Filed 8/16/19; Certified for Publication 9/10/19 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

EDWARD A. MACHADO, as Trustee, etc.,

et al.,

Plaintiffs and Respondents,

v.

BRYAN P. MYERS et al.,

Defendants and Appellants.

 D073824

 (Super. Ct. No. 37-2014-00027033-

CU-OR-NC )

APPEAL from a judgment of the Superior Court of San Diego County, Timothy 

M. Casserly, Judge. Reversed with directions.

Seltzer Caplan McMahon Vitek, Arezoo Jamshidi, and Jessica S. Doidge for 

Defendants and Appellants.

Galuppo & Blake, Andrew E. Hall, and Daniel T. Watts for Plaintiffs and 

Respondents.

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 
2

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 

record.2

FACTS

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 five1 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.
3

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 

property.

"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.

[¶] . . . [¶]
4

"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 

plaintiffs' property.

"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 

existing fence.

"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.
5

"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 

setback requirements.

"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 

Agreement.

"7(a)(ii)(5)[:] standard terms and conditions will 

be included.

"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 

settlement agreement.

"[9](b)[:] The parties will mutually release one another from all 

further claims regarding any of the currently existing conditions on 

the property.

[¶] . . . [¶]

"9(f)[:] [E]ach attorney [sic] shall bear its own attorney's fees 

and costs.

"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 
6

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 

the agreement."

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. 
7

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. 
8

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'

property. 

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, 

2018. 
9

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, 

2018, occurred. 
10

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).)
11

DISCUSSION

I.

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 

eventual approval. 
12

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. 

II.

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) 
13

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 

(Hernandez).) 

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 
14

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 
15

the record in February 2016 were sufficiently firm and definite to be enforceable by the 

court.9 

III.

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 

agreement."].) 

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' "].)
16

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 
17

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] 

[r]elocation [a]rea."

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. 
18

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 

judgment provided:

"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.)
19

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 
20

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 

terms.

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. 
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 

settlement agreement. 

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 
22

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. 
23

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 

performance. 

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. 

IV.

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 
24

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 

disagree. 

"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. 
25

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 
26

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).) 

We agree. 

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 
27

conclusions of law or renders an erroneous judgment on the basis of uncontroverted 

evidence' "].) 

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'
28

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. 
29

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.

V.

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'
30

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. 

DISPOSITION

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. 

GUERRERO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.
Filed 9/10/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

EDWARD A. MACHADO, as TRUSTEE, 

etc. et al.,

Plaintiffs and Respondents,

v.

BRYAN P. MYERS et al.,

Defendants and Appellants.

 D073824

 (Super. Ct. No. 37-2014-00027033-

CU-OR-NC)

ORDER CERTIFYING OPINION 

FOR PUBLICATION

THE COURT:

The opinion in this case filed August 16, 2019, was not certified for publication. It 

appearing the opinion meets the standards for publication specified in California Rules of 

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is 

GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c); and
2

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page 1 of said opinion be deleted and the opinion herein be published in the Official 

Reports.

O'ROURKE, Acting P. J.

Copies to: All parties