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Case Number: D073824
Judge: Guerrero, J.
Court: California Court of Appeals Fourth Appellate District, Division One on appeal from the Superior Court, County of San Diego
Plaintiff's Attorney: Arezoo Jamshidi, and Jessica S. Doidge
Defendant's Attorney: Andrew E. Hall, and Daniel T. Watts
Description: Bryan and Jackie Myers (Appellants) appeal from a judgment entered after the
trial court granted a motion for entry of judgment pursuant to the parties' stipulated
settlement (Code Civ. Proc., § 664.6) and from a subsequent order denying their motion
to set aside or vacate the judgment (id., §§ 473, subd. (d), 663).1 The settlement was
intended to resolve a dispute between neighbors. Appellants contend the judgment does
not conform to the terms of the parties' stipulated settlement, which was entered orally
before the court. Edward and Zlaine Machado, as trustees of the Edward and Zlaine
Machado Family Trust Dated June 30, 2003 (the Machados), plaintiffs below, contend
Appellants' failure to comply with the terms of the settlement relieved them of their
obligation to perform certain provisions originally contemplated in the parties' settlement,
and thus the entry of a judgment modifying the original settlement terms was justified.
We conclude that the judgment entered pursuant to section 664.6 erroneously fails to
conform to the terms of the parties' stipulated settlement agreement. We therefore
reverse the judgment and direct the trial court to enter a new judgment setting forth all the
material terms of the parties' February 2, 2016 settlement agreement, as reflected in the
The case involves a dispute between neighbors. Their homes sit on adjacent lots
that were once part of a single parcel which, when subdivided, did not account for a five-
1 All statutory references are to the Code of Civil Procedure unless otherwise noted.
2 In a separate appeal, Appellants challenge a postjudgment cost award entered in
April 2018. (Machado, et al., v. Myers, et al., (Aug. 16, 2019, D074282) [nonpub.
opn.].) To the extent Appellants address the cost award in the present appeal, we
consider those facts only as relevant to the issues raised herein—the direct appeal from
the judgment and postjudgment order denying Appellants' motion to set aside or vacate
the judgment. On this basis, we grant Appellants' motion to augment the record and deny
Respondents' motion to strike Appellants' opening brief. We address Appellants' legal
challenge to the costs award in D074282.
foot setback for a part of one home now owned by Appellants. The problematic property
line has spawned a host of disputes between the neighbors involving encroaching tree
roots and the placement of an air conditioning unit, fencing, and security cameras.
The Machados sued Appellants in 2014. The operative complaint asserts causes
of action for nuisance, trespass, harassment, and violation of the right to privacy, among
others. In February 2016, the case settled during a settlement conference on the eve of
trial. The settlement terms were recited on the record, in open court. The parties
acknowledged agreement to all terms.
The record reflects the following agreement:
"Number 1: [Air conditioning] unit on [Appellants'] property.
"1(a): [Appellants] will move the [air conditioning] unit from its
current location to a location that is not on the east side of their
property, north of the current back door, or the north side of their
"1(b): [Appellants] shall refrain from installing/operating other
mechanical equipment in that area.
"1(c): The [Appellants] will move the [air conditioning] unit
within 45 days at [Appellants'] expense.
"Number 2[:] Brazilian pepper trees.
"2(a): [Appellants] agree to remove the subject Brazilian pepper
trees within 45 days at their expense.
[¶] . . . [¶]
"Number 4: Solar panels. [¶] Plaintiffs shall remove the existing
solar panels on their duplex roof within 30 days at their expense.
"Number 5: Fence.
[¶] . . . [¶]
"5(b): Fence near [air conditioning] unit:
"5(b)(i): This fence shall remain in its present location
pursuant to the License Agreement stated below.
"5(b)(ii): As part of plaintiffs' construction of the concrete
block fence, plaintiffs will extend the wood fence to the location of
the new block wall.
"5(b)(iii): The fence in this location is the property of the
plaintiffs; however, [Appellants'] facing shall remain.
"Number 6: Surveillance Cameras: [¶] The [Appellants] agree to
relocate the security cameras within 30 days at their expense in a
manner so as not to give the appearance of pointing into the
"Number 7: License Agreement:
"7(a): Plaintiffs and [Appellants] will enter into a License
Agreement that the parties will record with the County and that will
run with the land.
"7(a)(i): The License Agreement will allow [Appellants]
and their successors to use plaintiffs' property near the current
location of the [air conditioning] unit.
"7(a)(i)(1): The parties will attach a survey and
legal description to the License Agreement in order to accurately
show the subject area.
"7(a)(i)(2): Other than the current facing,
[Appellants] shall refrain from attaching anything further to the
"7(a)(i)(3): The License Agreement shall contain a
mediation provision in connection with future disputes.
"7(a)(ii): The License Agreement will be revocable upon
certain conditions[:] [(]Counsel will meet and confer on these terms
and others regarding revocability[.)]
"7(a)(ii)(1): In the event [Appellants] or their
successors install mechanical equipment in the subject area.
"7(a)(ii)(2): In the event [Appellants'] residence is
demolished, improved, et cetera.
"7(a)(ii)(3): If City forces owner of [Appellants']
residence to remove the encroaching structure or conform with City
"And these are all things that counsel will meet and
confer on as we prepare the License Agreement.
"7(a)(ii)(4)[:] other conditions that the counsel and
the parties will meet and confer on in preparing the License
"7(a)(ii)(5)[:] standard terms and conditions will
"Number 8: The [Appellants'] payment to plaintiffs.
"8(a): [Appellants], through their insurance carrier, shall make
payment to plaintiffs in the amount of $7500 within 30 days.
"Number 9: Upon completion of the settlement terms:
"9(a)[:] Machados, plaintiffs, will dismiss their First Amended
Complaint with prejudice within 30 days upon execution of the
"(b)[:] The parties will mutually release one another from all
further claims regarding any of the currently existing conditions on
[¶] . . . [¶]
"9(f)[:] [E]ach attorney [sic] shall bear its own attorney's fees
"9(g)[:] The court shall retain jurisdiction under 664.6 to enforce
the terms of the settlement agreement."
Each party and their attorneys acknowledged on the record they understood and
agreed to be bound by these settlement terms. The Machados' counsel expressly
acknowledged the agreement that each party would bear its own attorney fees and costs
and agreed to waive a previously submitted cost bill.
The settlement, unfortunately, did not end the neighbors' dispute. In June, the
Machados moved ex parte for a temporary restraining order to prevent Appellants from
continuing to operate the air conditioner, which had not been moved despite Appellants'
commitment to do so in the settlement. The court denied the ex parte application but set
a date to hear a motion to enforce the settlement.
The Machados moved to "compel compliance with [the] settlement agreement"
under section 664.6.3 In support of their motion, they submitted a proposed judgment
which generally tracked the terms of the parties' oral settlement agreement, as reflected in
the record. An introductory paragraph of the proposed judgment stated Appellants had
violated the agreement: "[The parties' oral settlement] agreement required [Appellants]
to act within 45 days to relocate an air conditioning unit on their property, a legal
description of which follows. [Appellants] did not so act, and thus violated the settlement
agreement. [Appellants] also failed to relocate one or more security cameras, . . . and
failed to cease operation of the air conditioning unit, constituting additional violations of
Appellants did not oppose the Machados' section 664.6 motion. However, they
filed a "notice of compliance with settlement terms," signed by their attorney, which
3 The moving papers were entitled, "Plaintiffs' notice of CCP § 664.6 motion and
motion to comply [sic] compliance with settlement agreement, and for CCP § 128.5
sanctions." The trial court denied the Machados' request for sanctions.
stated that the subject trees had been removed, the air conditioning unit had been
relocated, the security cameras had been repositioned, and the $7,500 payment had been
made, all pursuant to the terms of the settlement agreement.4
After hearing argument on the motion, the trial court took the matter under
submission.5 In August, the trial court granted the motion under section 664.6. In a
minute order, the court found the parties had entered into an enforceable settlement
agreement on the record and Appellants "did not abide by the terms of the settlement."
The minute order did not identify the terms of the parties' settlement agreement, nor did it
direct the parties to submit a judgment. The court did not enter judgment at that time.
In November, the parties filed status reports. Appellants represented that the
parties' obligations under the settlement agreement had been met, with the exception of
reaching an agreement on the terms of the license agreement. The Machados, however,
averred that Appellants continued to violate the settlement agreement and engaged in
"acts of contempt." In particular, the Machados averred that two security cameras still
gave the appearance of being pointed toward the Machados' house; Appellants had
erected a 9 foot high, 40 foot long canvas barrier between the properties; and Appellants
had improved their residence by installing a patio cover and awnings, an automatic
4 The notice of compliance was filed after the time to file responsive papers had
passed. The Machados objected to Appellants' notice. The order granting the Machados'
motion did not indicate that the trial court declined to consider the Appellants' late-filed
notice of compliance; however, the trial court did describe the motion as "unopposed."
(Cal. Rules of Court, rule 3.1300(d) ["If the court, in its discretion, refuses to consider a
late filed paper, the minutes or order must so indicate."].)
5 No transcript of this hearing was included in the record.
sliding driveway gate, a new front door with surrounding new windows, a new front gate,
and a new side-yard fence. The Machados argued that these improvements triggered
their ability to revoke any license agreement. Finally, the Machados reported that it was
Appellants' fault the parties had so far failed to execute a recordable license agreement
because Appellants refused to confer in good faith regarding additional conditions upon
which the Machados could revoke the license agreement.
The parties appeared for a status conference. Although no transcript of the
conference appears in the record, a minute order reflects that the court conferred "with
counsel and the parties regarding outstanding settlement terms." In a subsequent filing,
Mr. Machado reported that, at the status conference, the Machados had offered to
purchase Appellants' property. The purchase was not consummated, but the parties
continued negotiations, during which Appellants considered moving the fence to the
property line in exchange for the Machados releasing the lis pendens on Appellants'
According to Mr. Machado, negotiations ended "abruptly" when, in
November 2017, Appellants—represented by new counsel—filed their own motion to
enforce the settlement agreement pursuant to section 664.6. Appellants contended in
their motion that the Machados were unwilling to negotiate regarding terms of the license
agreement, which, though revocable under certain conditions, was part of the parties'
settlement agreement. Appellants' motion was scheduled for hearing on January 26,
The Machados responded in December 2017 by filing an application to enter
judgment pursuant to the court's 2016 order granting their section 664.6 motion. In their
application to enter judgment, the Machados stated they had not submitted a judgment for
entry immediately after their section 664.6 motion was granted because they believed it
would disrupt their continued good faith efforts to negotiate a resolution of the parties'
dispute. However, faced with Appellants' motion, they now sought entry of judgment.
The Machados argued that, based on the trial court's prior finding that Appellants
" 'did not abide by the terms of the settlement agreement,' " any further performance by
the Machados—including entering into the license agreement that would allow the fence
between the properties to remain in place—was therefore excused. The Machados
submitted a proposed judgment "on stipulation" they claimed reflected the terms of the
parties' oral settlement agreement recited on the record before the court with one
exception: it omitted any reference to the license agreement. The Machados contended
this omission was warranted because Appellants' alleged breach excused their
performance as to the licensing agreement.
Seven days after the Machados submitted their application for judgment, the trial
court entered the requested judgment.6
Appellants applied ex parte to vacate the judgment, and when that application was
denied, they filed a noticed motion to set aside the judgment (§ 473, subd. (d)) or in the
6 On December 20—one day before judgment was entered—Appellants' counsel
attempted to schedule an ex parte hearing to convert the application to a noticed motion;
however, judgment was entered before the ex parte hearing, scheduled for January 3,
alternative to vacate the judgment and enter a different judgment (§ 663).7 Appellants
argued that entry of a judgment that did not conform to the parties' settlement agreement
was error under section 664.6. The judgment should be set aside pursuant to section 473,
subdivision (d), either because the nonconformity was due to clerical error or because the
judgment was "void." Otherwise, the judgment should be vacated pursuant to
section 663 because it had an incorrect legal basis and was inconsistent with or
unsupported by the facts.
In opposition, the Machados argued that Appellants had not objected to the
proposed judgment or the arguments offered in the application prior to the entry of
judgment and, "even assuming arguendo there ever was an obligation to enter into a
license agreement, that obligation was excused upon the finding in the [August 2016]
Order that [Appellants] breached the settlement agreement."
At the hearing on Appellants' set-aside motion, the Machados' counsel argued that
entry of judgment was warranted because their section 664.6 motion was properly
noticed and served, and Appellants did not oppose it or object to the order granting it.
The trial court indicated that, if the terms of the judgment did not track the settlement,
Appellants should have "opposed that." The trial court denied the motion. Appellants
timely appealed the judgment and the postjudgment order denying their motion to set
aside or vacate the judgment.
7 Appellants' notice of motion was filed on January 12, 2018, which is 15 days from
the date of service of the written notice of entry of judgment (December 28, 2017).
(§ 663a, subd. (a)(2).) A valid motion to vacate the judgment extends the time to appeal
the underlying judgment. (Cal. Rules of Court, rule 8.108(c).)
The Machados' Motion to Dismiss the Appeal Is Denied
The Machados contend the appeal must be dismissed because the judgment is a
"stipulated judgment" and as such is not appealable. We denied the Machados' previous
motion to dismiss this appeal which was premised on the same argument, and we again
reject the argument.
As a general rule, stipulated judgments are not subject to review on appeal.
(Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 131 [consent judgments are not
appealable].) Here, the judgment was titled as a judgment "on stipulation."8 Despite this
title, characterizing the judgment as a stipulated judgment would elevate form above
substance, which we do not do. (Brown v. Wells Fargo Bank, NA (2012)
204 Cal.App.4th 1353, 1356 ["On appeal, the substance and effect of the order controls,
not its label."]; Civ. Code, § 3528 ["The law respects form less than substance."].) As
discussed in section III post, the judgment entered is different from the terms of the
parties' stipulated settlement, entered orally before the trial court in February 2016, and as
such is not "in reality a consent judgment." (Reed v. Murphy (1925) 196 Cal. 395, 399
["if a consent judgment or decree is different from or goes beyond the terms of the
stipulation which forms its basis, it may be set aside upon appeal or by other appropriate
8 The Machados obtained a judgment using the form approved by the Judicial
Council of California, form JUD-100, entitled, "Judgment." The Machados checked the
box that states, "On Stipulation" before submitting it for the court's consideration and
procedure, as it would not be in reality a consent judgment"]; see Rooney v. Vermont
Investment Corp. (1973) 10 Cal.3d 351, 359 [stipulated settlement that waived rights to
appeal "did not preclude an appeal to determine whether or not the judgment was
authorized by the stipulation"].) The judgment is thus appealable pursuant to Code of
Civil Procedure section 904.1, subdivision (a)(1), and the postjudgment order denying
relief is appealable pursuant to section 904.1, subdivision (a)(2). We deny the Machados'
motion to dismiss the appeal.
The Trial Court Did Not Err in Granting the Machados' 2016 Motion
Pursuant to Section 664.6
Judgment was entered pursuant to the court's 2016 order granting the Machados'
section 664.6 motion. Section 664.6 provides: "If parties to pending litigation stipulate,
in a writing signed by the parties outside the presence of the court or orally before 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" (italics added).
"The statutory procedure for enforcing settlement agreements under section 664.6
is not exclusive. It is merely an expeditious, valid alternative statutorily created."
(Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1681.) "Even though it is not
exclusive, [section 664.6] is intended to provide a means for enforcing an agreement that
requires nothing more than a single motion." (In re Marriage of Woolsey (2013)
220 Cal.App.4th 881, 898.) " 'Although a judge hearing a section 664.6 motion may
receive evidence, determine disputed facts, and enter the terms of a settlement agreement
as a judgment [citations], nothing in section 664.6 authorizes a judge to create the
material terms of a settlement, as opposed to deciding what terms the parties themselves
have previously agreed upon.' " (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360;
accord Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)
As such, "[t]he power of the trial court under Code of Civil Procedure section 664.6 . . . is
extremely limited. [¶] . . . The court is powerless to impose on the parties more
restrictive or less restrictive or different terms than those contained in their settlement
agreement." (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176
A trial court's factual findings on a motion to enforce a settlement pursuant to
section 664.6 are subject to limited appellate review and will not be disturbed if
supported by substantial evidence. (Williams v. Saunders (1997) 55 Cal.App.4th 1158,
1162.) "To the extent we engage in the proper interpretation of section 664.6, however,
we exercise our independent review." (Elnekave v. Via Dolce Homeowners Association
(2006) 142 Cal.App.4th 1193, 1198; accord J.B.B. Investment Partners, Ltd. v. Fair
(2014) 232 Cal.App.4th 974, 984 [factual determinations are reviewed on appeal for
substantial evidence, while legal questions, including "whether the granting of plaintiffs'
motion satisfied the strict requirements of [section 664.6]," are reviewed de novo].)
The Machados moved, pursuant to section 664.6, for an order compelling
Appellants to comply with the parties' oral settlement agreement. Appellants did not
oppose the motion. The trial court determined that the parties entered an enforceable
settlement agreement orally before the court and granted the section 664.6 motion.
Although neither party challenges the court's ruling that the parties entered into an
enforceable settlement agreement, the Machados alleged in their pleadings before the trial
court that there was no "meeting of the minds" with respect to one aspect of the
settlement agreement (the license agreement). We therefore address the threshold issue
of whether the parties have an enforceable agreement under section 664.6 to avoid
disputes regarding this issue during any postjudgment enforcement proceedings.
Based on our review of the record and consideration of the trial court's authority
under section 664.6, we conclude the court correctly determined that the parties entered
into a valid and binding settlement, and thus did not err in granting the motion for entry
of judgment pursuant to section 664.6. All material terms were recited on the record
before the trial court in February 2016, and the parties agreed to be bound by those terms
following an inquiry from the court. Each side asked the court to enter judgment
pursuant to section 664.6, further demonstrating that both sides agree the terms recited on
the record in February 2016 were sufficiently firm and definite to be enforceable by the
The Judgment That Was Actually Entered Is Not Consistent with the Terms of the Parties'
Settlement and Thus Violates Section 664.6
Although we have determined the trial court properly granted the section 664.6
motion, we conclude the trial court erred when it ultimately entered a judgment that was
different from the terms of the parties' stipulated settlement agreement. (Hernandez,
supra, 126 Cal.App.4th at p. 1176 ["The court is powerless to impose on the parties more
restrictive or less restrictive or different terms than those contained in their settlement
Under section 664.6, the Machados were entitled to judgment "pursuant to the
terms of the settlement" (§ 664.6), and nothing more. "The power of the trial court under
Code of Civil Procedure section 664.6 . . . is extremely limited." (Hernandez, supra,
126 Cal.App.4th at p. 1176.) "[T]he trial court is under a duty to render a judgment that
9 To the extent the Machados now claim the provision regarding a license
agreement was not sufficiently specific to be enforceable and binding, we reject that
contention. The parties' agreement to "meet and confer" regarding conditions for
revocation of the license agreement does not render the agreement unenforceable. The
parties' agreement enumerated various conditions for revocation and contemplated only
that the parties would "meet and confer" on these conditions, and neither party contends
an " 'essential element' " of the agreement was reserved for future agreement. (Coleman
Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 405; see also
Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1256 ["where any of the
essential elements of a promise are reserved for the future agreement of both parties, no
legal obligation arises 'until such future agreement is made' "].)
is in exact conformity with an agreement or stipulation of the parties. 'If interpretation of
a stipulation is in order the rules applied are those applied to the interpretation of
contracts. [Citations.] It is not the province of the court to add to the provisions thereof
[citations]; to insert a term not found therein [citations]; or to make a new stipulation for
the parties.' " (Jones v. World Life Research Inst. (1976) 60 Cal.App.3d 836, 840; see
also Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1375
(Leeman) ["[W]hat the court could not do in considering approval of a settlement under
Code of Civil Procedure section 664.6 was to add to or modify an express term of the
settlement."]; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1185 & fn. 10 (Hines)
[reversing judgment that "states some of the settlement terms, but omits others," with
directions to "enter a new judgment pursuant to the terms of the settlement" despite fact
that appellant did not argue in her opening brief that the judgment was incomplete and
despite noting that some of the omitted terms "apparently are moot"]; Weddington
Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 [a judge hearing a
section 664.6 motion may receive evidence, determine disputed facts, and enter the terms
of a settlement agreement as a judgment, but nothing in section 664.6 authorizes a judge
to create the material terms of a settlement, as opposed to deciding what terms the parties
themselves have previously agreed upon].)
Here, more than a year after the trial court granted the Machados' section 664.6
motion, the Machados filed an application for entry of judgment, which was promptly
entered by the court.10 But rather than reflecting the terms of the parties' agreement, the
judgment entered improperly modified the settlement terms. These modifications were
made in connection with the Machados' argument—asserted for the first time in the
application to enter judgment—that the Machados were relieved from any obligation to
enter a license agreement because of Appellants' purported breaches.
The judgment entered omitted any reference to the parties' obligation to enter a
license agreement. In addition, the judgment entered omitted the Machados' obligation to
remove certain solar panels, the parties' agreement to each bear their own attorney fees
and costs, the agreement that the court would retain jurisdiction under section 664.6 to
enforce the terms of the settlement agreement, and the mutual release of claims
contemplated to occur upon the completion of the settlement terms.
Other settlement agreement terms appeared in the judgment with modifications.
For example, with respect to the settlement term regarding relocating the air conditioning
unit, whereas the parties agreed that Appellants would "move the [air conditioning] unit
from its current location" and would "refrain from installing/operating mechanical
equipment in that area," the judgment designates an air conditioning "[r]elocation [a]rea"
and states that Appellants must "refrain from installing/operating other mechanical
equipment anywhere on [Appellants' property] except within the [air conditioning]
10 The Machados' application for entry of judgment was premised exclusively on the
court's order granting their prior section 664.6 motion (including the court's statement
that Appellants "did not abide by the terms of the settlement") and specified no
alternative authority for the entry of judgment.
With respect to the fence near the air conditioning unit, which the parties agreed
"shall remain in its present location pursuant to the License Agreement stated below," the
"Fence to be Built on [the Machados'] Property:
"a. [The Machados], at their expense, shall immediately be
permitted to build a new fence of their choosing, in their absolute
and sole discretion, on the [Machado Property] up to the property
line as depicted and defined in the survey attached . . . .
"b. [Appellants] shall refrain from interfering with the moving
and/or construction of the fence up to the subject property line.
"c. [Appellants] shall immediately remove all of their personal
property from the [Machado property]."
The judgment entered is different from the parties' settlement agreement. As such,
it runs afoul of section 664.6, which allows for entry of judgment "pursuant to the terms
of the settlement." (§ 664.6, italics added.) The judgment must therefore be reversed.
A. Appellants Did Not Forfeit Their Challenge to the Judgment
The Machados argue Appellants "waived" any challenge to the judgment by
failing to oppose the section 664.6 motion and by failing to object to the judgment until
after it was entered.11 We reject both arguments.
By failing to oppose the section 664.6 motion, Appellants did not forfeit (or
waive) their objections to the judgment ultimately entered because the judgment entered
did not conform to the terms of the parties' settlement agreement; nor did the judgment
11 "Over the years, cases have used the word [waiver] loosely to describe two related,
but distinct, concepts." (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)
However, "losing a right by failing to assert it [is] more precisely called forfeiture" while
"intentionally relinquishing a known right" is a "waiver." (Ibid.)
entered conform to the judgment initially proposed when the Machados filed their
section 664.6 motion in July 2016. The most obvious difference between the judgment
proposed then and the judgment ultimately entered in December 2017 is that the
judgment entered completely omitted any reference to the license agreement, while the
2016 proposed judgment referred to the fence and the license agreement as follows: "The
fence near the air conditioning unit on the Machado Parcel shall remain in the location it
occupied on February 2, 2016, provided the parties execute a License Agreement on the
terms stated on the record at the February 2, 2016 settlement conference."
There are other notable differences between the originally proposed and entered
judgments. For example, the proposed judgment included the Machados' obligation to
remove solar panels from the house on their property, while the final judgment omitted
any reference to this obligation. With respect to the relocation of the air conditioning
unit, the proposed judgment provided—consistent with the parties' oral agreement—that,
"At [Appellants'] expense, [Appellants] must relocate the air conditioning unit on the
[Appellants' property] no later than 45 days after entry of this judgment to a location that
is not (a) on the east side of the [Appellants' property], or (b) north of the current back
door to the house on the [Appellants' property], or (c) the north side of the [Appellants'
property]." It further provided, "[Appellants] are immediately and forever restrained
from operating the air conditioning unit on the [Appellants' property] until the air
conditioning unit is relocated pursuant to this judgment." The final judgment, however,
attached a document depicting an air conditioning "[r]elocation [a]rea" and restrained
Appellants from operating mechanical equipment anywhere on their property except
within the air conditioning "[r]elocation [a]rea."
The 2016 proposed judgment contemplated the court would retain jurisdiction
under section 664.6 "to enforce the terms of this [proposed] judgment and settlement." It
also included the parties' mutual release of claims. The final judgment omitted these
Because the judgment entered varies so materially from the parties' settlement
agreement and from the proposed judgment submitted in 2016 in connection with the
Machados' section 664.6 motion, we conclude that by failing to oppose the section 664.6
motion, or to object to the judgment then proposed, Appellants did not forfeit the
arguments now asserted in opposition to the judgment ultimately entered.
Nor is Appellants' failure to object to the application for entry of judgment filed in
December 2017 dispositive. Under court rules, a party generally has 10 days to submit
objections to a proposed judgment. (See Cal. Rules of Court, rule 3.1590(j).) Here, the
trial court entered the requested judgment only seven days after the Machados submitted
their application for entry of judgment—before Appellants had the opportunity to lodge
objections, file opposition papers, or appear for their ex parte hearing.12
12 The Machados filed and served the proposed judgment "on stipulation" on
December 14 with their application for entry of judgment. The court entered judgment
seven calendar days later, on December 21.
B. The Judgment Entered Exceeded the Trial Court's Authority to Resolve
Reasonable Disputes over the Terms of the Settlement Agreement
The Machados contend the judgment should be affirmed because it "explains
which settlement terms have been performed, which have not, and which do not need to
be performed." Therefore, the Machados argue, the judgment was an appropriate
exercise of the trial court's authority under section 664.6 to resolve the parties' reasonable
disputes over the terms of the settlement agreement in order to finally dispose of the
We agree the trial court is empowered under section 664.6 to resolve
reasonable disputes over the terms of the settlement. (See In re The Clergy Cases I
(2010) 188 Cal.App.4th 1224, 1236.) Here, however, it was not the terms of the
settlement agreement that were in dispute. What was disputed was whether Appellants'
actions constituted a material breach of the agreement such that the Machados were
relieved from performing their obligations under the agreement (or, alternatively, whether
the Machados were empowered to revoke the contemplated license agreement). These
disputes are not relevant to the entry of judgment pursuant to section 664.6. (Hines,
supra, 167 Cal.App.4th at p. 1185 ["a party moving for the entry of judgment pursuant to
a settlement under Code of Civil Procedure section 664.6 need not establish a breach of
contract to support relief under the statute"].)
Disputes regarding the Machados' compliance with the settlement agreement may
be relevant to the enforcement of the judgment, once entered, but the parties did not
properly seek this type of relief from the court here.13 Instead, the trial court was asked
to enter judgment "pursuant to the terms of the settlement" under section 664.6. Having
granted that request in August 2016, the trial court could not later omit or modify some of
those same terms from the parties' agreement. (Leeman, supra, 236 Cal.App.4th at
pp. 1374-1375 ["This agreement required no interpretation, nor were there any material
disputed facts concerning the settlement and the parties' intent. [¶] . . . While the court
has the authority to refuse to issue the requested consent judgment, what the court could
not do in considering approval of a settlement under [section] 664.6 was to add to or
modify an express term of the settlement."].)
Moreover, resolving allegations that Appellants breached their obligations on the
Machados' application, without affording Appellants an adequate opportunity to respond
or be heard, was erroneous. Specifically, Appellants were not provided an adequate
opportunity to be heard regarding the Machados' contention, asserted for the first time in
their December 2017 application, that Appellants breached the settlement agreement, or
that their actions permitted the Machados to revoke the parties' contemplated license
agreement. Although the 2016 minute order granting the Machados' section 664.6
13 Trial courts have the inherent authority to enforce their rulings. (See, e.g.,
Security Trust & Savings Bank v. Southern Pac. R. Co. (1935) 6 Cal.App.2d 585, 588 ["It
is a well-established principle of law that a court possesses inherent power to enforce its
judgments."]; §§ 128, subd. (a)(4) [court has inherent power to compel obedience to the
court's judgments, orders, and process in any pending action], 717.010, and 1209,
subd. (a)(5) [nonmonetary judgments are enforceable by invoking the trial court's
contempt powers].) As we discuss post, it may be appropriate for the court to consider
these enforcement issues on remand but it was premature for the court to do so based on
the procedural posture of the case and the scope of the relief requested by the Machados
pursuant to section 664.6.
motion briefly noted Appellants "did not abide by the terms of the settlement," a finding
that a party failed to abide by certain settlement terms does not necessarily support a
finding the party materially breached the parties' agreement. (See Brown v. Grimes
(2011) 192 Cal.App.4th 265, 277-278 [one party's material breach of contract may relieve
the other party from its duty to perform under a contract; question of whether a breach of
an obligation is a material breach, so as to excuse performance by the other party, is a
question of fact].) Only a material breach by Appellants would discharge the Machados
from their duties to perform under the agreement. (Ibid.) Moreover, the parties
contemplated their license agreement would contain a mediation provision "in connection
with future disputes," a process that apparently never took place. Thus, the 2016 minute
order does not support the subsequent, more expansive, findings in the judgment that
Appellants breached the settlement, and that the Machados are excused from further
In sum, there were no disputes regarding the material terms of the parties'
agreement recited on the record in February 2016, and the actions taken by the court in
entering judgment exceeded the actions it was authorized to take based on the specific
request for entry of judgment under section 664.6 that was before the court.
Appellants Were Not Entitled to Set Aside the Judgment Under Section 473 but Were
Entitled to Relief Under Section 663
Appellants moved to set aside the judgment pursuant to section 473,
subdivision (d), or in the alternative, section 663. We conclude the trial court did not err
in denying Appellants' motion under section 473, subdivision (d); however, Appellants
were entitled to relief under section 663.
A. Section 473, Subdivision (d)
Section 473, subdivision (d), provides, "[t]he 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, and may, on motion of either
party after notice to the other party, set aside any void judgment or order" (italics added).
Appellants contend the trial court committed a clerical error by entering a judgment
pursuant to section 664.6 that did not conform to the parties' settlement agreement. We
"The difference between judicial and clerical error rests not upon the party
committing the error, but rather on whether it was the deliberate result of judicial
reasoning and determination. The distinction between clerical error and judicial error is
whether the error was made in rendering the judgment, or in recording the judgment
rendered." (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238
(Rochin); Estate of Eckstrom (1960) 54 Cal.2d 540, 545 ["clerical errors do not include
those made by the court because of its failure to correctly interpret the law or apply the
facts"].) Had Appellants shown the judgment entered by the trial court inadvertently did
not match the terms of the settlement, they could have sought relief under section 473,
subdivision (d). (Ames v. Paley (2001) 89 Cal.App.4th 668, 672-674 [trial court has the
authority to correct section 664.6 judgment to conform to the intended settlement terms].)
But Appellants were not asking the trial court to modify clerical errors in the judgment.
They were asking the court to correct the language of the judgment which the court
intentionally adopted. A trial court "may not amend a judgment to substantially modify it
or materially alter the rights of the parties under its authority to correct clerical error."
(Rochin, at p. 1238; Estate of Burnett (1938) 11 Cal.2d 259, 262 [trial court has no power
to amend its decision where the error is inherently judicial rather than clerical or
inadvertent].) Because the judgment entered was the judgment the Machados requested
upon application to be entered, the error in the judgment (its failure to reflect all the terms
of the parties' agreement) was judicial, not clerical, and section 473, subdivision (d) was
not an appropriate mechanism to remedy the trial court's error here.
Appellants alternatively argue the trial court should have set aside the judgment
because it is void. Appellants argue, mistakenly, that the judgment is void because the
trial court "exceeded its authority" in entering it. Appellants overlook the distinction
between void and voidable judgments. If a court lacks "fundamental authority over the
subject matter, question presented, or party," the judgment it renders is void; however, if
a court "merely act[s] in excess of its jurisdiction or defined power," the judgment it
renders is voidable. (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; see also
Dhawan v. Biring (2015) 241 Cal.App.4th 963, 974-975 [a default judgment entered in
violation of section 580 (which limits relief to the amount stated in the complaint) is also
void, "because it is beyond the court's jurisdiction to enter such a judgment"]; Lee v. An
(2008) 168 Cal.App.4th 558, 566 ["Where, as here, the court has jurisdiction over the
party and the questions presented, but acts in excess of its defined power, the judgment is
voidable, not void."].) Here, the trial court had authority over the subject matter, the
question presented, and the parties, yet acted in excess of its defined power by entering a
judgment inconsistent with the terms of the settlement. Thus, there is no basis to
conclude the judgment is void, rather than voidable, and Appellants were not entitled to
relief from a void judgment under section 473, subdivision (d).
B. Section 663
Appellants alternatively argue the trial court should have vacated or set aside the
judgment under section 663, which provides in part that "[a] judgment or decree, when
based upon a decision by the court, . . . may, upon motion of the party aggrieved, be set
aside and vacated by the same court, and another and different judgment entered, for
either of the following causes, materially affecting the substantial rights of the party and
entitling the party to a different judgment: [¶] . . . [i]ncorrect or erroneous legal basis for
the decision, not consistent with or not supported by the facts . . . ." (§ 663, subd. (1).)
Section 663 "is designed to enable speedy rectification of a judgment rendered
upon erroneous application of the law to facts which have been found by the court or
jury or which are otherwise uncontroverted." (Forman v. Knapp Press (1985)
173 Cal.App.3d 200, 203.) A section 663 motion is properly "made whenever the trial
judge draws an incorrect legal conclusion or renders an erroneous judgment upon the
facts found by it to exist." (County of Alemeda v. Carleson (1971) 5 Cal.3d 730, 738; see
Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14
(Plaza Hollister) [" 'section 663 is a remedy to be used when a trial court draws incorrect
conclusions of law or renders an erroneous judgment on the basis of uncontroverted
Here, the stipulated agreement of the parties, entered orally on the record before
the court in 2016, formed the basis for the trial court's entry of judgment pursuant to
section 664.6. The terms of that agreement are undisputed, yet the trial court entered a
judgment that failed to reflect those terms. The trial court thus entered an erroneous
judgment on the basis of uncontroverted evidence. As such, Appellants were entitled to
relief under section 663, and the trial court abused its discretion in denying such relief.
(Plaza Hollister, supra, 72 Cal.App.4th at p. 14 [relief under section 663 may be granted
upon a showing of an error of law based on uncontroverted evidence].)
The Machados assert that Appellants were procedurally barred from relief under
section 663 for two reasons. First, they contend Appellants failed to comply with
section 663a, subdivision (a), which requires a party "intending to make a motion to set
aside and vacate a judgment . . . [to] file . . . a notice of his or her intention, designating
the grounds upon which the motion will be made, and specifying the particulars in which
the legal basis for the decision is not consistent with or supported by the facts . . . ."
Along with their motion, Appellants filed a notice of motion that designated the grounds
on which the motion was made and specified the legal and factual basis for Appellants'
arguments.14 The Machados provide no authority to support the position that this notice
of motion cannot suffice as a "notice of intention" for purposes of section 663a,
subdivision (a), and we conclude that, here, it did suffice because it adequately
"designat[ed] the grounds upon which the motion" would be made and "specif[ied] the
particulars in which the legal basis for the decision" was erroneous. (§ 663a, subd. (a);
see also Fredrickson v. Superior Court of San Francisco (1952) 38 Cal.2d 593, 598-599
[a defect in the notice of motion under section 473 may be forfeited by the opposing party
who participates in the hearing on the motion without objection].)
Second, the Machados assert that the submission of "another and different
judgment" is a statutory prerequisite to relief under section 663, and Appellants' failure to
file an alternative judgment bars relief. The Machados provide no authority for the
position that filing a separate, alternative judgment is required by section 663; Ryan v.
Rosenfeld (2017) 3 Cal.5th 124, the only case cited, is not authority for this position. The
Machados rely on a statement from Ryan that the fact that "the [section 663] motion did
not seek entry of a judgment different from the one that was entered" may bear on
14 The notice of motion indicated Appellants were seeking relief "on the ground that
the court should vacate the Judgment and enter a different judgment because the legal
basis for the Judgment is incorrect or erroneous and not consistent with the facts for the
following reasons: (1) the Judgment entered is inconsistent with the relief requested in
Plaintiffs' Motion for Enforcement and the Court's Order thereon; (2) a judgment entered
pursuant to a stipulation of the parties that goes beyond the terms of the parties'
stipulation is void and may be set aside; and, (3) the Court has exceeded its authority
under Code of Civil Procedure section 664.6 by entering a Judgment which modifies and
omits terms of the parties' settlement agreement." The notice of motion was
accompanied by a memorandum of points and authorities further explaining the basis for
the requested relief under section 663.
whether the motion was proper. (Id. at p. 128, fn. 2 [holding an order denying a
section 663 motion is appealable even if it raises issues that could have been litigated via
an appeal of the judgment], italics added.) Seeking entry of a different judgment is not
necessarily the same thing as submitting a physical copy of the proposed alternative
judgment. A party can seek entry of a different judgment by describing what they are
requesting, particularly where the nature of their request is clear. Here, Appellants'
section 663 motion clearly sought entry of a judgment different from the one that was
entered and specifically requested "entry of judgment according to the terms of the
parties' settlement as read into the court's record on February 2, 2016." We thus reject the
Machados' procedural challenges to Appellants' section 663 motion.
Procedure on Remand
Because the judgment entered states some of the settlement terms but omits or
modifies others, it fails to accurately reflect the terms of the parties' settlement agreement
and therefore fails to comply with section 664.6. (§ 664.6 [court "may enter judgment
pursuant to the terms of the settlement"]; Hernandez, supra, 126 Cal.App.4th at p. 1176
["The court is powerless to impose on the parties more restrictive or less restrictive or
different terms than those contained in their settlement agreement."].) The court
previously concluded the parties entered into a valid and binding settlement agreement,
and we agree the parties' settlement agreement, which was entered on the record before
the trial court in February 2016, is valid under section 664.6. Thus, on remand the trial
court should enter a new judgment, setting forth all the material terms of the parties'
settlement agreement. Pursuant to the parties' settlement agreement, the trial court shall
retain jurisdiction under section 664.6 to enforce the agreement. Thus, after entry of
judgment, the trial court may, in accordance with applicable rules of procedure, exercise
its inherent and statutory authority to enforce the judgment, including making
determinations, as appropriate, regarding breach, materiality, and excuse from
performance. We express no opinion on how the trial court should resolve such claims in
the exercise of its authority.
Outcome: The judgment is reversed with directions to enter a new judgment setting forth all
the material terms of the parties' February 2, 2016 settlement agreement, as reflected in the record. Appellants are entitled to costs on appeal.