Filed 6/27/13 Landells v. Nance CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

JAMES L. LANDELLS, as Successor Trustee, etc., Plaintiff, Cross-defendant and Respondent,

E054448

v. (Super.Ct.No. INC067512)

CINDY A. NANCE,

Defendant, Cross-complainant and Appellant; OPINION

SCOTT J. STEVENS,

Defendant, Cross-defendant and Respondent.

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.

Affirmed.

Cindy A. Nance, in pro. per., for Defendant, Cross-complainant and Appellant.

Lewis Brisbois Bisgaard & Smith, Lawrence S. Rookhuyzen and Manuel U.

Sarmiento for Plaintiff, Cross-defendant and Respondent.

No appearance for Defendant, Cross-defendant and Respondent Scott J. Stevens.

1 Cindy A. Nance, defendant, cross-complainant, and appellant (Nance), appeals

from a stipulated judgment filed in a lawsuit brought against her by Elaine N. Landells,

plaintiff, cross-defendant, and respondent and prosecuted by James L. Landells, as her

successor in interest after Elaine Landells’ death. (Hereafter collectively referred to as

Landells). Nance raises numerous claims of error, all of which are directed at

challenging the form and terms of the stipulated judgment.

Nance did not raise her claims in the trial court before the stipulated judgment was

entered, nor did she thereafter seek correction of the judgment in the trial court. Her

claims cannot be resolved by this court. Therefore, we will affirm the judgment.

Landells’ request for sanctions on appeal, which is included in the respondent’s brief, is

denied because the request does not comply with rule 8.276 of the California Rules of

Court.

FACTUAL AND PROCEDURAL BACKGROUND

This action arises from a dispute between adjoining landowners over property

boundaries and easement rights. Landells initiated the action by filing a complaint on

May 30, 2007, against Nance, and Scott J. Stevens, seeking among other things a

declaration of her rights to ownership of an easement over their respective properties.1

1The complaint names Stevens both as an individual and in his representative capacity as the trustee of an inter vivos trust. Landells and Nance also later appear in representative capacities as trustees. For ease of discussion, because the parties’ capacity is not relevant in this appeal, we will only refer to them individually and not in their representative capacity.

2 Nance, in turn, filed a cross-complaint against Landells and Stevens on April 28, 2008,

seeking, among other things, damages for trespass2 and to quiet title.

The parties eventually reached a settlement agreement, the terms of which they

recited on the record during a hearing on December 7, 2009. As a result of that

settlement, the trial court vacated the trial date set for January 19, 2010. The parties

appeared in court again on May 4, 2010, after having had various disagreements about

how to implement the settlement, in particular, over the nature and content of the

documents necessary to revise the existing easements. The trial court scheduled a trial

setting conference in July. When the parties appeared in court for that hearing, they

again represented they had a settlement but that they still were unable to agree on the

manner in which to implement it. For example, Nance wanted to rescind the existing

easements over her property and grant new ones, whereas Landells wanted to amend the

existing easements by quitclaiming a portion of them away. The trial court suggested the

parties incorporate the settlement agreement into a stipulated judgment that would

include a legal description of the easements. The parties agreed and, at their request, the

trial court scheduled another hearing for several months in the future in order to give the

parties time to work out the details.

At their next court appearance in November 2010, the parties apparently were still

at odds over how to accomplish the objectives of the settlement. The trial court, on its

2 Nance later filed an amended cross-complaint but we will not discuss that pleading or any of the other pleadings filed in the trial court because they are not relevant to the issues on appeal.

3 own motion, agreed to consider Landells’ previously filed motion to enforce the

settlement. To that end, the court set a briefing schedule for the parties and a hearing on

that motion. In the interim, Nance filed bankruptcy. As a result, the bankruptcy stay was

in effect when the parties appeared on January 14, 2011, at the hearing to enforce the

settlement agreement. The trial court continued the hearing for 45 days so that Landells

could seek relief from the bankruptcy automatic stay.

At the next hearing on March 25, 2011, Landells had obtained relief from the

automatic stay and the parties again were proposing to enter into a stipulated judgment.

The trial court offered to “fashion a judgment” for the parties based on the terms of the

settlement agreement entered on the record at the hearing in December 2009. The parties

agreed.

On June 24, 2011, the trial court conducted a hearing at which everyone reviewed

the proposed stipulated judgment. The trial court considered each of the suggested

changes and/or corrections proposed by the parties. At the conclusion of the hearing, the

parties all agreed the stipulated judgment, and exhibits, accurately reflected the parties’

settlement agreement.

On July 1, 2011, the trial court signed the stipulated judgment. The judgment was

entered that day. Notice of entry of judgment was filed July 11, 2011. Nance, who

represents herself in this appeal, purports to appeal from the stipulated judgment.

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DISCUSSION

As reflected in the introduction in her opening brief, Nance’s complaints in this

appeal are directed at the form and content of the stipulated judgment. According to

Nance, her “appeal arises from errors in form and function in the Judgment on Stipulated

Settlement prepared by the Superior Court.” Although the headings to her various

discussion sections suggest Nance seeks to enforce the settlement agreement, her actual

objective is to correct purported errors in the stipulated judgment. Apparently, Nance is

of the view that correcting the stipulated judgment is a form of enforcing the settlement

agreement. Nance is incorrect.

Nance’s opportunity to make corrections to and/or changes in the settlement

agreement and resulting stipulated judgment occurred in the trial court. She should have

either refused to enter into the stipulated judgment and settlement or, having entered into

that agreement, she should have filed a motion in the trial court to correct any purported

errors in the judgment on stipulated settlement. (See Code of Civ. Proc. § 473, subd. (d)

[“The court may, upon motion of the injured party, or its own motion, correct clerical

mistakes in its judgment or orders as entered, so as to conform to the judgment or order

directed, and may, on motion of either party after notice to the other party, set aside any

void judgment or order”].) Nance did neither.

The judgment on stipulated settlement expressly states that the trial court retains

jurisdiction “for purposes of construction, modification and enforcement of this

Judgment . . . .” Nance must seek recourse in the trial court for each of the claims she

raises in this appeal. Moreover, even in the absence of the trial court expressly retaining

5 jurisdiction, we do not have jurisdiction to modify, correct, or enforce the stipulated

settlement. Those are all trial court functions. Our function as an appellate court is to

review trial court proceedings to determine whether errors of law occurred. (See

9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 367, p. 425.) Nance has not

demonstrated that she raised each issue in the trial court, and that the trial court either

failed to address the issue or resolved it in a manner she contends is incorrect. Absent

such a showing, Nance has not established any issues we may review on appeal.

Nance apparently is frustrated with the amount of time and effort she has

expended on this matter in the trial court. She mistakenly believes she can achieve her

desired result in this court, but she cannot. Each of the matters about which she

complains must be raised and resolved in the trial court. We caution Nance that just

because she thinks something is a problem or error does not necessarily mean she is

correct. For example, she complains that the stipulated judgment does not “burden a

living individual” because the caption on the notice of entry of judgment did not reflect

that Elaine Landells died while this action was pending, and that her son, James, had been

substituted as the successor trustee for the Elaine N. Landells inter vivos trust. Contrary

to Nance’s view, the title of the action does not necessarily change with the addition or

substitution of parties. (See Code Civ. Proc., § 422.40 [“In the complaint, the title of the

action shall include the names of all the parties; but, except as otherwise provided by

statute or rule of the Judicial Council, in other pleadings it is sufficient to state the name

of the first party on each side with an appropriate indication of other parties”].)

6 In short, and simply stated, we cannot modify the agreement in any manner or

order the trial court to do so. Nor can we direct the parties to perform the duties imposed

on them by the judgment on stipulated settlement. Nance must bring her complaints in

the trial court. If the trial court commits legal error in the course of addressing and

resolving Nance’s claims, she then might have an issue to pursue on appeal. However, if

the trial court considers Nance’s claims and ultimately disagrees with her view of the

facts, we are bound by the trial court’s resolution of the factual issue, unless that

determination is not supported by the evidence. (See, e.g., People v. Kraft (2000) 23

Cal.4th 978, 1053.) But all things being equal, the trial court, as the finder of fact,

resolves factual disputes and we cannot substitute our view of the facts for that of the trial

court.

DISPOSITION

The judgment is affirmed.

Costs on appeal are awarded to Landells.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P.J. We concur:

KING

J.

CODRINGTON

J.

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