Ashton v. Clarke CA6 ( 2021 )

Filed 1/14/21 Ashton v. Clarke CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JASON ASHTON, H045967
(Monterey County
Plaintiff and Respondent, Super. Ct. No. CV132575)
v.
RICHARD A. CLARKE
Defendant and Appellant.
In 1999, several neighbors entered into agreements to resolve disputes that arose
as a result of landslides that affected their properties. As part of the agreements, the
neighbors voluntarily dismissed the pending civil complaints and cross-complaints that
they had filed. In 2003, the trial court issued orders attempting to enforce the settlement.
By 2015, those orders had not yet been complied with, causing appellant Richard A.
Clarke (Clarke) to seek additional enforcement assistance from the trial court. However,
in orders issued in 2016 and 2017, the trial court found it was without jurisdiction to
enforce the parties’ agreements and resulting trial court orders, because the parties
dismissed the case with prejudice, and the dismissal did not include language retaining
the court’s enforcement jurisdiction.
Based on those orders, Clarke filed a motion to set aside the trial court’s 2003
order pursuant to Code of Civil Procedure section 473, subdivision (d), arguing the order
was void on its face because the case had been dismissed in 1999, and the dismissal did
not include language retaining the court’s jurisdiction pursuant to Code of Civil
Procedure section 664.6. The trial court found that the order was not void on its face, and
denied the motion. On appeal, Clarke contends the trial court erred in doing so. We
agree and reverse the trial court’s decision, remanding the matter to the trial court for
further proceedings so it can exercise its discretion under Code of Civil Procedure section
473, subdivision (d).
I. FACTUAL AND PROCEDURAL BACKGROUND
Clarke challenges a trial court order denying his request to set aside a judgment
pursuant to Code of Civil Procedure section 473, subdivision (d),1 and denying his
request for restitution of money paid by Clarke’s assignor, defendant Edwin L.
Ethrington (Ethrington), to respondent Jason Ashton (Ashton).
In 1996, landslides originating on Ethrington’s property damaged downhill
properties owned by Clarke and Jacob Eringer (Eringer); a subsequent landslide damaged
property owned by Charlotte and Roger Cloud (Cloud). As a result, Clarke, Eringer, and
Cloud filed lawsuits against Ethrington in the Superior Court of Santa Cruz County
(Clarke v. Ethrington, et al. (1997, No. CV 133066) (the Clarke action); Eringer v.
Ethrington (1997, No. CV 133094) (the Eringer action); Cloud et al. v. Ethrington (1997,
No. CV 132575) (the Cloud action)). The three cases, and related cross-complaints filed
by Ethrington, were consolidated, with the Cloud action serving as the lead case. The
court then ordered the consolidated action heard in the Superior Court of Monterey
County, as Cloud worked for the Santa Cruz County Superior Court.2 Ashton later
purchased Eringer’s property; Eringer assigned Ashton his rights in the case.
Clarke and Ethrington reached a settlement in February 1999 (the
Clarke/Ethrington agreement). As part of the agreement, Ethrington agreed to hold funds
in a trust account for the purpose of building a debris wall. Clarke and Ethrington agreed
1
All subsequent statutory references are to the Code of Civil Procedure unless
otherwise noted.
2
Aside from inclusion for purposes of relating the procedural history of the action,
Cloud has no involvement in the orders at issue in this appeal.
2
to dismiss their respective complaints and cross-complaints contemporaneously with the
signing of the agreement. Ethrington, Ashton, and Eringer settled their claims against
each other in July 1999 (the Ashton/Eringer/Ethrington agreement). As part of the
agreement, Ethrington agreed to construct a debris wall at the base of his property. As
was the case in the Clarke/Ethrington agreement, Ashton, Eringer, and Ethrington agreed
to dismiss their complaint and cross-complaint contemporaneously with the signing of
the agreement. The Ashton/Eringer/Ethrington agreement included the following
provision: “The Parties agree to reasonably cooperate as necessary to facilitate the
construction of the debris wall…. The obligations of the parties in this regard are set
forth in the settlement agreement between [Clarke and Ethrington] and as placed on the
record before the Honorable Richard Silver; Judge Silver retains jurisdiction to enforce
the terms of this Agreement and the Clark/Ethrington [sic] agreement.”
With the consent of the attorneys for Ethrington and Eringer, the trial court
dismissed the Eringer action on August 18, 1999.3 The judgment of dismissal does not
include a provision reserving the trial court’s jurisdiction to enforce the parties’
settlement agreements and does not reference or incorporate the parties’ agreements in
any way.
By 2001, Ethrington had failed to build the agreed-upon debris wall, prompting
Ashton to file several motions to enforce the Ashton/Eringer/Ethrington settlement
agreement. On June 12, 2003, the trial court ordered Ethrington to pay Ashton $95,000
so that Ashton could have the wall built himself (the June 2003 order); Ethrington made
3
The parties on appeal agree the Eringer action forms the basis for the orders at
issue on appeal; the dismissal therein is the only dismissal provided in either party’s
appendix. There is a discrepancy on the face of that dismissal as to the exact date the
court entered the dismissal. The “filed” stamp at the top of the dismissal form lists a date
of June 18, 1999, while the attorneys signed the dismissal in July and August 1999, and
the deputy clerk of the court who entered the dismissal states she did so on August 18,
1999. The register of actions included in the appellant’s appendix shows the dismissal
was filed June 18, 1999. While we adopt the August 18, 1999 date in this opinion, the
discrepancy in dismissal dates does not affect our analysis.
3
the payment to Ashton in November 2003. In 2006, Ethrington assigned to Clarke his
rights to the debris wall that the court had ordered Ashton in 2003 to build on
Ethrington’s property, as well as his rights to “maintain, or prosecute any and all legal
causes of action to enforce this obligation against [Ashton].”
Clarke and Ashton then engaged in many years of disputes about the construction
of the debris wall. In June 2015, the trial court ordered Ashton to complete construction
of the wall by July 2015.
In March 2016, Clarke filed a “motion to enforce settlement agreement.”4 Ashton
opposed the motion, in part, on the basis that the trial court did not have jurisdiction to
enforce whatever agreement was at issue,5 as it had not entered a judgment on the
agreement under section 664.6, and Clarke had not timely moved to set aside the
dismissal of the action under section 473, subdivision (b). Clarke filed a reply
declaration, in which he alleged the parties agreed the trial court would retain jurisdiction
to enforce the settlement agreement, citing to statements made orally during the “1999
settlement hearings[.]”
Although Clarke did not attach the complete reporter’s transcript to his declaration
(and neither party designated the transcript on appeal), at least one of the attorneys who
represented Clarke in signing his settlement agreement with Ethrington was present at a
hearing on January 12, 1999, in which the trial court stated, “The Court specifically,
along with its reservation of jurisdiction generally will be reserving [jurisdiction] with
respect to any issues as it may arise with respect to the construction of the wall, any of
the access issues and any complaints by any party that the wall is not proceeding
4
Clarke brought the motion in propria persona, and continued to represent himself
throughout the remainder of the trial court proceedings addressed in this opinion. He
similarly appears in propria persona in this appeal.
5
Clarke did not include a complete copy of the motion in his appellant’s appendix,
therefore it is not clear which agreement he sought to enforce; in opposing the motion,
Ashton was not able to identify which agreement was at issue either.
4
reasonably under the circumstances.” At a March 1999 hearing, attended by attorneys for
Eringer and Ethrington, Eringer’s counsel indicated the parties agreed that the
Clarke/Ethrington agreement would remain in effect, and Judge Silver would retain
jurisdiction over that agreement with respect to any future dispute that might arise.
The trial court denied Clarke’s March 2016 motion without conducting an
evidentiary hearing, stating, “Enforcement under §664.6 is unavailable when the
underlying litigation has been dismissed and is no longer pending. (See Housing Group
v. United Nat’l Ins. Co. (2001) [90] Cal.App.4th 1106 [Housing Group][.]) Here, the
case was dismissed in 1999. Thus, the court does not have jurisdiction to enforce the
settlement agreement pursuant to CCP §664.6. It is true that the parties have been before
the court many times since 1999, and the court has taken action to enforce the settlement
many times. However, the jurisdictional issue was never raised in the past. Moving
party did not present any authority or basis to enforce any other orders.”6 (Italics added.)
In November 2016, Clarke filed an order to show cause for contempt, based on the
June 2015 order requiring Ashton to complete the debris wall by July 2015, and Ashton’s
subsequent failure to build the wall. In an order issued in January 2017, the trial court
ruled that because the 1999 dismissal did not include a reservation of jurisdiction, the
court did not have jurisdiction to make post-dismissal orders, and thus could not enforce
by contempt the June 2015 order; the court again cited Housing Group. In doing so, the
court recognized that there were numerous orders issued after the 1999 dismissal and the
jurisdictional issue had not been raised prior to March 2016. The court declined to rule
on the validity of any orders other than the June 2015 order.
Citing the two orders denying his requests for relief based on a lack of jurisdiction,
in February 2018, Clarke filed a motion to set aside the June 2003 order under section
6
We note that in our view, Housing Group, cited by the trial court does not
support the trial court’s ruling that enforcement under section 664.6 was “unavailable”
because the case had been dismissed. However, this issue is not before us on appeal.
5
473, subdivision (d), alleging it was void on its face for lack of jurisdiction, as the case
had been dismissed without any reservation of jurisdiction. Clarke asked the court to
order Ashton to make restitution to him in the amount paid to Ashton under the June
2003 order, that Ashton be made a constructive trustee of the money he had received,
and/or that the court impose an equitable lien on Ashton’s property. In support of the
motion, Clarke asked the trial court to take judicial notice of several orders and other
documents filed in the consolidated actions, including a declaration filed by Ashton in
2005, to which Ashton attached the Clarke/Ethrington settlement agreement, and the
Ashton/Eringer/Ethrington agreement. The trial court granted the request for judicial
notice.
Ashton opposed the motion to set aside the June 2003 order. He argued Clarke
had contemporaneously filed a separate action in the Santa Cruz County Superior Court
seeking a declaration that all post-dismissal orders, including the June 2003 order, were
void.7 Ashton further contended that the sole vehicle available to set aside the June 2003
was a motion for reconsideration under section 1008, or a timely appeal of that order.
Finally, Ashton claimed the June 2003 order was not void on its face. In reply, Clarke
explained that he filed the separate action out of concern that the court would not have
jurisdiction to award restitution in the consolidated action if it ruled in Clarke’s favor on
the set aside request. He opposed the contention that section 1008 applied to his
situation, and instead alleged that section 473, subdivision (d) applied, as the June 2003
order was void on its face based on examination of the judgment roll, notably the 1999
dismissal that did not, on its face, preserve the trial court’s jurisdiction.
The trial court held a hearing on Clarke’s set-aside motion in March 2018. After
hearing argument from both parties, the trial court ruled, “What it comes down to, really,
is the 2003 order is not void on its face. I believe there was a six[-]month time in which
7
The trial court took judicial notice of the first amended complaint filed in Clarke
v. Ashton (Super. Ct. Santa Cruz County, 2017, No. 17CV02881).
6
to challenge it. That was not done. So I’m going to deny the request.” The court issued
a written ruling in April 2018 stating, in relevant part, “The Court finds that the 2003
Order is not void and denies the motion.” Ashton’s attorney served notice of entry of the
order several days after the court issued the written order, following which Clarke timely
filed notice of this appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).) The April 2018
order denying the set-aside motion is appealable under section 904.1, subdivision (a)(2).
(Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 172; Shisler v.
Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 5.)
II. DISCUSSION
Section 473, subdivision (d), allows the trial court to “set aside any void judgment
or order.” While the trial court has discretion to grant or deny a request to set aside a
void order, it has no power under section 473, subdivision (d) to set aside an order that is
not void. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020
(Pittman).) We apply the de novo standard of review to the trial court’s determination of
whether the June 2003 order is void.8 (Ibid.)
“In determining whether an order is void for purposes of section 473, subdivision
(d), courts distinguish between orders that are void on the face of the record and orders
that appear valid on the face of the record but are shown to be invalid through
consideration of extrinsic evidence. ‘This distinction may be important in a particular
case because it impacts the procedural mechanism available to attack the judgment [or
order], when the judgment [or order] may be attacked, and how the party challenging the
judgment [or order] proves that the judgment [or order] is void.’ [Citation.]” (Pittman,
supra, 20 Cal.App.5th at pp. 1020-1021.)
8
The trial court determined the order was not void, and thus did not exercise its
discretion to grant or deny the request to set aside a void order. Such a determination
would be reviewed for abuse of discretion. (Pittman, supra, 20 Cal.App.5th at p. 1020.)
7
There is no time limit in which to challenge an order under section 473,
subdivision (d). (Pittman, supra, 20 Cal.App.5th at p. 1021.) However, section 473,
subdivision (d) applies only to an order that is void on its face—that is, an order where
“the invalidity is apparent from an inspection of the judgment roll or court record without
consideration of extrinsic evidence. [Citations.] . . . If the invalidity can be shown only
through consideration of extrinsic evidence, such as declarations or testimony, the order
is not void on its face. Such an order must be challenged within the six-month time limit
prescribed by section 473, subdivision (b), or by an independent action in equity.
[Citations.]” (Ibid.) Here, the trial court concluded that the June 2003 order was not void
on its face and, by implication, that section 473, subdivision (d) was inapplicable to the
order. It determined that any challenge to the order had to have been brought within the
six-month time limit applicable to section 473, subdivision (b). We conclude that the
trial court erred.
To determine whether an order is void on its face under section 473, subdivision
(d), the court in Pittman stated that the court should consider only “the judgment roll or
court record” without consideration of extrinsic evidence. (Pittman, supra, 20
Cal.App.5th at p. 1021.) By using two terms “judgment roll or court record,” it does not
appear the Pittman court intended to change or expand the types of court records the trial
court can consider in determining whether an order is void on its face; “court record” and
“judgment roll” are one and the same. (See Calvert v. Al Binali (2018) 29 Cal.App.5th
954, 960 [“ ‘ “A judgment or order is said to be void on its face when the invalidity is
apparent upon an inspection of the judgment-roll.” ’ ”]; OC Interior Services, LLC v.
Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327, 1328 (OC Interior
Services) [“To prove that the judgment is void, the party challenging the judgment is
limited to the judgment roll, i.e., no extrinsic evidence is allowed.”; “Extrinsic evidence,
i.e., evidence outside the judgment roll, may be presented on direct attack of a judgment
that is valid on the face of the record to rebut the presumption that the judgment is
8
valid.”].) “In superior courts the following papers, without being attached together, shall
constitute the judgment roll: [¶] … [¶] [T]he pleadings, all orders striking out any
pleading in whole or in part, a copy of the verdict of the jury, the statement of decision of
the court, or finding of the referee, and a copy of any order made on demurrer, or relating
to a change of parties, and a copy of the judgment. . . .” (§ 670, subd. (b).) Motions and
notices of motions are not part of the judgment roll. (Johnson v. Hayes Cal Builders, Inc.
(1963) 60 Cal.2d 572, 576-577.) Affidavits also are not included in the judgment roll.
(See Engasser v. Engasser (1946) 75 Cal.App.2d 80, 82.)
Clarke contends the June 2003 order is void on its face because inspection of the
judgment roll reveals the trial court dismissed the Eringer action with prejudice in 1999,
and the dismissal does not include language reserving the court’s jurisdiction to enforce
the Ashton/Eringer/Ethrington settlement agreement. Voluntary dismissal of an action
generally deprives the trial court of jurisdiction, such that “most orders entered after the
dismissal are void and have no effect.” (Pittman, supra, 20 Cal.App.5th at p. 1022;
Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89.) Because the
trial court did not include language reserving jurisdiction to enforce any settlement
agreement, or incorporate the settlement agreement by reference or attachment into the
1999 dismissal, Clarke asserts the subsequent June 2003 order issued to enforce the
agreement is facially void.
Ashton argues that section 664.6 provides an exception to the general rule that
orders entered after dismissal are void; in Pittman, the appellate court confirmed there are
such exceptions, although it did not address section 664.6. (Pittman, supra, 20
Cal.App.5th at p. 1022.) “[E]ven though a settlement may call for a case to be dismissed,
or the plaintiff may dismiss the suit of its own accord, the court may nevertheless retain
jurisdiction to enforce the terms of the settlement, until such time as all of its terms have
been performed by the parties, if the parties have requested this specific retention of
jurisdiction.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439 (Wackeen), italics
9
omitted.) The appellate court based its holding in Wackeen on its interpretation of
section 664.6, which 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.” To preserve the court’s jurisdiction, the parties to a settlement
must make the request that the court retain jurisdiction while the case is still pending, not
after it has been dismissed; the request must be made by the parties themselves, not their
attorneys, either in a writing signed by the parties or orally before the court. (Wackeen, at
p. 440.)
Based on Wackeen, Ashton correctly contends that under section 664.6 the trial
court can, before dismissing an action, retain jurisdiction to enforce a settlement
agreement extending after dismissal. There is some evidence from declarations of
counsel and the written agreements of the parties that such was their intent here when
they voluntarily dismissed the cases in 1999. However, section 664.6 addresses the
means by which parties can agree that the court retain jurisdiction to enforce a settlement.
Under that section, the agreement may be stated orally on the record by the parties, or
executed in a writing signed by the parties, but must be completed while the case is
pending and prior to dismissal. (§ 664.6; Wackeen, supra, 97 Cal.App.4th at p. 440.)
Ashton concedes there is no reference to any purported agreement in the 1999 dismissal.
However, Ashton contends the trial court would be required to receive extrinsic evidence
to determine whether it properly retained jurisdiction in an agreement under 664.6. Such
evidence would address whether a request for the trial court to retain jurisdiction was
made before the 1999 dismissal was entered, whether an agreement was memorialized in
writing or orally before the court, and whether it was made by the parties themselves, and
not counsel. Because a conclusion regarding the validity of any agreement reached in
10
1999 under section 664.6 would be contingent on the receipt of such extrinsic evidence,
Ashton asserts the June 2003 order is not void on its face
We are not persuaded. It is well established that a trial court may consider only
the judgment roll when determining the facial validity of an order. (Pittman, supra, 20
Cal.App.5th at p. 1021; OC Interior Services, supra, 7 Cal.App.5th at pp. 1327-1328.)
Further, the purposes of section 473, subdivision (d) and section 664.6 are distinct.
Section 664.6 provides parties who wish the court to retain jurisdiction to enforce a
settlement after dismissal of an action with the elements necessary to achieve that goal,
i.e., the parties themselves must execute a written agreement prior to dismissal, or must
state orally on the record their intent to have the court retain jurisdiction while the case is
yet pending. But section 473, subdivision (d) by implication requires that retention of
jurisdiction appear in the judgment of dismissal itself in order to avoid a successful
challenge to postjudgment orders as facially void under this provision. An order thus
may be in compliance with the requirements of section 664.6 and yet be facially void
under section 473, subdivision (d).
It is apparent that the June 2003 order is invalid on its face from the inspection of
the judgment roll or court record, that is, the record on appeal exclusive of motions,
declarations, and affidavits. This court record includes both the 2003 order and the 1999
judgment of dismissal. The judgment of dismissal entered in 1999 does not specify that
the parties asked the trial court to retain jurisdiction to enforce their settlement
agreements prior to the entry of the dismissal. Nor does the dismissal incorporate the
parties’ written settlement agreements.
To determine that the parties had acted in 1999 to preserve the court’s jurisdiction
under section 664.6, the trial court would have had to consider extrinsic evidence. The
written agreements of the parties and the alleged statements of counsel made on the
record in 1999 are all included in the record on appeal as part of motions and/or affidavits
later filed as part of the litigation seeking enforcement of the 1999 order. But these
11
pleadings and declarations are not part of the judgment roll of the 2003 order (including
the 1999 judgment of dismissal), which the court may consider in determining whether
the June 2003 order is void under section 473, subdivision (d).9 Because the judgment
roll does not include evidence that the trial court retained jurisdiction at the time of the
entry of the dismissal with prejudice in 1999, the June 2003 order is void on its face. The
trial court erred in finding otherwise.
However, the fact that the June 2003 order is facially void does not require the
trial court to set aside that order. Rather, under section 473, subdivision (d), the trial
court has discretion to set aside an order that is void. “ ‘[I]nclusion of the word ‘may’ in
the language of section 473, subdivision (d) makes it clear that a trial court retains
discretion to grant or deny a motion to set aside a void judgment [or order.]’ (Cruz v.
Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)” (Pittman, supra, 20
Cal.App.5th at p. 1020.) The trial court here did not exercise its discretion under section
473, subdivision (d), having made the determination that the June 2003 order was not
void on its face, without further explanation. Therefore, we will remand the matter to the
trial court to consider, in its discretion, whether the void June 2003 order should be set
aside. We express no opinion regarding how that discretion should be exercised.
Operating under the assumption that this opinion would require the trial court to
set aside the June 2003 order, Clarke asks this court to determine whether jurisdiction
exists for the trial court to order restitution or other remedies based on money Ethrington
paid to Ashton pursuant to the void order. Ashton contends there is no basis for a
restitution order, even if this court determines the June 2003 order is void on its face. We
do not reach this issue. Given the trial court’s previous determination that the June 2003
9
Any request by counsel seeking retention of the trial court’s jurisdiction under
section 664.6, even if part of the judgment roll, would be insufficient, as the request must
be made by the parties directly, not their attorneys. (Wackeen, supra, 97 Cal.App.4th at
p. 440.)
12
order was not void on its face, it did not explicitly rule on Clarke’s requests for restitution
and other remedies. Should the trial court exercise its discretion to set aside the June
2003 order on remand, it can hear Clarke’s requests and rule accordingly. Absent such a
ruling, it is premature for this court to express an opinion on the issue.
III. DISPOSITION
The April 2018 order denying Clarke’s motion to set aside the June 2003 order
pursuant to section 473, subdivision (d) is reversed. The matter is remanded to the trial
court with directions to exercise its discretion under section 473, subdivision (d), to grant
or deny Clarke’s motion to set aside the void June 2003 order.
13
_______________________________
Greenwood, P.J.
WE CONCUR:
_________________________________
Grover, J.
________________________________
Danner, J.
Ashton v. Clarke
No. H045967