IN RE: the MARRIAGE OF Madeleine R. and Joseph C. GESTAS. (1984)

Madeleine Gestas appeals from orders of the San Mateo Superior Court which denied her motion to correct an alleged clerical error in a final judgment of dissolution and denied her subsequent motions for a new trial and for relief from the order.

Background

Appellant filed a petition for dissolution of marriage from respondent, Joseph C. Gestas, in Contra Costa County on March 3, 1978.   Thereafter the parties entered into a “Marital Termination Agreement” (Agreement) which was filed with the court on May 1, 1978.   Appellant was represented by counsel;  respondent was not.   On that day, an interlocutory judgment dissolving the marriage and incorporating the Agreement was entered.   The final judgment was entered on September 5, 1978.

Over a year and a half later, appellant filed a motion for an “Order to Correct Clerical Error in Judgment and Amend Judgment Nunc Pro Tunc” to add to the Agreement that she was entitled to an undivided one-half interest in an apartment complex in France.¹  Thereafter, the parties stipulated the matter be transferred to San Mateo County, and the application for the order was refiled in the San Mateo Superior Court on May 27, 1980.   Respondent filed responsive pleadings and an evidentiary hearing was held on June 27, 1980.

The trial court concluded that appellant failed to sustain her burden of demonstrating clerical error and accordingly denied the motion to correct the judgment.   Subsequent motions for a new trial and for relief from that order (Code Civ.Proc., § 473) ² were denied.   Appellant filed notices of appeal from both orders.

Review

I.

 Because the right to appeal in this state is purely a creature of statute, this court is obliged to inquire, on its own motion, whether the order sought to be appealed from comes within the enumerated classes of appealable orders.  (Cf. Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825.)   If it is not an appealable order, this court is without jurisdiction to review the matter and must dismiss the appeal.   (Collins v. Corse (1936) 8 Cal.2d 123, 124, 64 P.2d 137;  DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 430, 160 Cal.Rptr. 899;  Lemaire v. All City Employees Assn. (1973) 35 Cal.App.3d 106, 110, 110 Cal.Rptr. 507;  see generally, 6 Witkin Cal.Procedure (2d ed. 1971) Appeal, §§ 30–31, pp. 4045–4046.)

 Here appellant seeks review of a post judgment order denying her motion to correct an alleged clerical error in a judgment rendered almost two years earlier.   Although section 904.1, subdivision (b) states the broad rule that an order is appealable if made after a judgment which itself is appealable,³ that rule is subject to at least one well settled qualification:  the order “must affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution [citations].”  (Lake v. Harris (1926) 198 Cal. 85, 89, 243 P. 417;  accord Griess v. State Investment etc. Co. (1892) 93 Cal. 411, 413, 28 P. 1041;  Williams v. Thomas (1980) 108 Cal.App.3d 81, 84, 166 Cal.Rptr. 141;  In re Marriage of Schultz (1980) 105 Cal.App.3d 846, 851–852, 164 Cal.Rptr. 653;  Hixson v. Hixson (1956) 146 Cal.App.2d 204, 205–206, 303 P.2d 607;  see generally 6 Witkin, op. cit. supra, § 81, pp. 4091–4092.)

The point is clearly illustrated in Hixson v. Hixson, supra, 146 Cal.App.2d 204, 303 P.2d 607.   There, a judgment of dissolution made provision for apportionment of certain income tax liabilities.   After the time for appealing from the final judgment had expired, the parties orally agreed that each would negotiate and settle separately with the government, and that the apportionment provision should be deleted from the judgment by stipulation.   Each effected a settlement with the government, but husband refused to follow through with the agreement to amend the judgment.   Wife moved to amend the judgment.

Wife's purported appeal from the order denying her motion to amend the judgment was dismissed:  “The order at bar leaves the judgment intact;  it neither adds to it nor subtracts from it.   Had the motion been granted the order doubtless would be appealable for it would make a material change in the obligations of the judgment.   But the order actually made has no such effect and is not appealable.”  (Id., at p. 206, 303 P.2d 607.)

 The same is true of the instant case.   The order appealed from neither adds nor detracts from the judgment;  the judgment remains the same as it was the day it was rendered.   It is further clear that the order neither enforces nor stays execution of the judgment.

We recognize that some appellate court cases have simply assumed the appealability of such an order as a final order after judgment.  (See, e.g., Bowden v. Green (1982) 128 Cal.App.3d 65, 68, fn. 1, 180 Cal.Rptr. 90;  Oliver v. Superior Court (1924) 67 Cal.App. 358, 362, 227 P. 647) but none has come to grips with the obvious impediment to that conclusion:  the order does not affect the judgment.

 Appellant urges that an exception to the rule should be made here because in her view the stipulated judgment of dissolution effectively left her without a right to appeal.   Although it is true as a general rule that a party does not have the right to challenge a stipulated or consented to judgment on appeal (cf. In re Marriage of Denney (1981) 115 Cal.App.3d 543, 552–553, 171 Cal.Rptr. 440;  6 Witkin, op. cit. supra, § 122, subd. (1), pp. 4119–4120) that rule has no application where the judgment does not conform to stipulation.   (See 6 Witkin, op. cit. supra, § 122, subd. (2), p. 4120, and cases cited therein.)   Thus, appellant had the right to appeal from the judgment on the basis that it did not conform to the Agreement.

Instead of directly appealing from the final judgment, however, she elected to wait some two years before challenging its provisions.   If review by appeal were allowed at this stage, “ ‘it would be virtually allowing two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appeal, contrary to the intent of the statute.   A further reason is that the order on the motion is merely a negative action of the court declining to disturb its first decision.   The first decision being reviewable, the refusal any number of times to alter it does not make it less so.’ ”   (Spellens v. Spellens (1957) 49 Cal.2d 210, 228–229, 317 P.2d 613.)

The concurring opinion characterizes as “patently unfair” our holding that an appeal does not lie from an order denying a motion to correct a clerical error in a judgment which was rendered some two years earlier.   The short answer is:  if a party is aggrieved by an erroneous denial of his motion, his plain, speedy, adequate, fair and well established remedy is to seek review by petitioning for extraordinary relief.

Under the approach suggested in the concurring opinion, finality of judgments would become a sometime thing, creating unfairness not only to the litigants but to the entire system of justice.   One dissatisfied with a judgment could create appellate jurisdiction after the time for appeal has expired merely by moving to correct an error self-designated as “clerical.”   Such an ability, in our view, is unwarranted and unsanctioned by the rules of appellate procedure in this state.

Because we cannot condone this attempt to greatly expand the period for filing an appeal through the apparent bootstrapping method employed here, we dismiss the appeal on our own motion.

Appellant also purports to appeal from the later order of the trial court denying both her motion for a new trial and her motion for relief from the order denying her motion to correct the judgment.   This appeal must also be dismissed.

 An appeal does not lie from an order denying a motion for new trial;  the right to appeal, if any, lies from the appealable final judgment or order.  (Cf. Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156, 52 Cal.2d 154;  Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 748–749, 137 Cal.Rptr. 417;  see generally 6 Witkin, op. cit. supra, § 71, pp. 4084–4085.)   A fortiori, if the underlying order is nonappealable, appellate jurisdiction is not created by thereafter moving for a new trial and appealing from the denial thereof.   For the same reasons an appeal does not lie from an order denying a motion to vacate where the prior order itself is nonappealable.  (Cf. Title Ins. & Trust Co. v. Calif. etc. Co. (1911) 159 Cal. 484, 487, 114 P. 838;  Remington v. Davis (1951) 108 Cal.App.2d 251, 252–253, 238 P.2d 662;  Christensen v. Lucerne Holding Co. (1933) 134 Cal.App. 215, 216, 25 P.2d 261;  6 Witkin, op. cit. supra, § 91(b), p. 4099.)   The same is true of a statutory motion for relief pursuant to section 473.

In light of the complexity of this area of appellate jurisdiction and in the interest of fairness we treat the instant appeals as petitions for an extraordinary relief in order to reach the merits of appellant's claim.  (Cf. Andrus v. Municipal Court (1983) 143 Cal.App.3d 1041, 1049, 192 Cal.Rptr. 341.)

II.

 Regardless of the passage of time or finality of a decision, a court may on its own motion or upon motion of a party correct a clerical error in its judgment whether the mistake was made by the clerk, counsel or the court itself.  (§ 473;  In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 746, 189 Cal.Rptr. 622;  In re Marriage of Mercado (1977) 75 Cal.App.3d 701, 704, 141 Cal.Rptr. 423.)  “Where 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.”   (Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 47, 127 Cal.Rptr. 896.)   Judicial error is distinguishable from clerical error in that only the former is “the deliberate result of judicial reasoning and determination.”   (Gill v. Epstein (1965) 62 Cal.2d 611, 615, 44 Cal.Rptr. 45, 401 P.2d 397;  Estate of Doane (1964) 62 Cal.2d 68, 71, 41 Cal.Rptr. 165, 396 P.2d 581;  Denton v. Denton (1971) 18 Cal.App.3d 708, 715, 96 Cal.Rptr. 136;  Gravert v. DeLuse (1970) 6 Cal.App.3d 576, 581, 86 Cal.Rptr. 93.)

The gist of appellant's motion to correct below was not that there was a discrepancy between the Agreement and the final judgment.   Instead, she argued that certain language disposing of a one half interest in an apartment complex was omitted from the Agreement, and should be added thereto.   The trial court concluded that appellant had failed to sustain her burden of demonstrating clerical error and denied the motion.   Relying on In re Marriage of Mercado, supra, 75 Cal.App.3d 701, 141 Cal.Rptr. 423, appellant urges this as error.

In Mercado, both husband and wife agreed that the original property settlement agreement and the subsequent judgment entered thereon did not reflect their true agreement.  (Id., at p. 704, 141 Cal.Rptr. 423.)   The trial court therefore corrected the judgment by deleting the word “or” and substituting therefor the word “and” in the relevant provision.   On appeal the wife urged that the error was not a clerical one subject to later modification.   The Court of Appeal disagreed with this “unrealistically narrow approach to the problem”:  “it can reasonably be concluded that what the first trial judge intended was to incorporate into the judgment the actual agreement of the parties, and the judge assumed that the written property settlement correctly reflected the parties' actual agreement.   The doctrine of clerical error permits correcting of judgment and orders ‘inadvertently made which are not actually the result of the exercise of judgment.’  [Citation.]  If the first trial judge assumed the written agreement reflected the agreement of the parties, the judge did not make an ‘exercise of judgment’ that the provision should read ‘and’ rather than ‘or.’ ”  (Id., at pp. 704, 705, 141 Cal.Rptr. 423.)

 Here, by contrast, the parties did not agree that the property settlement agreement did not reflect their true agreement:  respondent denied that it was their agreement that appellant was to receive one-half interest in the apartments.   The trial court also noted that the language used in the Agreement failed to support appellant's contention of equal division of the apartment:  “Under [appellant's] contention, the parties intended that [appellant] convey her one-half interest to respondent, and that respondent convey his one-half interest to [appellant].  Had the parties intended to divide the apartments, they could have pursued a much less convoluted method of distribution by reciting that the apartments constituted community property, and that each would execute a joint conveyance to themselves creating equal undivided interests.   The language actually used appears, rather, to indicate an intent that respondent receive the entirety of [the] parties' interests in the apartments.”

This evidence amply supports the trial court's finding that appellant failed to demonstrate that the Agreement was not a true reflection of the parties' intent.   That finding disposed of any contention of a correctable “clerical” error in the judgment.

III.

The trial court's intended decision, filed and mailed to the parties on July 31, 1980, directed respondent to prepare a formal order.   Respondent did so but erroneously designated the order, which was signed by the court on August 22 and filed on August 26, 1980, as an “Order Denying Motion To Amend Complaint.” ⁴  Respondent served appellant with a copy of the order, unsigned, on August 6, and thereafter personally served appellant's counsel with a copy of the signed order on October 1, and filed a proof of service to that effect with the court on October 7.

On October 17, appellant noticed a motion for new trial and on October 27, she noticed a motion for relief from the order on the ground that it was entered through surprise.   The trial court denied both motions by order and noted:  “The order of August 26, 1980 does not appear to be an appealable order, and was therefore never entered by the clerk;  however, even if it is an appealable order, the Notice of Intention to Move for New Trial was not filed within fifteen days from service upon petitioner of the Order ․ thereby depriving the court of jurisdiction to hear a motion for new trial․  No sufficient showing has been made to warrant a hearing upon the motion to vacate pursuant to Code of Civil Procedure section 473.”

 Appellant first urges that her motion for new trial was in fact timely.   We disagree;  she had 15 days to file from the date of service and failed to do so.

A notice of motion for new trial must be filed:  “Within fifteen days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is the earliest;  ․”  (§ 659, subd. 2.)

Here the clerk did not mail appellant notice of entry of judgment, therefore, as appellant correctly points out, the first triggering event of section 659 is inapplicable here.   However, contrary to appellant's view, the clerk was not required to mail notice of entry of judgment because that obligation lies only with respect to “any judgment, decree, or signed order from which an appeal lies.”  (§ 664.5.) ⁵  As we have demonstrated, the order here was not an appealable one, and therefore there was no obligation to mail notice of entry of judgment.  (Cf. In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 721–722, 146 Cal.Rptr. 675 [clerk did not send notice of entry of judgment following order quashing a writ of execution because there was no “judgment” to enter].)

That determination affects appellant's next argument that second triggering event of section 659, subdivision 2—service by any party “of written notice of entry of judgment”—is inapplicable because respondent served only notice of the signed and filed order.   In her view, he was required to serve notice of entry of judgment.   Again, because there was no judgment to enter, and no judgment was in fact entered, respondent could not serve that type of notice.   Instead, he served the only type possible:  notice that the order was signed and filed.   That event, in our view, was sufficient to trigger the 15-day period for filing notice of intention to move for new trial.

Here appellant did not move within 15 days of October 1;  she moved on October 17.   Accordingly, because the notice of intention to move for a new trial was not timely, the trial court properly concluded that it was without jurisdiction to consider it.  (See In re Marriage of Beilock, supra, 81 Cal.App.3d 713, 721, 146 Cal.Rptr. 675;  Douglas v. Janis (1974) 43 Cal.App.3d 931, 936, 118 Cal.Rptr. 280.)

Appellant's final contention is that the trial court abused its discretion in denying her motion for relief premised upon surprise.   There was no error.

In support of her contention that a clerical error had occurred in the original judgment, appellant argued that all other property had been divided equally, and that an award of the apartments to respondent alone would constitute an unequal division.   At the hearing on the motion to correct, respondent's counsel disputed some valuations proffered by appellant.   The trial court interjected that it was “not likely to make any decision based on values anyway” because in its view the sole question was one of the parties' intent.

In its memorandum of decision, however, the court did comment on appellant's equal division argument as follows:  “there is no requirement in California law that community property be divided equally where the parties proceed by way of written agreement ․  Of course, the parties could have recited in their agreement that the division of property was deemed an equal one, but they did not do so, notwithstanding that the agreement was prepared by petitioner's attorney.   If the ‘other property’ had been divided equally, or substantially equally, the court would consider viewing that fact as circumstantial evidence that a clerical error occurred;  however, the court is of the opinion that respondent [sic, petitioner] has not proved by a preponderance of evidence that the other property was so divided.   It was petitioner's contention that the equity in the family residence, one of the items of ‘other property’ awarded her in the dissolution, was valued at approximately $30,000.   Respondent contends the value of the equity was much greater.   There was no expert testimony presented as to its value.”  (Emphasis in original.)

The gist of appellant's resulting motion for relief was one of surprise.   She argued that she had been misled by the court into believing that it would not premise its decision on property values, and that its decision was based on arguments advanced by neither side.   Finally, she sought to introduce additional evidence as to the value of the family residence and the testimony of her attorney who had drafted the agreement concerning his choice of language.   The trial court denied the motion for lack of a sufficient showing.   Appellant contends this was error.

 Section 473 authorizes a trial court to relieve a party from a judgment or order obtained against him or her through mistake, inadvertence, surprise or excusable neglect.   Before any relief may be granted, however, it must be demonstrated that if the order or judgment is set aside and the proceedings are reopened a different result will probably follow.  (Zancaner v. Louisville & N.R. Co. (1963) 220 Cal.App.2d 836, 839, 34 Cal.Rptr. 143.)   Finally, the disposition of the motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal absent a showing of manifest abuse.  (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597–598, 153 Cal.Rptr. 423, 591 P.2d 911;  accord, Alvarado v. City of Port Hueneme (1982) 133 Cal.App.3d 695, 705–706, 184 Cal.Rptr. 154.)

 The clear import of the trial court's denial is that even if appellant could show what she hoped to—that is, that value of the other property, and her interpretation of the terms used in the Agreement—it would not have made a difference in the outcome.   In other words, such a showing would not alter the conclusion that the error before the court was simply not a clerical one.   That determination amply supported the denial of the motion for relief.

The appeals are dismissed and, treating each such purported appeal as a petition for extraordinary relief, each is denied.

I concur in the judgment.   In my view, Bowden v. Green (1982) 128 Cal.App.3d 65, 68, 180 Cal.Rptr. 90, footnote 1, permits an appeal from the denial of a motion to correct a clerical error.  (See also Oliver v. Superior Court (1924) 67 Cal.App. 358, 362, 227 P. 647.)   These two cases would permit review under Code of Civil Procedure section 904.1, subdivision (b).   If the majority opinion is correct, a party erroneously denied the right to obtain correction of a clerical error would have no absolute right of review of the trial court's action.   This is patently unfair.

However, on the merits of appellant's claim, I agree with the majority's holding.   The trial court properly denied appellant's motion to correct a so-called clerical error.

FOOTNOTES

1.   The Agreement only specified that an undivided one-half interest was to be awarded to respondent.

2.   Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

3.   Section 904.1, subdivision (b) provides:  “An appeal may be taken from a superior court in the following cases:  ․  (b) From an order made after a judgment made appealable by subdivision (a) ․”

4.   Although the title of the order was erroneous, a glance at the first line of the order reveals its nature:  “The motion of Petitioner MADELEINE R. GESTAS for an order to correct a clerical error in the judgment rendered in this action and amend the judgment nunc pro tunc, in regard to an undivided one half (1/212) interest in a certain apartment in France, ․”  Appellant does not contend that she was misled by the erroneous designation.

5.   Although the rules of court suggest that the clerk should have mailed notice of the filing of the order, failure to do so does not extend the time for moving for new trial.  (See Cal.Rules of Court, former rule 204;  see now rule 309.)

POCHÉ, Associate Justice.

CALDECOTT, P.J., concurs.