Concoff v. Aull

















Filed 1/25/13
Concoff v. Aull CA2/4

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR




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ANDREW and SIMONE CONCOFF, Plaintiffs and Appellants, v. WILLIAM P. AULL et al., Defendants and Respondents; SOTHEBY’S INTERNATIONAL REALTY, INC. et al., Respondents and Cross-Appellants.

B228490 (Los Angeles County Super. Ct. No. SC094044)

APPEALS from
a judgment and post-judgment order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Terry B. Friedman and Richard A. Stone, Judges. The Concoffs’ appeal is dismissed; the order
awarding attorney fees to Aull is affirmed; and the order under review in the
cross-appeal filed by Sotheby’s and Montgomery is affirmed.

Hillel
Chodos and Jonathan P. Chodos for Plaintiffs and Appellants.

Lewis
Brisbois Bisgaard & Smith, Roy G. Weatherup and Caroline E. Chan for Defendant
and Respondent William P. Aull.

Manning
& Kass, Ellrod, Ramirez, Trester, David I. Gorney and Darin L. Wessel for
Respondents and Cross-Appellants.

>INTRODUCTION

Dr. Andrew and Simone Concoff
purchased a townhome from Dr. William P. Aull, after which, according to the
Concoffs’ operative second amended complaint in this action, they discovered
undisclosed damage from mold and water intrusion. As a result, they sued Aull and his
representatives, Sotheby’s International Realty and its broker Susan
Montgomery. The current appeal and
cross-appeal in the action involve a lengthy procedural history, which we
summarize below. In short, the result is
that: (1) the appeal by the Concoffs
from the judgment in favor of Aull following a bench trial is untimely and must
be dismissed, (2) the cross-appeal by Sotheby’s and Montgomery is properly
taken from a post-judgment order affecting their substantial rights, and (3) on
the merits the cross-appeal fails.

For clarity’s sake, we summarize the
history of this case, to be supplemented by additional necessary facts in later
portions of our opinion. As against all
three defendants, the Concoffs alleged claims for fraud, negligent
misrepresentation, and intentional infliction of emotional distress. As against Aull alone, they alleged claims
for rescission and breach of contract.
Finally, they alleged a claim for negligence. That claim named only Sotheby and Montgomery
as defendants in the heading, and specifically alleged that Sotheby’s and
Montgomery (with no mention of Aull) breached their duty of care in failing to
conduct a reasonable inspection of the property. However, the claim also alleged that Aull had
a duty to disclose all material facts concerning the property, though, as
previously mentioned, it included no allegation of breach by Aull.

The trial court conducted a href="http://www.mcmillanlaw.com/">bench trial on the Concoffs’ equitable
cause of action for rescission against Aull and Aull’s indemnity
cross-complaint against Sotheby’s and Montgomery. In that trial, the court made factual
findings that resolved all of the Concoffs’ claims (with the possible exception
of the negligence cause of action) in favor of Aull, Sotheby’s, and Montgomery,
and resolved Aull’s cross-complaint for indemnity in favor of Sotheby’s and
Montgomery.

Thereafter, on December 30, 2009, the trial court signed a judgment
that granted judgment against the Concoffs and in favor of Aull, Sotheby’s, and
Montgomery on all claims and awarded them costs. Aull served notice of entry of judgment on January 11, 2010.
Aull, Sotheby’s, and Montgomery filed costs memoranda, and Aull moved
for attorney fees. The Concoffs did not
file a notice of appeal from the judgment.

In the meantime, the judge who had
tried the case retired and a different judge was assigned. In opposing Aull’s motion for attorney fees
before the newly assigned judge, the Concoffs argued that the motion was premature,
contending (for the first time) that Aull was a defendant in the negligence
claim and that the December 2009 judgment did not dispose of that claim against
him. Following briefing and a hearing,
the trial court (the newly assigned judge) issued an order on October 21, 2010,
concluding that: (1) Aull’s motion for
attorney fees was not premature, because Aull was not a defendant in the cause
of action for negligence, and the December 2009 judgment disposed of all claims
against him; (2) the judgment contained a clerical error as to Sotheby’s and
Montgomery, because it was not intended to dispose of the negligence claim
against them; (3) the clerical error must be corrected by deleting the language
that granted full judgment in favor of Sotheby’s and Montgomery; and (4) this
correction did not modify the previously entered judgment in favor of
Aull.

Having not appealed from the December
2009 judgment in favor of Aull, the Concoffs filed a notice of appeal from the
October 2010 order. That purported
appeal, which is now before us, seeks to raise a variety of issues covered by
the December 2009 judgment. We conclude
that the notice of appeal from the October 2010 order is ineffectual to
challenge the December 2009 judgment.
Having failed to timely appeal from that judgment, the Concoffs cannot
challenge it now, and their appeal must be dismissed.

Sotheby’s and Montgomery filed a
cross-appeal from the October 2010 order.
That order corrected the December 2009 judgment so as to deprive them of
a full judgment in their favor. We
conclude that Sotheby’s and Montgomery’s cross-appeal from the October 2010
order is appealable as a post-judgment order affecting their substantial
rights. We therefore consider the
cross-appeal, but conclude that the trial court did not err in correcting the
clerical error in the judgment.

We now set forth the in full detail
the relevant factual and procedural background.




>FACTUAL AND PROCEDURAL BACKGROUND

1.
The Lawsuit and the Trial Court’s Decision


In 2006, Aull sold his Pacific
Palisades townhome to the Concoffs for $1.45 million. During the transaction, Aull was represented
by Sotheby’s and its broker Montgomery; the Concoffs were represented by
Coldwell Banker and its broker Sharon Gavin.
The Concoffs allege that shortly after they moved into the townhome,
they discovered significant mold and water intrusion damage, and that Aull,
Sotheby’s and Montgomery misrepresented the property’s condition and failed to
disclose reports showing drainage, plumbing, and mold problems.

The Concoffs filed suit against Aull,
Sotheby’s and Montgomery.href="#_ftn1"
name="_ftnref1" title="">[1] The operative pleading is the seconded
amended complaint (SAC). As against all
three defendants, the Concoffs alleged claims for fraud (intentional
concealment of material information about water and mold damage), negligent
misrepresentation (false statements about the property’s condition made without
a reasonable grounds for believing them to be true), and intentional infliction
of emotional distress (outrageous conduct in concealing material information resulting
in severe emotional distress). As
against Aull alone, they alleged claims for breach of contract (failure to
perform his contractual promise to disclose material information) and
rescission.

They also alleged a claim for
negligence, styled the seventh cause of action.
The heading for this claim recites that it is for “Negligence Against
Defendants MONTGOMERY, SOTHEBY’S, and DOES 11 through 30, Inclusive.” The heading does not mention Aull.

The cause of action has five
paragraphs, 114-118. Paragraph 114
simply incorporates by reference the underlying factual allegations contained
in the first 44 paragraphs about the parties’ transactions and conduct. Paragraph 115 alleges that “[p]ursuant to the
applicable statutes including, but not limited to, California Civil Code
sections 1102, et. seq., and 2079, et seq., and common law, >Defendants AULL and DOES 1 through 10,
inclusive, owed a duty to PLAINTIFFS to disclose” all material facts concerning
the condition of the property. (Italics
added.)

However, paragraph 116 alleges that
Montgomery and Sotheby’s (no mention of Aull) “breached their duty to exercise
reasonable skill and care in performing their duties in that >said Defendants failed to conduct a
reasonably competent and diligent visual inspect of the PROPERTY and disclose
to [the Concoffs] the [specific] conditions and problems” of the property as
set forth in eight previous paragraphs.
(Italics added.) Paragraph 117
recites that as a result of “>said Defendants’ breaches of their duties
to exercise reasonable skill and care in performing their duties,” the Concoffs
purchased the townhouse and incurred specific economic damages. (Italics added.) Paragraph 118 concludes with an allegation of
emotional and physical
damages as a result of “said
Defendants’” conduct.

Aull filed a cross-complaint seeking
indemnity against Sotheby’s on the basis that Sotheby’s and Montgomery were
responsible for any liability he incurred.
Over the Concoffs’ objection, the trial court (Judge Terry B. Friedman)
ruled that it would conduct a bench trial on the Concoffs’ cause of action to
rescind their purchase of Aull’s townhome and on Aull’s cross-complaint for
indemnity, because those claims sounded in equity. The rescission action claimed that Aull
and/or his agents Sotheby’s and Montgomery had concealed material information
about the property (mold and water damage) and had failed to make the
disclosures required by law during a sale of real property. In particular, the Concoffs claimed that when
Aull had purchased the townhome in December 2005 from Donald and Beverly
Popielarz, Aull received reports identifying mold growth and water intrusion,
but that Aull, Sotheby’s and Montgomery failed to disclose those reports to the
Concoffs.

The bench trial was conducted over 13
days in May, June and July 2009. Fifteen
witnesses testified and dozens of documents were introduced into evidence.

In September 2009, the trial court
issued a lengthy Statement of Decision explaining its resolution of the case,
as follows. When Aull purchased the
townhome in 2005 from the Popielarzes, he “did not read any documents he
signed” in connection with that transaction.
Instead, he relied upon the advice of Montgomery (who represented him
both in his purchase of the townhome as well as its sale to the Concoffs) to
sign the documents. Consequently,
Aull—whom the trial court found to be “highly credible”—lacked any knowledge about
the property’s material defects (mold and water damage) that he could have
learned had he read the reports furnished to him during his purchase of the
townhome. Therefore, Aull did not intend
to deceive the Concoffs about the property’s condition.

At the time of the Concoffs’ purchase
in 2006, it was a “hot” residential real estate market. There were sharp price increases and a heavy
demand for property. Montgomery was
“extremely busy” and did not give “careful attention to detail.” In particular, she “failed to read or review
many documents which she transmitted” to the Concoffs’ agent Gavin for
signature.href="#_ftn2" name="_ftnref2" title="">[2] Overall, Montgomery failed “to act as a
thorough, careful professional in her work on the Aull-Concoff
transaction.” Although she knew about
the property’s material defects, she did not intend to deceive the Concoffs
about the property’s condition. Because
the Concoffs had developed reasonable doubts about Montgomery’s representations
concerning the townhome, they “did not justifiably rely on Sotheby’s
representations” about the property.href="#_ftn3" name="_ftnref3" title="">>[3]

Each of the Concoffs “carefully and
thoroughly read every document which they signed” related to their purchase of
Aull’s townhome. Further, Andrew
Concoff testified that because of a
serious health condition, he wanted to avoid “exposing himself to dangerous
airborne toxins.” In light of that
testimony, the trial court found “that it is not credible that Dr. Concoff
could have reasonably relied on statements by Montgomery regarding the
condition of the property.” (See fn. 3, >ante.)

During the Aull-Concoff escrow,
Sotheby’s supplied the Concoffs with the required disclosure forms. In addition, the Concoffs retained their own
physical inspector. His report recommended
that they retain a drainage specialist to inspect for water intrusion. Many of the documents that the Concoffs read
during escrow “contained clear, boilerplate statements directing them to obtain
independent inspections of the property, including
to determine the presence of mold.”
(Italics added.) The Concoffs did
not follow any of those recommendations and their failure to do so was not
reasonable.

The trial court concluded: “The Concoffs fail[ed] to meet their burden
to establish all necessary elements that either Aull or Sotheby’s defrauded
them by concealment or misrepresentation.
[¶] The Concoffs cannot rescind
the purchase agreement with Aull.
[¶] Judgment for Defendants and
against [the Concoffs] on the bifurcated issue of rescission.”



2. Aull
Offers a Proposed Judgment

In November 2009, Aull’s attorney proffered
a proposed judgment for the trial court to sign. It is entitled “Judgment After Trial By Court
[Proposed].” It recited, inter alia,
that the trial court’s factual conclusions disposed of all of the causes of
action in favor of the three defendants.
The defendants filed a brief in support of the proposed judgment. In regard to the negligence cause of action,
the brief stated that that claim was directed only at Sotheby’s and Montgomery
and that the claim failed because the trial court’s factual findings
established that the Concoffs had failed to act reasonably on their own
behalf.

The Concoffs’ opposition urged that
the trial court’s findings did not dispose of all remaining causes of
action. In particular, they argued that
the findings that intentional fraud had not been committed did not resolve
their claim for negligent misrepresentation.
Contrary to what the Concoffs’ attorney asserted at the hearing on this
appeal, this pleading did not argue
that the seventh cause of action for negligence claim was directed at Aull in
addition to Sotheby’s and Montgomery.

On December 4, 2009, a hearing was
conducted before Judge Friedman at which the parties discussed the proposed
judgment. In regard to the negligence
cause of action, the court stated: “As
to the negligence cause of action versus Montgomery, isn’t there yet to be
determined the issue of comparative negligence, which was not before the court
[in the bench trial]? . . . I would
be prepared to sign the judgment, except that I do not believe that it would
apply to the negligence cause of action.”
(Italics added.)

During presentation of argument from
the Concoffs’ attorney, the following colloquy occurred:

“[The
trial court]: Is the negligence claim
against Aull as well as Montgomery?



“[The
Concoffs’ attorney]: I believe so.



“[Aull’s
attorney]: I believe not, Your Honor.



“[The
trial court]: I didn’t think it was,
which is why I only addressed it as to Montgomery.



“[The
Concoffs’ attorney]: Forgive me, then,
if I’ve gotten that wrong.”





At the end of the hearing, the trial
court noted that the proposed judgment would entirely dispose of the Concoffs’
case not only against Aull, but also against Sotheby’s and Montgomery. The court stated that it did not agree: “Paragraph 4 [of the proposed judgment]
provides that the negligence cause of action is disposed [of]. [But] I think that there are factual issues
with regard to the negligence claim that are not encompassed within the scope
of the initial phase of the trial, not the least of which is the question of
comparative negligence. So unless you
convince me otherwise, I’m not prepared
to sign a judgment that disposes of the negligence cause of action as to
Sotheby’s and Montgomery.” (Italics
added.) Counsel for Sotheby’s and
Montgomery argued that the negligence claim against his clients was essentially
the same as the negligent misrepresentation claim and was resolved by the
court’s factual findings that the Concoffs had not acted reasonably and could
not have justifiably relied upon Montgomery’s or Sotheby’s representations
about the property. Counsel for the
Concoffs argued that the still-unresolved issue of comparative fault applied
both to their negligence and negligent misrepresentation claims. He did not argue that the negligence cause of
action was directed at Aull in addition to Sotheby’s and Montgomery.

The trial court ruled: “I’m
not going to grant judgment to Montgomery and Sotheby’s on the seventh cause of
action [for negligence].” (Italics
added.) The court explained that “>[t]he only outstanding issue on the judgment
proposed by [defendant] Aull” was
his liability for breach of contract.
(Italics added.) The court
directed the parties to file briefs solely on that issue.href="#_ftn4" name="_ftnref4" title="">>[4] Lastly, Judge Friedman stated that he would
retire effective February 28, 2010 but would not be presiding after December
7.



3. The
Trial Court Files its Judgment and Aull Serves Notice of Entry of Judgment

On December 30, 2009, the trial court
filed its judgment that specifically incorporated by reference its earlier
Statement of Decision. The court made
three changes to Aull’s proposed judgment.
The court drew a line through the word “proposed” so that the document
is now entitled “Judgment After Trial By Court.” The court also drew lines through the two
words that would have disposed of the
seventh cause of action for negligence.
In pertinent part, the judgment reads:

“1. Plaintiffs having failed to meet their
burden to establish all necessary elements that Defendants defrauded them by
concealment or misrepresentation, Plaintiffs are not entitled to rescission of
the purchase agreement between Plaintiffs and Aull;



“2. The finding against Plaintiffs and in favor
of Aull on the rescission claim moots the issue of indemnity between Aull and
Sotheby’s;



“3. Plaintiffs’ failure to prove the elements
of fraud with respect to their rescission cause of action is dispositive of
Plaintiffs’ Second, Third, Fifth, and Sixth causes of action for Fraud and
Negligent Misrepresentation;



“4. The Factual Conclusions reached by the
Court are dispositive of the First, Seventh, and Eighth cause of action
for Breach of Contract, Negligence and Intentional Infliction of
Emotional Distress;



“5. The finding against Plaintiffs and in favor
of Aull on the remaining causes of action moots the issue of indemnity with
respect to those causes of action between Aull and Sotheby’s.



“THEREFORE,
IT IS ORDERED, ADJUDGED AND DECREED THAT:



“Plaintiffs
are to take nothing by their Second Amended Complaint, and Judgment shall be
entered in favor of Defendants and against Plaintiffs.



“Cross-Complainant
Aull is to take nothing by his Cross-Complaint, and Judgment shall be entered
in favor of Cross-Defendants and against Cross-Complainant.



“Aull
is awarded costs in the amount of $__________ against Plaintiffs Andrew Concoff
and Simon Concoff.



“Sotheby’s
are awarded costs in the amount of $__________ against Plaintiffs Andrew
Concoff and Simone Concoff, and costs in the amount of $__________ against Cross-Complainant
Aull.”





On January 11, 2010, Aull’s attorney
served notice of entry of judgment by mail.
On January 15, 2010 Aull, Sotheby’s and Montgomery filed costs
memorandum. By February 4, 2010, the
case had been reassigned to Judge Richard A. Stone.

On March 1, 2010, Aull filed a motion
for attorney fees. The Concoffs’
opposition, filed April 8, 2010, contended that the motion was premature. For the first time in the trial court, they
argued that the judgment was not final as to Aull, because their negligence
claim included him and it was still pending.href="#_ftn5" name="_ftnref5" title="">>[5]




4. The
Concoffs’ Writ Petition

On March 17, 2010, the time to file a
notice of appeal from the trial court’s December 30, 2009 judgment expired.href="#_ftn6" name="_ftnref6" title="">[6] The Concoffs did not file a notice of appeal
within that period. Instead, the next
day, on March 18, 2010, they filed a petition for extraordinary relief in this
court. (Concoff v. Superior Court (Aull, et al.) – B223080.)

The petition primarily challenged the
trial court’s May 21, 2009 order that the Concoffs’ cause of action for
rescission would be tried to the court and the trial court’s subsequent
decision that the Concoffs had failed to establish fraud, the predicate to the
equitable remedy of rescission. The
petition claimed that “[n]o final or appealable judgment has yet been entered”
in the case because the Concoffs’ negligence claim against Aull “remains to be
tried.”

On March 26, 2010, we summarily denied
the petition “on the ground [the Concoffs] are not entitled to extraordinary
relief from an appealable order. (Code
Civ. Proc., § 904.1, subd. (a)(1).)”
On May 20, 2010, the California Supreme Court denied the Concoffs’
petition for review.



5. The
Concoffs’ Motion for Relief from Default

On May 5, 2010, the Concoffs filed a
motion for relief from default in the trial court. They requested that the notice of entry of
judgment be stricken as premature, arguing that the December 30, 2009 judgment
did not constitute a final judgment because their negligence claim against Aull
was still pending. In the alternative,
the Concoffs, relying upon subdivision (b) of section 473,href="#_ftn7" name="_ftnref7" title="">>[7]
argued that their failure to file a timely appeal from that judgment (assuming
the trial court found it to be a final judgment) was the result of counsel’s
excusable neglect or mistake for which they should not be penalized. On that basis, they asked the trial court to
vacate entry of the judgment and re-enter it so that they could “move for a new
trial and if necessary file a timely appeal.”
A declaration from the Concoffs’ counsel supported the request. He conceded that he had been served on or
about January 11, 2010 with the “Notice
of Entry of Judgment” but averred that he had not filed a notice of appeal
because he and co-counsel believed the December 2009 judgment was not and could
not be construed as a final judgment because the Concoffs’ negligence claim
against Aull had not yet been resolved.



6. The
Parties’ Brief the Issue of the Finality of the December 30 Judgment

At a April 13, 2010 status conference,
Judge Stone “invited briefing on the limited topic of whether or not the 7th
cause of action in the Second Amended Complaint is or remains viable as to Dr.
Aull.” Aull’s brief argued that the
December 30 judgment was final as to him.
The Concoffs filed opposition. In
addition, a portion of the opposition filed by Sotheby’s and Montgomery to the
Concoffs’ request for relief from default argued that the December 30 judgment
was final as to them, even though Judge Friedman had deleted the words that
would have resolved in their favor the negligence claim in the seventh cause of
action. Sotheby’s and Montgomery relied
upon the fact that the December 30 judgment recited that a judgment was to be
entered “in favor of Defendants” and that Sotheby’s was awarded costs against
the Concoffs.href="#_ftn8" name="_ftnref8"
title="">[8]



7. The
Trial Court’s Order

After presentation of oral argument,
Judge Stone filed an order on October 21, 2010 concluding that Aull’s
motion for attorney fees was not untimely, because the December 2009 judgment
resolved all the Concoffs’ claims against Aull.
As to Sotheby’s and Montgomery, however, the court ruled that there was
a clerical error in the judgment insofar as it purported to grant judgment for
them on the negligence claim. We set
forth the court’s findings.

Beginning with the Concoffs’ motion
for relief from default, the court found that the mandatory provisions of
section 473, subdivision (b) regarding relief from attorney fault did not apply
because counsel’s mistake or neglect had not resulted in the entry of a
default, default judgment or dismissal.
(See, e.g., Vandermoon v. Sanwong
(2006) 142 Cal.App.4th 315, 319-321.) In
this proceeding, the Concoffs do not challenge that ruling.

With respect to Aull, the court found
that based upon its reading of the Concoffs’ second amended complaint, “the
only reasonable conclusion is that Dr. Aull was not meant to be contemplated in
the [seventh] cause of action for Negligence.”href="#_ftn9" name="_ftnref9" title="">>[9] Further, “[b]ased upon [Judge Friedman’s]
statements during court proceedings after the taking of trial testimony,” and
because the negligence claim did not include Aull as already explained (see fn.
9, ante), “Judge Friedman’s
intentions are clear that the judgment was to dispose of the entire action by
[the Concoffs] against Dr. Aull.”
Therefore, the court concluded that Aull’s motion for attorney fees “was
not premature, as the December 30 judgment was intended to be, and was, a full
and complete disposition of all causes of actions against Dr. Aull.”href="#_ftn10" name="_ftnref10" title="">[10]

Insofar as Sotheby’s and Montgomery
were concerned, the court determined that there was “an internal inconsistency
in the judgment” that was a result of a clerical error by Judge Friedman. The court found that Judge Friedman had
intended for the Concoffs to be able to pursue their negligence cause of action
against Sotheby’s and Montgomery, but that the judgment’s language
inadvertently precluded that result because it ordered entry of judgment in
favor of Sotheby’s and Montgomery and awarded them costs.href="#_ftn11" name="_ftnref11" title="">[11] The court reasoned that pursuant to
subdivision (d) of section 473, it had the power to correct that clerical error
in order to conform the judgment to Judge Friedman’s clear and unambiguous
intent. To that end, it deleted the
language directing entry of judgment in favor of Sotheby’s and Montgomery and
awarding Sotheby’s costs against the Concoffs.
Consequently, the relevant portion of the judgment now reads: “Plaintiffs are to take nothing by their
Second Amended Complaint against Defendant Aull, and Judgment shall be entered
in favor of Defendant William Aull and against Plaintiffs.”

Finally, the court found that “[t]here
has been no modification of the judgment for Dr. Aull and against [the
Concoffs].” The court took no position
on the “timeliness” of any appeals concerning Aull and the Concoffs.

On October 26, 2010, the Concoffs
filed a notice of appeal from the trial court’s October 21 order and “from all
orders preliminary thereto including but not limited to the said ‘Judgment
After Trial By Court’ [entered on December 30, 2009] insofar as it was adverse
to [the Concoffs] and in favor of Aull, and from all orders for costs and
attorney fees.”

On November 10, 2010, Sotheby’s and
Montgomery filed a notice of appeal from the October 21, 2010 order,
characterizing it as “[a]n order after judgment under Code of Civil Procedure
section 904.1(a)(2).”



>DISCUSSION

>A. TIMELINESS OF THE
CONCOFFS’ APPEAL

The Concoffs’ appeal is based on their
notice of appeal from the October 2010 order of Judge Stone. Insofar as Aull is concerned, that order
rejected the Concoffs’ contention that Aull’s motion for attorney fees
following entry of December 2009 judgment in his favor was premature. Yet in their appeal, the Concoffs purport to
challenge rulings encompassed by the December 2009 judgment, having never filed
a notice of appeal from that judgment.
Aull contends that the Concoffs’ appeal challenging the December 2009
judgment is untimely and must be dismissed.href="#_ftn12" name="_ftnref12" title="">>[12] For reasons explained below, we agree.

“Compliance with the time for filing a
notice of appeal is mandatory and jurisdictional. [Citation.]
If a notice of appeal is not timely, the appellate court must dismiss
the appeal. [Citation.]” (Laraway
v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582.) In this case, California Rules of Court, rule
8.104(a)(2), contains the applicable time period for filing a notice of
appeal. It provides that a notice of
appeal must be filed within 60 days after a party has been served with a
document entitled “Notice of Entry” of judgment. If a party is served by mail, the party has
an additional five days in which to file the notice of appeal. (§ 1013, subd. (a).)

Here, Aull served the Concoffs with
notice of entry of the December 2009 judgment by mail on January 11, 2010. Thus, the Concoffs were required to file a
notice of appeal by March 17, 2010. They
failed to do so.

The Concoffs contend that their
failure to file a notice of appeal from the judgment is not fatal to their
appeal, because the judgment was not final as against Aull. To be final, a judgment must dispose of all
issues between the two parties and terminate the litigation on the merits
between them. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304; see
also § 577 [“A judgment is the final determination of the rights of the
parties in an action or proceeding.”].)
Stated another way, if no causes of action remain to be adjudicated
between the parties, the judgment is final.
(Kurwa v. Kislingler (2012)
204 Cal.App.4th 21, 28.) That an issue
of attorney fees or costs may remain does not preclude a final appealable
judgment from being entered. (>Laraway v. Pasadena Unified School Dist.,
supra, 98 Cal.App.4th at p. 582.)
Nor does it matter that a plaintiff (here, the Concoffs) may still have
causes of action pending against other defendants (here, Sotheby’s and
Montgomery). (§§ 578 & 579; >Stonewall Ins. Co. v. City of Palos Verdes
Estates (1996) 46 Cal.App.4th 1810, 1830.)

According to the Concoffs, the
December 2009 judgment did not dispose of their seventh cause of action for
negligence, Aull was a defendant in that cause of action in addition to
Sotheby’s and Montgomery, and therefore the judgment was not final as to Aull. The defect in this argument is that Judge
Friedman clearly intended the judgment to dispose of all the Concoffs’ claims
against Aull, and the judgment certainly so provides. It was therefore a final judgment.

Aull was named as a defendant in the
causes of action for breach of contract,
fraud, negligent misrepresentation, and intentional infliction of emotional
distress (the first, second, third, and eighth causes of action). The judgment recites that its factual
findings resolved those claims against the Concoffs and rendered moot their
claim for rescission (the fourth cause of action). On that basis, the trial court ordered that
judgment be entered in favor of Aull. In
addition, Judge Friedman awarded Aull
his costs against the Concoffs and ruled that Aull’s cross-complaint against
Sotheby’s and Montgomery was moot, orders that he would have made only if he
intended the judgment to dispose of all of the Concoffs’ causes of action
against Aull.

Moreover, as set forth earlier, a
hearing was conducted on December 4, 2009 to discuss, among other issues,
Aull’s proposed judgment. Judge Friedman
opined that the negligence claim found in the seventh cause of action did not
include Aull. Aull agreed and the
Concoffs ultimately acquiesced in that understanding. Later in the hearing, Judge Friedman stated
that the only issue remaining for him
to decide regarding Aull’s potential liability to the Concoffs was the breach
of contract claim. Further, when Judge
Friedman discussed whether his factual findings resolved the Concoffs’
negligence claim against Sotheby’s and Montgomery, he did not indicate that his
tentative analysis (the issue of comparative fault remained to be resolved)
applied to any negligence claim against Aull.
Nor did the Concoffs urge that this issue of negligence applied to Aull
or that judgment could not be entered in Aull’s favor because the negligence
claim included him as a defendant and remained outstanding.

In short, from the face of the
judgment and the proceedings leading to it, we see no reasonable basis for
contending that the judgment was not intended to, and did not, dispose of all
claims against Aull. If the Concoffs
believed that the court erred in concluding that all claims against Aull were resolved,
that was an issue for appeal, or perhaps a post-judgment motion for a new trial
or a motion to set aside and vacate the judgment if the motions had been filed
within 15 days of service of notice of entry of judgment. (§§ 659, subd. (2) [motion for new
trial] and 663a, subd. (2) [motion to set aside and vacate the judgment]; see >In re Marriage of Micalizio (1988) 199
Cal.App.3d 662, 670 [“[T]rial court remedies are generally speedier and less
costly than an appeal.”].) Regardless,
as here relevant, the Concoffs failed to appeal from the judgment and their
current attempt to appeal from it (based on a notice of appeal from the October
2010 ruling deeming the Aull’s motion for attorney fees timely) is ineffectual.

None of the Concoffs’ remaining arguments
has merit. They argue that to the extent
that Judge Stone’s October 21, 2010 order concluded that their negligence cause
of action did not include Aull, that ruling was error. However, that argument is not properly before
us because it erroneously assumes that insofar as the Concoffs and Aull are
concerned, Judge Stone’s order is appealable.
It is not. Judge Stone’s order
did not amend the judgment insofar as
Aull was concerned. Instead, it found
clerical error in the judgment only insofar as Sotheby’s and Montgomery were
concerned and corrected that error.href="#_ftn13" name="_ftnref13" title="">>[13] That correction left Aull as the sole
defendant for whom judgment was entered.
As a result, the December 30 judgment “ascertained and fixed absolutely
and finally the rights of [the Concoffs] as against [Aull] in relation to the
subject matter of the litigation between them.
No issue between them was left for further consideration.” (George
v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 482.) In other words, Judge Stone’s October 2010
order amending the judgment to correct the error in regard to Sotheby’s and
Montgomery “did not, in any wise, affect the original judgment as between [the
Concoffs and Aull] [so that the] original [December 30] judgment was the final
judgment as between [them].” (>Ibid.)

The Concoffs contend that in his
October 2010 order “Judge Stone did not just make a clerical correction, he
made a substantive legal ruling that gave rise—for the first time—[to] a right
on the Concoffs’ part to appeal the judgment.” Not so.
Whether the Concoffs’ appeal from the December 2009 judgment is untimely
has nothing to do with Judge Stone’s ruling.
Judge Stone simply rejected the Concoffs’ argument that Aull’s motion
for attorney fees was premature. In
doing so, he rejected the Concoffs’ argument that the judgment was not final as
to Aull, but that ruling did not somehow create or revive the right to appeal
from that judgment when the time period to file a notice of appeal had expired
long before that. “A party who fails to
take a timely appeal from a decision or order from which an appeal might
previously have been taken [here, the December 30, 2009 judgment] cannot obtain
review of it on [a purported] appeal from a subsequent judgment or order. [Citations.]”
(Ostling v. Loring (1994) 27
Cal.App.4th 1731, 1749.)

Lastly, the Concoffs argue that “until
Judge Stone issued his [October 2010] order determining that the Seventh Cause
of Action in the [SAC] did not set forth a cause of action for negligence
against Aull, [they] properly construed the judgment signed by Judge Friedman
on December 30, 2009 as interlocutory.”
But, as we have stated, the face of the judgment and the proceedings
leading to Judge Friedman’s execution of the judgment leave no reasonable basis
to believe that the judgment was not final as to Aull. Moreover, implicit in the Concoffs’ argument
is the premise that their counsel’s belief that the December 30 order was
interlocutory and therefore not appealable could constitute an excusable
mistake entitling them to relief. As
noted earlier, this was the basis of the Concoffs’ section 473, subdivision (b)
motion for relief from default. The
trial court, consistent with precedent, found that the statutory provision did
not apply because counsel’s conduct did not result in entry of a default,
default judgment, or dismissal. (>Vandermoon v. Sanwong, supra, 142
Cal.App.4th at pp. 320-321.) The
Concoffs, with good reason, do not contest that ruling in this proceeding. “[E]xcept as authorized by statute, section
473, subdivision (b) may not excuse the untimely filing of a notice of
appeal. [Citation.] ‘The requirement as to the time for taking an
appeal is mandatory, and the court is without jurisdiction to consider one
which has been taken subsequent to the expiration of the statutory period. In the absence of statutory authorization,
neither the trial nor appellate courts may extend or shorten the time for
appeal, even to relieve against mistake, inadvertence, accident, or
misfortune.’ [Citation.]” (Maynard
v. Brandon (2005) 36 Cal.4th 364, 372-373.)

For these reasons, the December 2009
judgment constituted the final judgment between the Concoffs and Aull. The Concoffs’ failure to file a timely appeal
from that judgment requires dismissal of their appeal. This result precludes consideration of any of
the Concoffs’ contentions that Judge Friedman committed error either in
conducting the bench trial or in rendering his factual findings and entering
judgment based upon those findings.href="#_ftn14" name="_ftnref14" title="">>[14]



>B. THE CROSS-APPEAL
FILED

BY SOTHEBY’S
AND MONTGOMERY

As indicated earlier,
Sotheby’s and Montgomery filed, on November 10, 2010, a notice of appeal from
Judge Stone’s October 21, 2010 order correcting the clerical error in Judge
Friedman’s December 30, 2009 judgment. They
characterized it as an appeal taken from “[a]n order after judgment under Code
of Civil Procedure section 904.1(a)(2).”


On December 6, 2010, the Concoffs
filed a motion to dismiss that appeal.
They claimed that no final judgment had been entered in their action
against Sotheby’s and Montgomery because the October 21, 2010 order meant that
the negligence cause of action remained to be tried against Sotheby’s and
Montgomery.href="#_ftn15" name="_ftnref15"
title="">^[15] As such, they urged that the appeal was taken
from a non-appealable interlocutory order and should be dismissed.

On December 17, 2010, Sotheby’s and
Montgomery filed opposition to the motion.
In addition, they filed what they characterized as a “protective” writ
petition (Sotheby’s and Montgomery v.
Superior Court (Concoff, et. al –
B229560).) The petition sought to
preserve their right to seek review in this court of the October 21, 2010 order
in the event we granted the Concoffs’ motion to dismiss the appeal.

We summarily denied the motion to
dismiss the appeal, and, on the same day, summarily denied the petition “on the
ground [Sotheby’s and Montgomery’s] arguments will be considered with the
related pending appeal (B228490).”

The issue is again before us, having
been raised by the Concoffs in their
brief.

To decide whether an appealable order
exists, we must first determine whether the October 21, 2010 order can properly
be characterized as an order correcting a clerical error in the judgment. It can.
Section 473, subdivision (d) provides, in relevant part: “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 clerical error in the judgment
includes inadvertent errors made by the court ‘which cannot reasonably be
attributed to the exercise of judicial consideration or discretion.’ [Citations.]
‘Clerical error . . . 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.]’
[Citation.] A judicial error is
the deliberate result of judicial reasoning and determination. [Citation.]

“The court’s inherent power to correct
clerical errors includes errors made in the entry of the judgment or due to
inadvertence of the court. ‘The term
“clerical error” covers all errors, mistakes, or omissions which are not the
result of the exercise of the judicial function. If an error, mistake, or omission is the
result of inadvertence, but for which a different judgment would have been
rendered, the error is clerical and the judgment may be corrected. . . .’ [Citation.]
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, 1034-1035, italics added.)

Particularly relevant to this case is
the principle that “[i]f the trial judge through inadvertence or mistake makes
or signs an order or decision different from that which the judge intended, he
or she may correct this error as readily as that of the clerk in entering a
judgment. [Citations.]” (7 Witkin, Cal. Procedure (5th ed. 2008)
Judgment, § 69, p. 605.) Thus, it
has been held that “‘[w]here the judgment as signed does not express the actual
judicial intention of the court, but is contrary thereto, the signing of such a
purported judgment is a clerical error rather than a judicial one.’ [Citations.]”
(In re Marriage of Sheridan
(1983) 140 Cal.App.3d 742, 746 [the trial court properly corrected clerical
error when it modified the judgment to include a provision reserving
jurisdiction over spousal support because the reporter’s transcript and the
court’s minutes established that the trial court had intended to include such a
provision in the judgment]; see also Martin
v. Ray (1946) 74 Cal.App.2d 922 [the judgment prepared by counsel and
signed by the judge failed to include a provision set forth in the judge’s
prior memorandum of decision; this constituted clerical error that the court
could subsequently correct].)

The record in this case reveals
clerical error. At the December 4, 2009
hearing, Judge Friedman indicated several times that he did not intend to enter
judgment in favor of Sotheby’s and Montgomery because he believed that issues
remained to be tried on the Concoffs’ negligence claim against those two
defendants. After that hearing, Judge
Friedman partially revised the proposed judgment in order to implement that intent: he drew lines through the two references to
the seventh cause of action for negligence so that the judgment as entered no
longer recited that the court’s earlier factual conclusions were dispositive of
that claim. However, Judge Friedman
committed clerical error when he then failed to delimit the language in the
paragraph that ordered entry of judgment in favor of the defendant>s.
Consistent with his previously expressed intent, he should have struck
the “s” from “defendants” and deleted the language awarding Sotheby’s its costs
against the Concoffs. His failure to do
so constitutes clerical error that Judge Stone could later correct. (See Tokio
Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75
Cal.App.4th 110, 117 [“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.]”)

Having concluded that Judge Stone’s
October 21, 2010 order corrected clerical error in the December 30, 2009
judgment signed by Judge Friedman, the next issue is whether Sotheby’s and
Montgomery can appeal from that order.
Generally, an order correcting clerical error in a judgment is appealable
as an order made after judgment.
(§ 904.1, subd. (a)(2); Ames
v. Paley (2001) 89 Cal.App.4th 668, 672, fn. 3.)

The Concoffs, however, urge that in
this particular case, the order is not appealable. They argue:
“[T]he previous [December 30, 2009] ‘Judgment’ on its face expressly
declines to decide the Seventh Cause of Action in the Complaint against
Sotheby’s and Montgomery for Negligence, and as such, no final judgment has
ever been entered against either of them in the underlying action.” According to the Concoffs, Judge Stone’s
October 21, 2010 order simply “correct[ed] a judgment that was interlocutory”
and that no appeal lies from an interlocutory order.

Sotheby’s and Montgomery ask us to
reject that argument and, instead, to “find that when a judgment’s language
plainly declares the plaintiff [here, the Concoffs] to take nothing and
judgment be entered in favor of all defendants [here, Aull, Sotheby’s and
Montgomery] without qualification, it was and is a final judgment under Code of
Civil Procedure section 904.1, subdivision (a)(1). Likewise, an order changing or modifying such
a judgment is appealable under Code of Civil Procedure section 904.1,
subdivision (a)(2), even if the effect of such an order is to render all or
part of the judgment to no longer be final.”


The parties have not offered any case
authority directly addressing this particular fact pattern and our own research
has found none. Based upon the peculiar
facts of this case, we conclude that Sotheby’s and Montgomery have the better
argument. On its face, the December 30,
2009 judgment directed entry of judgment in favor of Sotheby’s and Montgomery
although that direction was a result of clerical error. Nonetheless, given the language of the
judgment, the Concoffs could have appealed from it and claimed that entry of
judgment in favor of Sotheby’s and Montgomery was premature because, as
indicated by Judge Friedman’s remarks at the December 4, 2009 hearing and his
editing of the December 30, 2009 judgment (deletion of the references to the
negligence cause of action), the Concoffs’ negligence claim against Sotheby’s
and Montgomery was still pending.href="#_ftn16"
name="_ftnref16" title="">[16] However, the Concoffs did not pursue that
avenue. Instead, they waited more than
four months to file a section 473 motion in the trial court that ultimately
resulted in Judge Stone’s finding that clerical error existed in the entry of
the judgment. Judge Stone’s correction
of that clerical error resulted in there no longer being a final judgment as
between the Concoffs and Sotheby’s and Montgomery.

The general rule is that to be
appealable, a postjudgment order “must raise issues different from those
arising from an appeal from the judgment, ‘“affect the judgment or relate to it
by enforcing it or staying its execution,”’ and itself be final.” (In re
Marriage of Lloyd (1997) 55 Cal.App.4th 216, 220, citing >Lakin v. Watkins Associated Industries
(1993) 6 Cal.4th 644, 651.) Judge
Stone’s October 21, 2010 order meets these criteria. The order is final. The order affected the December 30, 2009
judgment by essentially taking away its status as a final judgment of the
action between the Concoffs and Sotheby’s and Montgomery. And an appeal from the order raises issues
different from those that would have arisen had the Concoffs appealed from the
December 30, 2009 judgment. We therefore
conclude that the October 21, 2010 order constitutes an order from which
Sotheby’s and Montgomery can properly appeal.

We therefore turn to the merits of the
contention advanced by Sotheby’s and Montgomery on their cross-appeal. We review Judge Stone’s October 21, 2010
order correcting clerical error in the judgment under the deferential abuse of
discretion standard. (>Conservatorship of Tobias, supra, 208
Cal.App.3d at p. 1035; Pettigrew v. Grand
Rent-A-Car (1984) 154 Cal.App.3d 204, 212; and Escobedo v. Travelers Ins. Co. (1964) 227 Cal.App.2d 353, 361; see
also Bastajian v. Brown (1941) 19
Cal.2d 209, 215 [“The trial court’s finding upon conflicting evidence that a
clerical error exists and the nature thereof, is conclusive upon this court.”]
and Meyer v. Porath (1952) 113
Cal.App.2d 808, 811 [“A finding, express or implied . . . that a clerical error
exists in the judgment in question is, if supported by substantial evidence, a
conclusive finding which binds an appellate court on review.”].)>

Sotheby’s and Montgomery urge that
Judge Stone’s October 21, 2010 order must be reversed because it improperly
corrected judicial, not clerical, error.
They argue that neither Judge Friedman’s statements during the December
4 hearing nor his striking out of the words “seventh” and “negligence” from the
signed judgment could “have an effect on the final decree which expressly and
unambiguously disposed of all of the Concoffs’ claims in favor of all defendants
and granted costs to [Sotheby’s] and Montgomery and against the Concoffs.” They speculate
that Judge Friedman “lined through those words [‘seventh’ and ‘negligence’] >prior to the December 4, 2009 hearing,
evaluated the further briefing and the Concoffs’ assertion that all defendants
were named in the Seventh Cause of Action, and, between submission and his
signing of the judgment, determined that all claims were barred by his Phase
One findings and signed the judgment fully intending judgment for all defendants
as expressed in the plain language, but simply failed to ‘stet’ his prior
lines.” (Italics added.)

Their argument is not persuasive. First, Sotheby’s and Montgomery
mischaracterize the additional briefing the trial court received and considered
after the December 4 hearing but before signing the judgment on December
30. The briefs addressed only whether
the trial court’s earlier factual findings resolved the Concoffs’ breach of
contract claim against Aull. Nothing in
those briefs addressed the negligence claim in general or, specifically, the
Concoffs’ ability to pursue a negligence claim against Sotheby’s and Montgomery
notwithstanding the trial court’s earlier factual findings.

Second, Sotheby’s and Montgomery
essentially advanced the same speculative arguments in the trial court. Judge Stone rejected them in a detailed and
thoughtful ruling. (See fn. 11, >ante.)
Substantial evidence supports that ruling. Judge Stone relied primarily upon two factors
to conclude that Judge Friedman entered the judgment in favor of Sotheby’s and
Montgomery as the result of clerical error.
The first was Judge Friedman’s statements at the December 4, 2009
hearing that he would not grant judgment to Sotheby’s and Montgomery because
issues remained to be tried on the Concoffs’ negligence cause of action. The second was that Judge Friedman deleted,
using the same blue pen he used to strike out the word “Proposed,” the words
“Seventh” and “Negligence” from the judgment he signed and entered.href="#_ftn17" name="_ftnref17" title="">>^[17] These facts constitute substantial evidence
to support Judge Stone’s finding of clerical error; ergo, no abuse of
discretion occurred in rendering that finding.

Lastly, we reject Sotheby’s and
Montgomery’s attempt to expand the scope of issues that can be reviewed on this
cross-appeal. They contend that Judge
Friedman erred when he concluded at the December 4, 2009 hearing that his
findings in favor of Sotheby’s and Montgomery on the Concoffs’ negligent
misrepresentation claim did not preclude the Concoffs from proceeding on their
negligence claim. That contention cannot
be raised on their cross-appeal. The
cross-appeal is limited to review of Judge Stone’s October 21, 2010 order
correcting clerical error in the judgment.
The ruling made ten months prior by Judge Friedman that Sotheby’s and
Montgomery seek to contest is an interlocutory ruling that can be reviewed only
on an appeal prosecuted after a final judgment is entered in the Concoffs’
action against Sotheby’s and Montgomery.



DISPOSITION



To the extent that the Concoffs’
appeal attempts to raise issues that could only be raised had a timely appeal
been taken from the judgment entered on December 30, 2009, the appeal is
dismissed as untimely; to the extent that the Concoffs’ appeal attempts to
contest orders made on October 21, 2010, the appeal is dismissed as taken from
a non-appealable order; and to the extent that the Concoffs’ appeal contests
the trial court’s post-judgment order awarding attorney fees to Aull, that
order is affirmed. In regard to the
cross-appeal filed by Sotheby’s and Montgomery, the trial court’s October 21,
2010 order correcting clerical error in the judgment is affirmed. The parties are to bear their own costs in
this proceeding.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We concur:







EPSTEIN, P. J.







SUZUKAWA, J.