IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 13, 2010
WILLIAM TEZAK ET AL., PLAINTIFFS AND APPELLANTS,
RICHARD CARLBURG ET AL., DEFENDANTS AND RESPONDENTS.
Appeal from a postjudgment order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed. (Super. Ct. No. 05CC03849)
The opinion of the court was delivered by: Ikola, J.
Tezak v. Carlburg
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiffs William and Anice Tezak appeal the trial court's January 23, 2009 postjudgment order correcting an alleged clerical error in a prior order. The corrected order awarded $40,375 in attorney fees and $191.46 in costs to defendants.*fn1 The court's October 9, 2008 order awarded defendants $13,500 in attorney fees and $3,311.80 in costs.*fn2 We affirm. The record indicates the court committed clerical error when it prepared its October 9, 2008 order, which did not comport with its ruling at the hearing as to the amount of attorney fees and costs to be awarded to defendants. The court was entitled to correct this clerical error.*fn3
In December 2007, defendants filed a motion for an award of attorney fees in the amount of $40,375. This request pertained to fees incurred by defendants in responding to plaintiffs' appeal of the underlying action ($38,335) and in filing the motion to recover such fees incurred in the appeal ($2,040). Defendants also filed a memorandum of costs incurred on appeal in the amount of $191.46.
On June 3, 2008, a minute order was entered indicating the court granted defendants' motion for attorney fees in the amount of $40,375 and denied plaintiffs' motion to tax costs. The minute order's award of attorney fees and denial of plaintiffs' motion to tax costs accurately summarized the court's statements on the record at the June 3 hearing. This minute order also mirrored the contents of the court's tentative decision, announced prior to the hearing. Defendants promptly filed and served a notice of ruling, which purported to restate the court's rulings at the June 3 hearing: defendants' motion for attorney fees in the amount of $40,375.00 was granted and plaintiffs' motion to tax costs was denied.
On October 9, 2008, the court filed a signed order entitled "ORDER RE: MOTION FOR AN AWARD OF ATTORNEYS' FEES ON APPEAL." The order appears to be a proposed order submitted by defendants with their motion for attorney fees. The order states: "1. Defendants' Motion for An Award of Attorneys' Fees Incurred on Appeal is granted; [¶] 2. Defendants are awarded, as against Plaintiffs William and Anice Tezak, their attorney's fees incurred on appeal in the amount of $13,500.00; and [¶] 3. Defendants are awarded, as against Plaintiffs William and Anice Tezak, their costs on appeal in the sum of $3,311.80." The two dollar figures were handwritten into the otherwise typed order on lines provided for such interlineations.
Noticing the discrepancy in the court's orders, counsel for defendants submitted a proposed order reflecting the amounts of fees and costs indicated in the minute order and at the June 3, 2008 hearing. On January 23, 2009, the court signed and filed the proposed order, entitled "AMENDED ORDER RE: MOTION FOR AN AWARD OF ATTORNEYS' FEES ON APPEAL." This order states that, at the June 3, 2008 hearing: "The Court issued orders granting Defendants' Motion for Attorneys' Fees on Appeal in the amount of $40,375.00 and denying Plaintiffs' Joint Motion to Strike and/or Tax Costs in its entirety. [¶] On October 9, 2008, the Court signed the Order Re: Motion for Award of Attorneys' Fees on Appeal but entered the incorrect dollar amounts onto the Order. [¶] IT IS ORDERED, ADJUDGED AND DECREED NUN[C] PRO TUNC that: [¶] 1. Defendants' Motion for An Award of Attorneys' Fees Incurred on Appeal is granted; [¶] 2. Defendants are awarded, as against Plaintiffs William and Anice Tezak, their attorney's fees incurred on appeal in the amount of $40,375.00; and [¶] 3. Defendants are awarded, as against Plaintiffs William and Anice Tezak, their costs on appeal in the sum of $191.46. [¶] 4. The Order Re: Motion for Award of Attorneys' Fees on Appeal which was signed by the Court on October 9, 2008 is superseded by the present Amended Order."
One possible source of the numbers used in the October 9, 2008, order was a February 7, 2006 order in the case in which the court awarded defendants $13,500 in attorney fees and struck a portion of defendants' costs request. This 2006 order pertained to defendants' fees and costs incurred in bringing the underlying anti-SLAPP motion.
The question presented is whether the court's error was "clerical" or "judicial." "It is elementary that '[a] court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. [Citation.] It cannot, however, change an order which has become final even though made in error, if in fact the order made was that intended to be made.'" "'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.'" (Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1144; see Code Civ. Proc., § 473, subd. (d) ["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"].)
"A correctable clerical error includes one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion." (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204.) "The signing of a judgment, which does not express the actual judicial intention of the court, is clerical rather than judicial error." (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.)
All of the evidence in the record indicates the court committed clerical error. The court's October 9, 2008 order awarded attorney fees and costs in amounts that lacked any relation to the motions before the court and the rulings the court actually made at the June 3, 2008 hearing. Plaintiffs point to no evidence suggesting this imbroglio was anything other than an inadvertent insertion of the wrong numbers into the order. We find no abuse of discretion in the court's determination that it committed clerical error. (See Conservatorship of Tobias, supra, 208 Cal.App.3d at p. 1035 [noting abuse of discretion standard applies to determination of whether error is clerical].)
The January 23, 2009 postjudgment order amending the October 9, 2008 order to remedy a clerical error is affirmed. Defendants shall recover their costs on appeal.
WE CONCUR: O'LEARY, ACTING P. J. FYBEL, J.