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Court of Appeal, First District, Division 2, California.

Faalilo FALAGAI, Plaintiff and Appellant, v. Michael MANSFIELD, et al., Defendants and Respondents.

Civ. 51004.

Decided: May 17, 1983

Joe R. McCray, A Law Corporation, San Francisco, for plaintiff and appellant. Conrad L. Cox, Bell, Cox & Mannon, Ukiah, William E. Geary, Geary, Shea & O'Donnell, Santa Rosa, for defendants and respondents.

This is an appeal by Faalilo Falagai from a judgment entered in his favor on May 15, 1980, for $71,412.00 plus costs.   Two post-trial orders are also being appealed, an order taxing plaintiff's costs entered May 8, 1980, and an order awarding costs to codefendant Michael Mansfield.

Appellant sued respondent (Santa Rosa Crane & Rigging Company, Inc.) and others, including Santa Fe Equipment Company, Grove Manufacturing Company, Walter Kidde Company, Michael Mansfield, and the Masonite Corporation for personal injuries, alleging negligence, products liability and other theories.

In July of 1979, appellant settled with Masonite Corporation for $60,000.00 and with Santa Fe Equipment Company, Grove Manufacturing Company, and Walter Kidde Company for $240,000.00.   The total settlement was $300,000.00.

The trial commenced initially on July 24, 1979, before a jury.   The remaining defendants were Mansfield and the respondent.   Upon respondent's motion, the trial court ordered a mistrial.   The trial commenced again on February 19, 1980, before a jury.   The defendants were again Mansfield and respondent.   Appellant voluntarily dismissed as to Mansfield after all of the evidence was presented, but before argument and instructions.

On March 5, 1980, the jury returned a verdict in favor of appellant as follows:

1. Michael Mansfield was the agent or employee of respondent at the time of the accident.

2. Respondent was not negligent in leasing a crane without an anti-two block device.

3. Michael Mansfield was negligent in the operation of the crane at the time of the accident.

4. The damages were $371,412.00.

5. Appellant was not negligent.

6. Michael Mansfield's (respondent's agent) negligence was the sole cause of the injury.

On March 6, 1980, the clerk of the court entered a judgment on the special verdict.   This judgment incorporated by reference the special verdict of the jury reached the previous day.

Thereafter, appellant and Mansfield filed declarations of costs, and each then filed motions to tax costs.   On April 22, 1980, the trial court denied respondent's motion to tax costs, except as to the jury fees for the first trial of July 24, 1979, but also denied appellant's motion to strike Mansfield's cost bill.   However, on May 8, 1980, the trial court reconsidered its previous ruling denying respondent's motion to tax costs and entered a new and different order, denying appellant approximately $9,000.00 in previously approved costs.   Meanwhile, on March 14, 1980, respondent filed a Notice of Intent to Move for a New Trial, and on March 17, 1980, a Notice of Intent to Request Entry of Judgment Upon Special Verdict.

On April 22, 1980, the trial court granted respondent's request to enter judgment on the special verdict.   The judgment requested on the special verdict was for $71,412.00, i.e., the jury verdict of $371,412.00 less the $300,000.00 settlement.

Respondent's motion for a new trial was denied on May 8, 1980.   And, a judgment in the sum of $71,412.00 reflecting the previous settlement of $300,000.00 was entered on May 15, 1980.

In early 1976, Masonite Corporation contracted with Stearns-Roger, a Denver-based construction firm, to install large “air scrubbers” in its Ukiah, California, plant.   Mansfield had been employed by respondent for several years before that as a crane operator, foreman and vice-president.   It being respondent's business to lease cranes, Mansfield proposed to Stearns-Roger that respondent's 25-ton mobile crane be leased.   Stearns-Roger agreed on the condition that Mansfield operate the crane.   Although Mansfield went on the direct payroll of Stearns-Roger for the duration of the job, he returned to respondent's payroll immediately after completing the Masonite job for Stearns-Roger.

Appellant was employed by Stearns-Roger as a rigger.   That job entailed appellant's working on the floor of the plant, hooking and unhooking loads to the crane lines.   There were two lines—a load line and a whip line, the former for heavy loads, the latter for lighter loads.   The whip line had a “headache ball” affixed to the end of the line above the hook to keep tension on the line to avoid snarling the line on the crane's drum.

The crane, manufactured by Grove Manufacturing Company and distributed by Santa Fe Equipment Company, had a telescoping boom.   When in the process of extending the boom, an operator must let out both lines simultaneously.   If this is not done, the load block or the headache ball will strike the tip of the boom.   In the case of the headache ball, the single line may be sheared by the force of the blow, causing the headache ball to fall.   The phenomenon in which the headache ball strikes the tip of the boom is known as “two-blocking.”

Mansfield admitted he negligently extended the boom without looking at it, and without letting out the whip line.   The resulting “two-block” sheared the line and the 102-pound headache ball fell 32 feet, striking appellant in the head and face.

The issues presented by this appeal are as follows:

1. Whether the judgment entered on May 15, 1980, is valid.

2. Whether the award of costs to Mansfield was proper.

3. Whether the order of May 8, 1980, amending the award of costs to appellant was proper.

Appellant's first contention is that the judgment on the special verdict entered by the clerk on March 6, 1980, was the final judgment and the trial court did not have jurisdiction to change it subsequently.

Section 877 of the Code of Civil Procedure provides that where a release or a dismissal is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, such release or dismissal “shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant․”  There is no dispute that under this section respondent would be entitled to a credit of $300,000 for the pretrial settlements reached with Masonite Corporation, Santa Fe Equipment Company, Grove Manufacturing Company, and Walter Kidde Company, unless the court lost jurisdiction on March 6, 1980.

Appellant asserts that the March 6 judgment, which did not take into account the settlements, was a judicial error on the part of the trial court.   He cites McConville v. Superior Court (1926) 78 Cal.App. 203, 248 P. 553, for the proposition that a trial court has no jurisdiction to correct its own judicial error, after entry of judgment.   In McConville, after a court trial the judge entered judgment for the plaintiff upon findings of fact and conclusions of law.   The judgment recited the wrong amount that was due the intervenor.   The plaintiff and the intervenor stipulated to the correct amount, and the court entered a second judgment, changing the amount due to the intervenor.   The appellate court concluded that the error in the first judgment was a judicial one, and that the trial judge had no jurisdiction to alter the earlier judgment.

 Unlike McConville, however, in the present case the March 6 judgment did not involve a conscious exercise of judicial determination.   When the clerk entered judgment on the jury verdict, the clerk was complying with the directory language of section 664 of the Code of Civil Procedure 1 which requires judgment to be “entered” within 24 hours of a jury verdict, unless reserved for further argument or consideration.   We agree with respondent that this “entry” is a clerical and not a judicial act.   It is a ministerial entry of the judgment at a certain book and page in the official records of the court, and not a judicial act by a judge passing on the validity of the judgment as to any particulars.   It does not appear from the record that the trial judge indicated to the clerk his intention to preserve the case for further consideration, i.e., the allowance for the previous settlements.   While we find no case which has directly faced this issue, we conclude that non-action under these circumstances cannot be taken as a judicial act, since there is no conscious exercise of judicial determination involved.

The error being a clerical one, the correction by the trial court was authorized by Code of Civil Procedure section 473, the pertinent part of which reads as follows:  “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 ․”  We hold that the trial court properly corrected a clerical error in the judgment of March 6, 1980.

Appellant next contends that Mansfield should not have been awarded costs because there was a unity of interest between Mansfield and respondent.

The allowance of such costs is provided for by subdivision (b) of section 1032 of the Code of Civil Procedure.   The first sentence of subdivision (b) allows costs to the defendant upon a judgment in his favor or as to whom the action is dismissed.

Our attention is called to the wording of the second sentence of subdivision (b) which is as follows:  “When there are several defendants in any action mentioned in subdivision (a) of this section, not united in interest, and making separate defenses by separate answers, and plaintiff fails to recover judgment against all, the court must award costs to such of the defendants as have judgment in their favor.”  (Emphasis added.)   Thus, the allowance of costs to defendants in the category specified above is made mandatory.

Appellant suggests that the foregoing wording implies that where, as here, multiple defendants are united in interest and join in making the same defenses in the same answer, the defendant who prevails cannot recover any costs at all if the other defendant does not prevail.   No authority is cited for this view and we know of none.

 In our opinion the fact that the second sentence of section 1032, subdivision (b) of the Code of Civil Procedure mandates costs under certain circumstances should not be interpreted to preclude the discretionary award of costs under other circumstances.

Appellant calls our attention to Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 150 Cal.Rptr. 828, which states:  “Section 1032, subdivision (b), establishes two requirements which must be met to determine which defendants are entitled to mandatory recovery of an award of costs in those cases where there are several defendants and plaintiff fails to recover judgment against all.   Those requirements are:  (1) Defendants must not be united in interest;  and (2) defendants must make separate defenses by separate answers.”  (Id., at p. 272, 150 Cal.Rptr. 828;  emphasis in original.)

The court concluded that since the defendants (prevailing and non-prevailing) were represented by the same counsel and filed a single joint answer, the second statutory requirement was not met.   Consequently it held that section 1032, subdivision (b), was not applicable and, thus, recovery of costs by the prevailing defendant was not mandatory.   However, in upholding the trial court's denial of costs to the defendants, the appeals court went on to say:  “In those instances in which several defendants are united in interest and/or join in making the same defenses in the same answer, the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the trial court.”  (Id., at p. 272, 150 Cal.Rptr. 828.)

 We do not see any reason to deviate from the above rules articulated by the Smith court;  and, since the record discloses no abuse of discretion on the part of the trial court, we affirm the order awarding costs to Michael Mansfield.

 Appellant's final contention is that the May 8, 1980, order reflecting reconsideration of respondent's motion to tax costs, and substantially reducing the amount of costs previously awarded to appellant, was void because on that date the trial court no longer had jurisdiction to make such an order.   We agree.

As noted above, judgment on the verdict was entered, as required by law, on March 6;  notice of entry was mailed by the clerk on the same day.   Appellant filed his costs bill on March 12 and respondent moved to tax costs on March 17.   On April 22 the trial court granted respondent's motion as to a single relatively small item of costs and denied it in all other respects.   Appellant's claimed costs, reduced by the amount of the single small item, were thereupon inserted in the March 6 judgment as required by law (Code Civ.Proc., § 1033) and became part of the judgment.  (Cf. Wells Fargo & Co. v. City etc. of S.F. (1944) 25 Cal.2d 37, 44, 152 P.2d 625.)   If (as the trial court apparently later concluded) the determination of costs allowable to appellant had been erroneous, the error was patently judicial rather than clerical;  it follows that once the allowed figure had been duly added to the judgment the trial court was no longer at liberty to amend the figure on its own motion.  (Bowman v. Bowman (1947) 29 Cal.2d 808, 813–814, 178 P.2d 751;  Duff v. Duff (1967) 256 Cal.App.2d 781, 784–785, 64 Cal.Rptr. 604;  cf. generally 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 64–65, pp. 3225–3228.)   Respondent argues that if the trial court had jurisdiction to rule on respondent's motion for a new trial “then it necessarily follows that it had jurisdiction to do a much lesser thing, i.e., amend its ․ previous order to tax costs.”   We need not test respondent's logic because respondent's premise fails:  On May 5, the sixtieth day after the clerk mailed notice of entry of judgment, the court's power to rule on new trial motions expired and the motion should have been deemed denied by operation of law.   (Code Civ.Proc., § 660.)   It follows that the order denying new trial which the trial court purported to make on May 8 was also beyond its jurisdiction.   The purported judgment dated May 15 was, consistent with our analysis above, in essence a nunc pro tunc correction of a clerical error in the March 6 judgment;  such a correction could properly have been made at any time.  (Cf. 4 Witkin, supra, § 66, pp. 3228–3229.)

The order of May 8, 1980, amending the award of costs to appellant is reversed with directions to reinstate the trial court's April 22, 1980, order with respect to respondent's motion to tax costs and to modify the judgment accordingly.   In all other respects the judgment of March 6, 1980, as corrected nunc pro tunc on May 15, 1980, is affirmed.   Each party shall bear his or its own costs on appeal.



1.   Code of Civil Procedure section 664:  “When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict be pending, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings.   If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision.   In no case is a judgment effectual for any purpose until entered.”

ARNE, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

MILLER, Acting P.J., and SMITH, J., concur.

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