Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC336736, Irving S. Feffer, Judge.
Frances M. Campbell for Plaintiff and Appellant.
Wayne M. Abb for Defendant and Respondent.
WILLHITE, J.
Plaintiff Sarah Uhrich appeals from an amended judgment that purported to correct, nunc pro tunc, a judgment earlier entered on her motion to enforce a settlement agreement with defendant Jeffrey Nabatmama. We reverse.
PROCEDURAL BACKGROUND
Complaint and Settlement Agreement
As alleged in plaintiff’s operative complaint, defendant owned a condominium in Los Angeles which he leased to plaintiff for $1,750 a month. After plaintiff moved in, a dispute arose as to the amount of the security deposit -- plaintiff paid $5,200, defendant demanded $1,000 more. The dispute resulted in defendant filing two unlawful detainer actions against plaintiff, and plaintiff filing the instant lawsuit in which she alleged causes of action against defendant for violation of the Fair Debt Collection Practices Act (Civ. Code, § 1788.1, et seq.), unlawful actions to influence a tenant to vacate (Civ. Code, § 1940.2), retaliatory eviction, and unfair business practices (Bus. & Prof. Code, § 17200).
On June 9, 2006, before a mediator, the parties executed a written settlement agreement that was expressly enforceable under Code of Civil Procedure section 664.6 (“section 664.6”). The agreement (the material terms of which were handwritten and contained numerous abbreviations) provided in relevant part: “Defendant will pay Plaintiff the sum of 30k” and “Plaintiff will dismiss the above lawsuit with prejudice.” It further provided: “Payment as follows[:] 10k on or before 7-1-06[.] Balance of amount payable at the rate of [$]1500 per month on the 15th of each month until pd. in full[.] [F]irst pymnt 8-15-06. Plaintiff shall vacate premises . . . on or before 7-31-06. If premises not vacated Defendant shall receive $2500 rent each month Plaintiff remains in possession. . . . If Defendant defaults under this agreement, Defendant shall stip to enter judgment for unpaid balance. . . . Current U.D. dismiss without prejudice . . . provided Plaintiff vacates subject premises by 7-31-06. If Plaintiff fails to vacate [a writ of possession] may issue on Defendant’s app[lication].”
Plaintiff’s Motion to Enforce Settlement
On July 17, 2006, plaintiff filed a motion to enforce the settlement agreement pursuant to section 664.6. In the motion, plaintiff cited the provisions of the agreement in which defendant agreed to pay plaintiff a total of $30,000, agreed to make an initial payment of $10,000 by July 1, 2006, and stipulated that, if he defaulted, judgment would be entered for the unpaid balance. According to a declaration filed by plaintiff’s attorney, defendant had defaulted on the July 1 payment. Therefore, plaintiff sought entry of judgment against defendant in the sum of $30,000.
Defendant filed an opposition to the motion. He conceded that he had not made any payments. He argued, however, that before judgment could be entered, plaintiff must comply with the terms of the settlement agreement that required her to vacate the premises by July 31 or to pay rent of $2,500 a month if she did not. Further, if judgment of $30,000 were entered against him as sought by plaintiff, defendant argued that the settlement agreement entitled him to an offset in the amount of the rent due at the rate of $2,500 a month.
Hearing and Court’s Ruling
The trial court heard the motion on August 29, 2006. After reviewing the parties’ respective positions, the court stated: “Well, this is a tricky one. It’s a law school problem. I don’t think I need argument. I need some law. Does anybody want to make any comments on this one?” Neither counsel for plaintiff nor defendant responded. The court continued: “All right. Let me tell you what I’m going to do. I do this reluctantly but I think it’s the law. The motion to enforce the settlement agreement is granted. . . . [T]he defendant does not contest the existence or validity and terms of the parties’ . . . written settlement agreement. As defendant himself puts it [in] his opposition . . ., plaintiff should not be entitled to the stipulated judgment until she performs under the agreement. . . . However, there isn’t any law to support that position that plaintiff’s own nonperformance would bar a judgment. . . . According to the plain language of CCP 664.6, so long as the parties stipulate, in writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, the court, upon motion, may enter judgment pursuant to the terms of the agreement. And that’s what I’m doing even though the other side hasn’t [gotten] what they bargained for. But nevertheless, the law is the law, motion is granted.”
Defendant’s counsel stated that he did not “disagree with the entry of judgment,” but asked the court to “be consistent [and] issue an order ordering the defendant to vacate the premises.” The court replied, “That’s not before me. . . . I’m not going to get into that. No advisory opinion.”
The clerk of the court then asked what the status of the case was and whether the case was going to be dismissed. The court replied that its ruling was “dispositive,” that it was “not dismissing” the case, and that the clerk would be “entering a judgment.”
Seeking clarification, defendant’s counsel asked whether the court would “still retain jurisdiction.” The court stated that it retained jurisdiction “for purposes of enforcement.” Defendant’s counsel stated, “Right. So we’ll bring our own motion then to enforce the other terms of the settlement agreement.”
Finally, defense counsel noted that the total amount that would be reflected in the judgment under the court’s ruling was “30,000. But again – and I don’t know whether you want to consider this – we were supposed to get a $2,500 credit.” The court replied that it was “not going to do that.”
The court entered judgment against defendant pursuant to the settlement agreement in the sum of $30,000. Plaintiff served notice of entry of judgment on October 23, 2006.
Defendant’s Motion to Enforce the Settlement
Meanwhile, on October 12, 2006, defendant filed his own motion to enforce the settlement. In the motion, supported by defense counsel’s declaration, defendant cited the terms of the settlement agreement that required plaintiff to dismiss of the current action, and vacate the premises or pay rent of $2,500 per month for each month plaintiff remained in possession. Because plaintiff had not complied with these conditions, defendant sought an order compelling plaintiff to dismiss the action and calculating “the amount due defendant by plaintiff for her continued possession of the premises and credit that amount against the $30,000.00 Judgment against him.”
Plaintiff opposed the motion, arguing that the court’s prior entry of judgment precluded the court from entertaining the motion.
Hearing and Ruling
The court heard defendant’s motion to enforce the settlement agreement on November 13, 2006. Plaintiff’s counsel argued that entry of judgment following the court’s granting of plaintiff’s motion to enforce the settlement “terminated the litigation,” and therefore the court had no authority to entertain defendant’s motion. Defendant’s counsel argued that the court retained jurisdiction to enforce those terms of the settlement agreement other than the stipulation for entry of the monetary judgment of $30,000.
The court ruled: “Let me tell you what I’m going to do. . . . I think the [motion] to enforce the settlement agreement . . . is denied as being moot. . . . Code of Civil Procedure [section] 664.6 . . . authorizes the court to, quote, ‘enter a judgment pursuant to the terms of the settlement,’ . . . And . . . the court already entered judgment in this matter following the plaintiff’s motion to enforce the settlement agreement. However, the judgment the court signed . . . only partially reflects the terms of the settlement[, namely,] it only reflects the defendant’s obligations to the plaintiff. [Under Ames v. Paley (2001) 89 Cal.App.4th 668, 670], quote, ‘to the extent the judgment failed to conform to the terms of the settlement agreement, the trial court retained the inherent power to correct the judgment at any time nunc pro tunc,’ . . . [T]he court now corrects the judgment to reflect all of the terms of the settlement agreement, including the plaintiff’s obligations to the defendant.” The court later clarified that the prior judgment was to be amended to include an offset of $2,500 a month and to restore possession of the premises to defendant.
On December 15, 2006, the court executed a corrected judgment which recited the settlement agreement in full, and included additional terms (including terms not previously mentioned by the parties or the court). The judgment ordered that: (1) by December 28, 2006, defendant was to pay plaintiff $10,000; (2) no later than 30 days after receipt of those funds, plaintiff would vacate the premises and file a full satisfaction of judgment in a prior unlawful detainer case; (3) if plaintiff failed to vacate, a writ of possession would issue on defendant’s application; and (4) defendant was to pay plaintiff $7,500, “which reflects the balance of the original agreed upon amount of the settlement agreement with credit for five . . . months of residency at the premises at the rate of $2,500.00 per month, with interest.”
Plaintiff appeals from the corrected judgment.
DISCUSSION
Plaintiff contends that the trial court lacked the power to modify the August 29, 2006 judgment nunc pro tunc. We agree.
After a judgment is entered, the court loses “unrestricted power to change it. If the entry conforms to the judgment as rendered, and there is no clerical error in the rendition or entry, there can be no summary amendment by the court itself no matter how wrong in law the decision may be. Judicial error, i.e., an erroneous decision, can only be rectified by the regular procedures for attack on a judgment: motion for a new trial, motion to vacate judgment, appeal, or an independent action in equity.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 67, p. 594, italics in original.) The distinction between correctible clerical error and uncorrectable 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 Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117.)
Here, the record shows that the judgment entered on August 29, 2006, after the court granted plaintiff’s motion to enforce the settlement agreement, was precisely the judgment the court intended to enter. Whether that judgment was the product of judicial error, it was certainly not the product of clerical error.
Code of Civil Procedure section 664.6 provides in relevant part that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” When enforcing a settlement agreement under section 664.6, the court has the authority to resolve factual disputes relating to the agreement, to interpret (though not add to) the terms of the settlement, and to incorporate the terms of the settlement into a judgment. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810; see Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566 (Fiore).)
Here, at the hearing on plaintiff’s motion to enforce the settlement agreement, the court apparently misunderstood the scope of its power. The court’s comments suggest that it believed it could only enter judgment on the term of the agreement cited by plaintiff -- that is, the term in which defendant stipulated to entry of judgment for the balance due should he default on the July 1, 2006 payment. The court declared that it was going to enter judgment on that term in plaintiff’s favor “even though the other side hasn’t [gotten] what they bargained for.” The court refused to consider whether, as urged by defense counsel, the judgment should also incorporate the terms of the settlement requiring plaintiff to vacate the premises and entitling defendant to rent of $2,500 a month. As the court stated with respect to the settlement term regarding plaintiff vacating the premises: “That’s not before me. . . . I’m not going to get into that. No advisory opinion.” With respect to the issue of offset, the court simply declared, “I’m not going to do that.” Thus, the court’s failure to incorporate additional settlement terms into the judgment was not inadvertent. Rather, it was intentional – albeit the result of the court’s apparent misconception as to the scope of its power to enforce the settlement. (See, e.g., Fiore, supra, 182 Cal.App.3d at pp. 565-566 [court had authority under section 664.6 to interpret settlement agreement to determine whether the agreement was intended to cover certain offsets and credits].)
At the hearing of November 2006, when the court denied defendant’s motion to enforce the settlement agreement as moot, it purported to correct the judgment nunc pro tunc to reflect additional settlement terms. But it had no power to do so, because the judgment the court earlier entered was precisely the judgment the court intended. The trial court’s reliance on Ames v. Paley, supra, 89 Cal.App.4th 668 (Ames) was misplaced. In Ames, the parties’ settlement agreement required the defendant to execute a promissory note in favor of plaintiffs. (Id. at p. 670.) On the parties’ joint motion to enforce the settlement agreement, the trial court entered judgment pursuant to the agreement, requiring plaintiff to execute a promissory note in a fixed sum with specified rate of interest. But the court failed to fix the date of the promissory note. The plaintiff later moved to correct the judgment to specify the date of the note. The trial court granted the motion, specifying the date requested. (Id. at p. 672.)
On the defendant’s appeal, the court of appeal affirmed the nunc pro tunc correction of the judgment as a mere correction of a clerical error. As explained by the reviewing court: “The essential issue presented is whether the trial court had the inherent power to modify the judgment to correct an omitted term pertaining to the date [the defendant’s] promissory note obligation would commence. [¶] In granting the earlier motion for entry of judgment pursuant to Code of Civil Procedure section 664.6, the trial court intended to enter judgment pursuant to the terms of the settlement agreement. Accordingly, to the extent the judgment failed to conform to the terms of the settlement agreement, the trial court retained the inherent power to correct the judgment at any time nunc pro tunc.” (Id. at pp. 669-670, fn. omitted.)
In the instant case, by contrast, when the trial court granted the first motion to enforce the settlement agreement and entered judgment, the court expressly did not intend to enforce any settlement terms other than defendant’s stipulation to entry of a monetary judgment. Hence, unlike Ames, the trial court could not later change the judgment nunc pro tunc to reflect additional settlement terms. (See Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1145 [because “[t]he judgment precisely carried out the intent of the trial court’s ruling,” the court could not later change the judgment “‘under the guise of correction of clerical error’”].)
Defendant argues that we should review the trial court’s purported correction of clerical error under the abuse of discretion standard, and that the court did not abuse its discretion in exercising its nunc pro tunc power. However, the record affirmatively shows that the court had no discretion to change the judgment, because the error the court sought to correct was judicial, not clerical.
DISPOSITION
The judgment executed on December 15, 2006 is reversed. The court is ordered to reinstate the prior judgment entered on August 29, 2006. Plaintiff shall recover her costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.