Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Thomas P. Anderle, Judge Superior Court County of Santa Barbara Super. Ct. No. 1165495.
Michael P. Ring & Associates, Michael P. Ring, for Appellants.
Law Offices of Kevin Gerry, a Professional Corporation, Kevin Gerry, for Respondents.
YEGAN, J.
Ed and Judith Kunda (the Kundas) appeal from an order amending a judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) They contend that the alleged error in the October 11, 2006 judgment was not clerical and could not be corrected. They also contend that the trial court erroneously (1) granted an easement over their property to Ernest and Deirdre Watson (the Watsons), and (2) denied their request for injunctive relief to abate a nuisance created by the Watsons.
All statutory references are to the Code of Civil Procedure.
We affirm the trial court's order because the 2006 judgment was signed and prepared without reference to, and completely opposite of, the trial court's ruling that the Kundas had trespassed on the Watsons' property. This was a clerical error. We also conclude that the Kundas are barred from seeking appellate review of the easement and injunctive relief issues because they did not timely appeal from the original judgment.
Factual and Procedural Background
The parties are neighbors. In January 2004 the Watsons filed a complaint against the Kundas consisting of two causes of action: trespass to property and trespass to timber. The complaint alleged that, without Ernest Watson's consent, the Kundas had constructed a fence and cut down trees on his property.
The Kundas filed a cross-complaint against the Watsons consisting of three causes of action: nuisance, trespass, and negligence. The cross-complaint alleged that roots from the Watsons' trees had damaged sewer lines and concrete on the Kundas' property. It also alleged that the Watsons had allowed tree "foliage . . . to overgrow [their] property" and had maintained "a pool of stagnant water that emits foul and offensive odors . . . ." The Kundas sought damages as well as injunctive relief.
The trial court decided that it would try the equitable issues and a jury would try the legal issues. As to Watson's complaint, the jury returned special verdicts finding against him on both causes of action. As to the Kundas' cross-complaint, the jury returned special verdicts finding in their favor on the negligence and nuisance causes of action. It awarded them economic damages of $145,115 and noneconomic damages of $25,000. The jury found against the Kundas on their trespass claim.
After the jury had returned its special verdicts, the trial court decided the equitable issues. It denied the Kundas' request for injunctive relief to abate the nuisance because "in paying the damages, [Ernest] Watson has already paid to abate the nuisance." Thus, the award of both injunctive relief and damages would provide the Kundas with "a double recovery." In addition, the court decreed that the Watsons were entitled to an easement over the Kundas' property allowing the encroachment of their trees. "The easement should run with the respective properties and should be recorded."
The trial court's decision was incorporated in a document entitled, "COURT'S RULING ON EQUITABLE CAUSES OF ACTION." Under the subheading, "The Trespass Claim of the Watsons," the court declared that it was convinced that the Kundas had trespassed on the Watsons' property: "Even though the jury rejected [Ernest Watson's] trespass count I am convinced by the evidence that there was a trespass upon the Watson property by the Kundas. At trial Mr. Kunda testified that because the surveyor had now positively located the property line, that Mr. Kunda would remove his fence save and except for certain locations where the vines from the [Watsons'] property caught the fence. At a Court and counsel/client post trial meeting on June 9, 2006 both counsel graciously agreed to go to the property on the weekend and remove the fence back to the Kunda property. They reported back on June 13, 2006 at another post trial meeting and advised the work had been done and the fence was now removed from the property."
The trial court ordered the Kundas "to draft the Judgment and submit it to opposing counsel in accordance with the rules of Court." The court signed the judgment as prepared by the Kundas, and it was filed on August 7, 2006. It was silent on the trial court's determination that the Kundas had trespassed on the Watsons' property.
Both parties moved for a new trial. The Kundas' motion was limited to the equitable issues. The Watsons' motion was limited to the Kundas' cross-complaint. The trial court denied the Watsons' motion in its entirety. As to the Kundas' motion, the court ruled that it would modify the judgment to permit them (1) to apply for removal of the easement if they met certain conditions, and (2) "to bring future actions" for "any damage caused by future growth of the aboveground portion of the tree[s] for which [the Kundas] were not awarded costs to abate the nuisance." The Kundas prepared an amended judgment purporting to incorporate these modifications. The court signed the amended judgment, and it was filed on October 11, 2006. Again, it was silent on the trial court's determination that the Kundas trespassed on the Watson's property. No appeal was taken from this judgment.
In June 2007 the Kundas filed a complaint for malicious prosecution against Ernest Watson and his counsel. The complaint alleged that judgment had been entered against Watson on his trespass to property cause of action.
In August 2007 the Watsons filed a motion to correct the original judgment to show that they had prevailed on their trespass to property cause of action. The Watsons did not dispute that the jury's special verdict on this cause of action was against them. But they alleged that, "immediately following the publication of said Jury Verdict, the Court reversed the ruling on the trespass claim and directed that Judgment be entered in their favor . . . ." The Watsons contended that the original judgment's omission of the court's order was a clerical error correctible at any time.
The trial court issued a tentative decision granting the Watson's motion. The court reasoned that "the trespass claims were resolved in [his] favor, in spite of the jury's verdict, by the consent of all parties." The court stated: "At a meeting between the court, counsel, and the parties" three days after the jury's verdict, the Kundas acknowledged that they had erected a fence on the Watsons' property and agreed to remove it. "At a subsequent meeting . . . [the Kundas] reported that the work had been done and the fence removed." "The subsequent entry of judgment on the complaint in [the Kundas'] favor [on Ernest Watson's trespass to property cause of action] was, therefore, a deviation from the actual judgment intended to be entered on the trespass claims by the court and the parties, and therefore qualifies as a 'clerical error,' which may be corrected by amending the judgment."
A hearing was conducted on the Watson's motion. The Kundas argued, inter alia, that they had never acknowledged committing a trespass on the Watsons' property. The Kundas noted that "trespass is more than just a physical entrance." "If there was consent, there was no trespass." The Kundas alleged that their "primary defense" was consent, since the fence had been erected "at the request of the son tenant, Mr. Sean Watson." At trial, Ed Kunda testified that he had put up the fence "because Sean Watson wanted it" and had removed it because "Ernest Watson didn't want it."
The trial court decided to "stick with [its] tentative." The court said it was "unfair" for Ed Kunda "to go forward with a malicious prosecution action on trespass when [he was] trespassing."
On September 26, 2007, an amended judgment was filed showing that, although the jury had found in favor of the Kundas on Ernest Watson's trespass to property cause of action, the court had ordered that judgment on this cause of action be entered in favor of Watson and against the Kundas.
Clerical Error
The Kundas contend that the alleged error in the original judgment was not clerical and could not be corrected. " 'The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change the judgment.' " (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237.) But "a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts [sic, facts are facts]. [Citations.] . . . [¶] Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. 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.] Any attempt by a court, under the guise of correcting clerical error, to 'revise its deliberately exercised judicial discretion' is not permitted. [Citation.] [¶] An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. [Citations.]" (In re Candelario (1970) 3 Cal.3d 702, 705.)
Courts are divided on the appropriate standard of review in this situation. In Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035, the court applied the abuse of discretion standard. Other cases, however, have applied the substantial evidence standard. (Bree v. Beall (1981) 114 Cal.App.3d 650, 656; Meyer v. Porath (1952) 113 Cal.App.2d 808, 811-812.) We need not weigh in on this issue. Under either standard of review, the trial court correctly concluded that the original judgment contained a clerical error. It correctly recorded the jury's special verdict against Ernest Watson on his trespass to property cause of action but it ignored the "Court's Ruling On Equitable Causes Of Action." In essence, the trial court overturned the jury's verdict on this cause of action. The Kunda's did not object to this aspect of the trial court's ruling on either procedural or substantive grounds. The court's subsequent amendment of the original judgment reflects its earlier judicial ruling that the Kundas did trespass on the Watson property That ruling was ignored by counsel for the Kundas. It is apparent that the trial court would not have signed this judgment had it realized this omission.
The original ruling has significance because it allows a malicious prosecution action. The amended ruling forecloses it.
The trial court expressly stated that it was convinced that the Kundas had trespassed on the Watsons' property. This ruling vacated the jury verdict. Having elected not to object to the manner in which this was done, the Kundas may not do so now. (9 Witkin, Cal Procedure (3d ed. 2008) Appeal, § 400, pp. 458-459.)
"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 order. (Citation.)" (Estate of Doane (1964) 62 Cal.2d 68, 71.) Here, the trial court's contemporaneous remarks surely indicate that it did not intend to sign a judgment which was at variance with it's earlier written order. As indicated, it expressly ruled that, notwithstanding the jury verdict, it found that the Kundas did trespass on the Watson property. In these circumstances, it is apparent that the trial court did not rethink or redecide the case. In the words of our California Supreme Court, it did not "revise its deliberately exercised discretion." (In re Cadelario, supra, 3 Cal.3d at p. 705.) It simply conformed the judgment so that it was consistent with its earlier deliberately exercised discretion.
Easement and Injunctive Relief
The Kundas contend that, in the amended judgment, the trial court erred in (1) granting the Watsons an easement over their property, and (2) denying their request for injunctive relief to abate the nuisance created by the Watsons. The same alleged errors existed in the original judgment filed on October 11, 2006. The Kundas did not appeal from that judgment, and the time for filing an appeal expired months before Ernest Watson moved to correct the judgment in August 2007. The Kundas are therefore barred from seeking review of these alleged errors. (§ 906 [appellate court lacks authority to "review any decision or order from which an appeal might have been taken"]; see also Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1264; In re Lindauer's Estate (1942) 53 Cal.App.2d 160, 165.)
Conclusion
We commend the trial court for the detailed explanations of its rulings both in the original trial and in the post-judgment motions. This eases the task for an appellate court and compels the conclusion that there has been no miscarriage of justice here.
The order correcting a clerical error and the resulting amended judgment filed on September 26, 2007, are affirmed. The Watsons shall recover their costs on appeal.
We concur: GILBERT, P.J., PERREN, J.