 280.) “Action ‘in excess of jurisdiction’ by a court that has jurisdiction in the ‘fundamental sense’ (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable. [Citations.]” (Id. at p. 1088, italics in original.)
Robert argues that by agreeing to refer their property dispute to arbitration, the parties divested the trial court of subject matter jurisdiction over all issues referred to the arbitrator. When parties agree to arbitration after initiating a judicial proceeding, however, the court retains subject matter jurisdiction over the proceeding as a whole, including jurisdiction to confirm or correct the award. (Code Civ. Proc., §§ 1285, 1286; see Crofoot v. Blair Holdings Corp. (1953) 119 Cal.App.2d 156, 180-182, disapproved on other grounds by Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 183 [court had jurisdiction to confirm award after issues in pending litigation were submitted to arbitration by agreement of parties, without leave of court].) We do not understand Robert to argue otherwise. Moreover, under established case law, a court with jurisdiction over a proceeding to confirm an arbitration award also has the jurisdiction (and, indeed, the obligation) to award postaward, prejudgment interest to the prevailing party. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 27-28 (Pierotti); Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1106-1107 (Britz).)
Robert also argues that in the present case, unlike in Pierotti, supra, 81 Cal.App.4th 17, the corrected award expressly precluded the award of prejudgment interest to Michelle. We need not determine whether Robert is correct on this point. Even if his interpretation of the corrected award is accurate, this would not affect the question whether the trial court had jurisdiction to do what the arbitrator declined to do. In other words, even if accepting Robert’s characterization of the corrected award could lead us to conclude that the trial court’s award of postaward prejudgment interest was erroneous and thus voidable, it would not lead us to hold that this aspect of the December 2001 judgment was void.
Robert has cited no case holding that if a judgment purporting to confirm an arbitration award fails to conform to the award, it is therefore beyond the subject matter jurisdiction of the court, and thus void. He argues, based on language taken from cases not involving judgments confirming arbitration awards, that a judgment granting relief which the court has no authority to grant is void. More precisely, however, those cases hold that “[t]he granting of relief, which a court under no circumstances has any authority to grant, has been considered an aspect of fundamental jurisdiction for the purposes of declaring a judgment or order void.” (Plaza Hollister, supra, 72 Cal.App.4th at p. 20, italics added.) Robert does not and could not argue that a judgment confirming an arbitration award, and awarding postaward, prejudgment interest, is a judgment granting relief that a court has no authority to grant under any circumstances. Accordingly, the line of cases described in Plaza Hollister, and relied on by Robert, does not apply here.
On the contrary, the case law establishes that at least in some respects, a court confirming an arbitration award does have the authority to enter a judgment that goes beyond the award. (See, e.g., Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1084-1085 [court properly included award of prejudgment interest and costs under Code Civ. Proc., § 998 in judgment confirming arbitration award for amount greater than pretrial settlement offer]; Caro v. Smith (1997) 59 Cal.App.4th 725, 735-738 [same]; Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd. (1996) 41 Cal.App.4th 1551, 1555 [court has jurisdiction to amend judgment confirming arbitration award to add, as additional judgment debtor, alter ego of party to arbitration].)
Robert similarly argues that here, unlike in Britz, supra, 34 Cal.App.4th 1085, Michelle was not entitled to postaward, prejudgment interest because the equalizing payment was not “damages certain, or capable of being made certain by calculation” within the meaning of Civil Code section 3287, subdivision (a), the statute relied upon by Pierotti and Britz. Again, we need not resolve this argument on the merits, because even if we accepted Robert’s position, that would establish only that the December 2001 judgment was legally incorrect, not that the trial court was without jurisdiction to render it. “[A] judgment entered contrary to substantive law does not fall to the level of being in excess of the trial court’s jurisdiction.” (In re Marriage of Mansell, supra, 217 Cal.App.3d at p. 229.) A fortiori, such a judgment cannot be said to have been entered without jurisdiction. (See Yeung v. Soos (2004) 119 Cal.App.4th 576, 581-582 [procedural error in failing to require proof of title from plaintiffs in quiet title action did not deprive court of jurisdiction to enter judgment, and thus did not render judgment void].) Here, the trial court’s error (if error it was) did not deprive the trial court of the power to enter judgment, and did not render the judgment void. Robert’s untimely motion to set aside the judgment was therefore properly denied.
B. Did the May 2002 Order Correct a Clerical Error?
In the alternative to his first argument, Robert contends that even if the December 2001 judgment was not void, the May 2002 order was still valid, because it merely corrected a clerical error in the December 2001 judgment. Unlike a judicial error, a clerical error in a judgment may be corrected by the court at any time, even after the judgment is final. (Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1144 (Bell v. Farmers); Code Civ. Proc., § 473; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 69.)
“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). [Citation.] 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; accord, People v. Davidson (2008) 159 Cal.App.4th 205, 209-210; Bell v. Farmers, supra, 135 Cal.App.4th at p. 1144.) Only “[c]hanges 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; see also In re Candelario (1970) 3 Cal.3d 702, 705 [“The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.]”].)
In the present case, Robert has not pointed to anything in the record indicating that Commissioner Foland acted inadvertently in signing the December 2001 judgment, in that he did not intend, at that time, to award postaward, prejudgment interest to Michelle. Where “the record does not disclose an inadvertent error . . . [citation], the judgment cannot be changed . . . ‘under the guise of correction of clerical error.’ [Citations.]” (Bell v. Farmers, supra, 135 Cal.App.4th at p. 1145.)
Disposition
The April 2006 order, from which this appeal was taken, is affirmed. Michelle shall recover her costs on appeal.
We concur: Sepulveda, J., Rivera, J.
In support of his belated argument, Robert cited our recent opinion in In re Marriage of Barthold (2008) 158 Cal.App.4th 1301 (Barthold). Robert’s reliance on Barthold is misplaced. Barthold held that a trial court retains inherent jurisdiction to reconsider, on its own motion, an appealable post-judgment order as to which the time to appeal has not yet expired, even when that reconsideration is preceded by the filing of a substantively improper motion under Code of Civil Procedure section 1008. (See id. at pp. 1312-1313 & fn. 9.) Barthold has no bearing on a trial court’s ability to amend a judgment after the filing of an untimely motion under Code of Civil Procedure section 663.