Opinion
Defendant Hugo Alcaraz (Alcaraz) appeals from the trial court’s entry of a default judgment against him, claiming that the default should be set aside because it was obtained through the mistake, fraud and
Facts and Procedural History
Dakota’s verified third amended complaint alleged that Dakota entered into 330 purchase agreements with Alcaraz and other defendants not party to this appeal (collectively Defendants). These agreements stated that Dakota would buy approximately 5,836 pay phones from Defendants. Defendants agreed to lease the pay phones from Dakota in what is known as a leaseback (see Rev. & Tax. Code, § 6010.65) and place them in public locations. Alcaraz agreed to personally guarantee each of the 330 agreements.
In its complaint, Dakota alleges causes of action against Defendants for (1) breach of contract, (2) fraud, (3) conversion, (4) an accounting, (5) a constructive trust, and (6) injunctive relief. Defendants allegedly breached each of the agreements in January 2006, when they failed to make their lease payments for the 5,836 pay phones. The unpaid amounts totaled $461,044. Defendants also breached the agreements by (1) entering into similar leaseback agreements with other parties, (2) intentionally failing to purchase the pay phones when the lease agreements expired, (3) intentionally failing to maintain the pay phones, (4) intentionally failing to place the pay phones in the locations designated in the agreements, (5) intentionally failing to notify Dakota of the changes in the locations of the pay phones, (6) intentionally failing to indemnify Dakota for lost equipment, and (7) failing to pay for third party bills related to the pay phones. Dakota alleged specifically against Alcaraz that he breached his guarantee to pay the monies owed, and that he was still in possession of and collecting money from pay phones that
In its second cause of action for fraud, Dakota alleged that Alcaraz had been taking millions of dollars from the companies that were also named as defendants and knew that these companies did not have the money to make the monthly lease payments to Dakota and other investors. Alcaraz allegedly used the money provided by new investors to make monthly payments to prior investors. Dakota and other investors paid Alcaraz “millions of dollars.” Indeed, Dakota alleged that it was induced to spend $10,863,000 on pay phones as a result of Alcaraz’s fraud. In its prayer for relief, Dakota sought “damages in an amount not less than $45,000,000.”
The trial court entered a default judgment against Alcaraz on September 4, 2008, awarding Dakota $45 million in compensatory damages and specifying that $14,968,500 of that amount was based upon the fraud of Alcaraz. Notice of entry of that judgment was served on Alcaraz on September 8, 2008. On September 23, 2008, Alcaraz filed a timely notice of intention to move for a new trial. (§ 659 [notice of intention to move for a new trial must be filed within 15 days of the date of mailing notice of entry of judgment].) Alcaraz asserted that the damages and attorney fees awards were excessive and that Dakota failed to include a statement of damages in its third amended complaint. Dakota opposed the motion, in part based upon its assertion that the trial court lacked jurisdiction to decide the motion.
On December 29, 2008, an order of the trial court was filed purporting to grant the motion for a new trial, in part, to limit the amount of damages attributable to Alcaraz’s fraud to the amount set forth in the operative third amended complaint, and denying the motion in all other respects. An amended judgment of default was entered against Alcaraz on January 14, 2009, identical in every respect to the September 4, 2008, judgment except that the amount of the compensatory damages attributed to the fraud of Alcaraz was $10,863,000 (a reduction of $4,105,500). Notice of entry of the amended judgment was served on Alcaraz on January 16, 2009. On February 17, 2009, Alcaraz filed a notice of appeal “from the judgment entered on January 14, 2009 . . . .” On March 4, 2009, Dakota filed what it deemed to be a notice of cross-appeal, challenging the trial court’s December 12, 2008, order purporting to grant, in part, Alcaraz’s motion for a new trial.
A. Disposition of the Cross-appeal
In its cross-appeal, Dakota asserts that the trial court had no jurisdiction to grant Alcaraz’s motion for a new trial. An order granting a new trial is an appealable order. (§ 904.1, subd. (a)(2), (4).) Specifically, Dakota alleges that the motion for new trial was denied by operation of law on November 7, 2008, 60 days after notice of entry of the September 4, 2008, judgment was served. (§ 660.) We agree.
The power of a trial court to rule on a motion for a new trial expires 60 days after (1) the clerk mails the notice of entry of judgment, or (2) a party serves written notice of entry of judgment on the party moving for a new trial, whichever is earlier, or if no such notice is given, then 60 days after filing of the first notice of intent to move for a new trial. (§ 660.) If the motion for a new trial is not ruled upon within the 60-day time period, then “the effect shall be a denial of the motion without further order of the court.” (§ 660.) The 60-day time limit provided in section 660 is jurisdictional. Consequently, an order granting a motion for a new trial beyond the relevant 60-day time period is void for lack of jurisdiction. (Fischer v. First Internat. Bank (2003)
Alcaraz cannot argue that he was disadvantaged by the trial court’s decision to continue the hearing on the motion for a new trial. “It is the duty of the [moving] party to be present and see that his motion for a new trial is set for hearing within the statutory [time] period. If it has been inadvertently continued by the court to a date too late under the statute the party should move the court to advance the matter on the calendar. When [the party] is guilty of lack of diligence in the prosecution and presentation of his motion, he cannot complain of the court’s inadvertence. And when counsel for both parties consent to a continuance without considering that the extension will be beyond the time the court can act on the motion, the effect is to deprive the court of the power to act. It effectively denies the motion without further order. [Citation.]” (Meskell v. Culver City Unified School Dist. (1970)
Dakota served Alcaraz’s trial attorney with notice of entry of the September 4, 2008, judgment on September 8, 2008. Alcaraz filed his motion for a new
Alcaraz contends that the trial court had jurisdiction to rule on his motion for a new trial in December 2008, because a final judgment in the case was not entered until November 18, 2008, when the issue of his cross-complaint was resolved. We are not persuaded. On January 5, 2009, the trial court ordered that “Alcaraz’s cross-complaint be stricken nunc pro tunc as of September 21, 2007, the date it was filed,” because Alcaraz was in default at the time of filing, and the cross-complaint should not, therefore, have been accepted and filed by the trial court clerk.
At oral argument, Alcaraz argued that this court and the trial court were estopped from concluding that the trial court did not have jurisdiction to rule on the motion for new trial, given Alcaraz’s detrimental reliance on the
We analyze the third element first—whether Alcaraz was ignorant of the fact that he was in default. On September 4, 2007, the trial court vacated a default entered against Alcaraz and certain corporate defendants. On September 18, 2007, Dakota moved for a default to be entered against Alcaraz. The trial court entered the default the same day. On September 21, 2007, the trial court corrected its September 4 order nunc pro tunc to reflect that the default was vacated only as to the corporate defendants. On the same date Alcaraz filed both his cross-complaint and his answer to Dakota’s third amended complaint. On September 24, 2007, the trial court struck Alcaraz’s answer, citing the request for entry of default that had been filed and acted upon on September 18.
Although the September 24, 2007, order did not refer to Alcaraz’s cross-complaint, we infer that he was aware that he was in default when he filed that document because (1) the cross-complaint and the answer were filed the same day; and (2) the answer was stricken because Alcaraz’s default had been entered on September 18, 2007. Knowing that he was in default, Alcaraz should also have known that he could not file a cross-complaint. (A & B Metal Products v. MacArthur Properties, Inc. (1970)
That is not the end of the discussion however. The simple fact that the trial court stated that it was granting the motion for a new trial in part does not mean that is, in essence, what the trial court did. “ ‘The true measure of
The September 4, 2008, default judgment included an amount for fraud damages in excess of that demanded in the operative third amended complaint. A default judgment entered in excess of the amount demanded in the complaint is void to that extent. (Greenup v. Rodman (1986)
The trial court was within its right to do so. A void judgment is subject to either direct or collateral attack. (In re Marriage of Lippel (1990)
An order so modifying a judgment is appealable as an order after a final judgment. (Balaam, supra,
B. Alcaraz’s Appeal Must Be Dismissed as Untimely
Jurisdiction of the Court of Appeal is limited in scope to the notice of appeal and the judgment appealed from. (Soldate v. Fidelity National Financial, Inc. (1998)
In Torres, supra,
In Stone v. Regents of University of California (1999)
Stone in turn cites George v. Bekins Van & Storage Co. (1948)
Nevertheless, in reaching its conclusion, the George court unnecessarily digressed into an analysis of the trial court’s right to amend a judgment and the effect thereof. All of this discussion is dicta. The court first considered the fact that a trial court has the authority to amend a judgment under the power given to it by section 662 and also has the inherent authority to correct “ ‘clerical error’ ” in its judgments, defined as “all errors, mistakes, or omissions which are not the result of the exercise of the judicial function.” (George, supra, 83 Cal.App.2d at pp. 480-481.) It makes the statement that an amendment to correct clerical error “leaves the original judgment otherwise effective and unimpaired.” (Id. at p. 481.) Nevertheless, the court thereafter, citing to Spencer v. Troutt (1901)
In the case law this discussion of “clerical error” versus “judicial error” is consistently related to the trial court’s ability to amend a judgment, whether it be on its own motion at any time (in the case of “clerical error”) or according to statutory authority upon timely noticed motion (in the case of “judicial error”). (See, e.g., cases collected in Notes of Decisions, § III, Amendment or Correction of Judgment, 15 West’s Ann. Code Civ. Proc. (1979 ed.) foll. § 473, pp. 172-194.) Ultimately, however, the question whether a trial court has the ability to amend and under what circumstances it may amend a judgment is a different question than what effect any such modification might have on the time in which to appeal from the judgment. Thus, the question of “clerical error” versus “judicial error” does not resolve the issue.
The crux of the problem, instead, is whether there is a substantial change in the rights of the parties such that allowing an amendment nunc pro tunc (relating back to the original judgment) would unfairly deprive them of the
As indicated above, in the instant case, the trial court properly modified the judgment to strike that portion of the damages that was in excess of those requested in the operative complaint. (Becker, supra,
In Becker, supra,
Here, Alcaraz was not deprived of his right to contest the September 4, 2008, default judgment, or any other ruling of the trial court. “It is not
Arguably an alteration in the judgment involving in excess of $4 million appears to be substantial and to materially affect the rights of the parties. However, when the issues are considered in a less superficial fashion and under the rubric of the case law discussed above (which reveals that the “rights” with which we are concerned is the right to appeal), the alteration is not substantial and does not materially affect the parties’ rights under the circumstances of this case. Though the monetary positions of the litigants have been changed, in doing so the trial court did not deprive the parties of their ability to challenge any portion of the judgment. Rather, it merely altered their positions in the litigation to accord with the way things are required to be by law. As with postjudgment orders filling in the blanks for attorney fees and interest discussed above, any challenge to the modification itself could have been raised on appeal from the postjudgment order modifying the judgment. (Balaam, supra,
Alcaraz’s appeal is dismissed as untimely. The trial court’s December 29, 2008, order, challenged by Dakota, is construed as an order modifying a partially void judgment and is affirmed as such. Dakota is awarded its costs on appeal.
Richli, J., and Miller, J., concurred.
Notes
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Alcaraz filed two requests for judicial notice in this court, one on December 11, 2009, and the other on December 28, 2009. The latter motion was also alternatively a request to allow the production of additional evidence. Because the dismissal of the appeal renders the proposed evidence irrelevant, both requests and the alternative motion are denied. (People ex rel. Lockyer v. Shamrock Foods Co. (2000)
Although the motion was heard on December 12, 2008, the order was actually filed on December 29, 2008, and the appeal is deemed to have been taken from that order since the trial court required that a new order and judgment be prepared. (Luz v. Lopes (1960)
On January 5, 2009, Judge Tranbarger signed an order striking Alcaraz’s cross-complaint nunc pro tunc and it was filed the same day. On January 12, 2009, a second order was signed by Judge Tranbarger and filed, striking the cross-complaint; however, the second order was not made retroactive to 2007. Indeed, nothing in the second order mentions the legal concept of nunc pro tunc. Both orders reference that the hearing on Dakota’s motion to strike the cross-complaint took place on November 18, 2008. At that hearing, Judge Tranbarger stated, “[w]e are resolving [this motion] by striking the Cross-Complaint and holding that the clerk should not have accepted it. And that’s the ruling of the Court.” Because the trial court stated that the clerk should not have accepted the cross-complaint, we infer that the order striking the cross-complaint nunc pro tunc is the accurate order, and, therefore, we rely on that order. (See People v. Malabag (1997)
The petitioner had actually filed and lost an appeal from the original judgment. However, because it was later discovered that he had not been named in that judgment, it was determined that his first appeal was a nullity because, not being named in the judgment, he was not an aggrieved party, and the appellate court therefore had no jurisdiction. Because the petitioner could not have appealed from the first judgment, the trial court could not amend it nunc pro tunc and thereby render his subsequent appeal untimely. (Spencer, supra, 133 Cal. at pp. 607-609.)
On August 7, 2009, this court issued an order denying Dakota’s motion to dismiss Alcaraz’s appeal for being untimely. The court explained that the motion was denied because the amended judgment did substantially modify the original judgment. This court found that the reduction in the fraud damages involved the exercise of judicial discretion. The appellate record in the instant case was filed on September 4, 2009—approximately one month after this court’s order denying Dakota’s motion to dismiss. Upon our review of a complete record and further analysis of the law, we conclude that our original holding was incorrect for the reasons explained ante. (See generally Delmonico v. Laidlaw Waste Systems, Inc. (1992)