POOCHIGIAN, J.
This case ostensibly settled almost six years ago.
Plaintiffs made multiple postjudgment motions seeking orders to "enforce" the settlement. The motions were purportedly made pursuant to section 664.6 After one of those motions, the court entered an order requiring plaintiffs to execute a contract, among other things. Plaintiffs challenge the order as outside the court's authority under section 664.6.
We agree that section 664.6 does not support the July 29, 2011, order because it "`create[d] . . . material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' [Citation.]" (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176, original italics, (Hernandez).) We accordingly reverse that order.
In their briefing, plaintiffs challenge another, similar postjudgment order. We conclude that order is not properly before us.
In the 1980s, Dale Poe purchased more than 100,000 acres of land referred to as the San Emidio Ranch (the "Ranch"
A dispute arose regarding water delivery. Plaintiffs Wheeler Ridge Farms LLC and Dale Poe Development Corporation (plaintiffs) filed a complaint in superior court against Wildlands. The complaint alleged Wildlands improperly "shut off all water" from the water system to Wheeler Ridge's portions of various pastures. Plaintiffs sought injunctive, equitable, declaratory and compensatory relief. Wildlands answered with a general denial and several affirmative defenses.
Plaintiffs and Wildlands ostensibly settled at a mandatory settlement conference on November 30, 2007. The settlement was placed on the record. The settlement included two primary components: a land exchange and a purported resolution of the water dispute. The latter component is most relevant to this appeal.
Counsel for Wildlands recited the settlement as to the water issue as follows:
The court asked whether plaintiffs' counsel had anything to add to the recitation. He responded:
The court then stated: "And I suspect it would be a right that would be appurtenant to the Wheeler Ridge property and would be a burden on the Wildlands property. It doesn't mean that should there be one of those catastrophic events that Wildlands would have any obligation to truck water in." Plaintiffs' counsel responded, "Correct. . . ."
Plaintiffs and Wildlands agreed to the recited settlement on the record. The parties also agreed the court could retain jurisdiction under Code of Civil Procedure section 664.6.
On August 15, 2008, plaintiffs filed a motion to enforce the settlement. (§ 664.6.) On November 14, 2008, the court granted the motion. The court signed the proposed judgment submitted by Wildlands's counsel. The substantive portion of the judgment states: "IT IS ORDERED that the motion be, and it hereby is, granted and judgment is hereby entered consistent with the stipulated settlement entered on the record before Department 6 of this Court on November 30, 2007, reflected in the transcript attached hereto as Exhibit A and the map attached hereto as Exhibit B, all of which are incorporated herein by this reference."
On May 19, 2009, plaintiffs filed a "motion to enforce judgment." (§ 664.6) The motion alleged the parties had been unable to agree on the contractual language contemplated by the settlement. It further contended that Wheeler Ridge was not receiving the "the agreed upon water." The motion sought an order requiring Wildlands to execute a Water Service Agreement drafted by Wheeler Ridge.
Wildlands opposed the motion. Wildlands claimed the court lacked authority under section 664.6 to order Wildlands to execute the Water Service Agreement drafted by Wheeler Ridge because it contained terms not in the settlement.
The court held multiple hearings on the motion and received testimony. Eventually the court issued an order dated April 10, 2010. The court found that the judgment previously entered was "clear on its face" and that "no extrinsic evidence is necessary to its interpretation." The court ordered:
On June 10, 2011, plaintiffs again requested the court order Wildlands to sign the Water Services Agreement.
Wildlands again opposed plaintiffs' request. They argued that the Water Services Agreement proposed by plaintiffs went beyond the terms of the settlement.
The court issued an order dated July 29, 2011, from which plaintiffs presently appeal. The order is entitled "Order Modifying Order Dated April 10, 2010," and contains much of the same language from the April 10, 2010, order it purportedly modifies.
Again the court found that the judgment previously entered was "clear on its face" and that "no extrinsic evidence is necessary to its interpretation." The order went on to "modify" the April 10, 2010, order in significant ways.
The July 29, 2011, order required the parties to execute an attached easement and a Water Service Agreement. It also clarified Wildlands's obligation as only requiring delivery of the water to a literal point on the property (not a tank).
Plaintiffs now appeal from the July 29, 2011, order.
Plaintiffs' sole contention on appeal is that the trial court acted without jurisdiction when it issued the April 10, 2010, and July 29, 2011, orders. Plaintiffs argue those orders are void and should be vacated. We agree the July 29, 2011, order is void because it imposes different terms than the settlement agreement. We do not address the validity of the April 10, 2010, order because it is not properly before us on this appeal.
`"`The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment. The court does retain power to correct clerical errors in a judgment which has been entered. However, it may not amend such a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error. [Citations.]' `[Citation.]" (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43.) Plaintiffs contend this general rule applies and the postjudgment orders are therefore void. Defendants contend that "the trial court held continuing jurisdiction pursuant to the express terms of Code of Civil Procedure Section 664.6 to act as it did in this matter." As we will explain, section 664.6 can not support the July 29, 2011, order. None of the defendants' additional contentions support the July 29, 2011, order, which we now reverse.
We review section 664.6 orders de novo for errors of law. (See Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 35. See also Weinstein v. Rocha (2012) 208 Cal.App.4th 92, 96.) Here, the trial court interpreted the settlement agreement "based solely upon its terms."
"Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement. [Citation.]" (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) Section 664.6 allows the court to retain jurisdiction for this limited, specific purpose (i.e., "to enforce the settlement" (§ 664.6)). "[T]his reservation simply grants the parties a streamlined procedure to enforce an agreement they made between themselves." (Hernandez, supra, 126 Cal.App.4th at p. 1175, italics in original.)
"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.) "`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.' [Citation]" (Ibid., original italics.) "The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement. . . ." (Ibid.) "Neither this court nor the superior court can rewrite the oral settlement agreement or add what was omitted. [Citations.]" (Canaan, supra, 211 Cal.App.4th at p. 1126.)
We must determine whether the July 29, 2011, order fell within the scope of the trial court's authority under section 664.6.
We conclude the court's order imposed a number of terms that were "different . . . than those contained in their settlement agreement." (Hernandez, supra, 126 Cal.App.4th at p. 1176.) The order required plaintiffs to execute an Easement and Water Service Agreement attached to the order (the EWSA). In paragraph 2.1, the EWSA provided that plaintiffs would have "first priority and highest claim" to available water until the water deliver obligation is satisfied each year. However, in subdivision (c) of that paragraph, the EWSA provides that plaintiffs' claim to the water was "subject . . . to" "[t]he use and consumption of Water . . . by [Wildlands] or its invitees, licensees or tenants consistent with the historical use of Water by such parties as of the date of the Original Judgment." This substantially departs from the settlement agreement, which did not subordinate Wildlands's water delivery obligation to anyone's "historical use" of the water. Rather, the agreement provided that Wildlands would "provide 3 million gallons of water per year to the boundary line of the Wheeler Ridge Farms['] land." The settlement describes Wildlands water delivery obligation as "perpetual" and provides for a single exception regarding catastrophic events. Nothing even remotely similar to paragraph 2.1(c) of the EWSA is found in the language of the oral settlement agreement. (See § II REF _Ref369871410 \r\h A.)
The EWSA contains other provisions that are foreign to the settlement agreement. The EWSA provides: "Except for the Water Delivery Obligation and the Easement, [Wheeler Ridge Farms, LLC] acknowledges and agrees that it has no interest, whether legal or equitable, in the water rights appurtenant to the [Wildlands's] property, and specifically disclaims any such interest. . . ." And, in a separate section, the EWSA requires that the water must be delivered at a rate equal to or greater than 5.71 gallons per minute. Again, the settlement agreement contained no such provisions, see § II REF _Ref369871410\ r\h A, ante, and the court had no authority to "rewrite the oral settlement agreement or add what was omitted." (Canaan, supra, 211 Cal.App.4th at p. 1126.)
Therefore, we reject Wildlands's argument that the July 29, 2011, order merely conformed the judgment to the terms of the settlement. As outlined above, the order adds terms that are nowhere to be found in the settlement language.
Moreover, the judgment itself was merely an incorporation of the settlement language. It is illogical that new, additional terms can conform two documents that already contain identical language.
Wildlands defends the order by arguing "the trial court was faced with the need to provide additional meaning to certain aspects of the negotiated settlement. The existing judgment did not specify all of the various different procedures, processes and terms which needed to be performed, nor how those procedures, processes and terms were to be performed or otherwise implement[ed]. In order to allow enforcement, all material terms needed to be defined with clarity. . . ." Wildlands notes the settlement "inherently left open the need for further negotiations on key terms and conditions."
This argument does not advance Wildlands's cause on appeal. "A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. [Citations.]" (Hines v. Lukes, supra, 167 Cal.App.4th at p. 1182, fn. omitted. See also Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-814.) Wildlands's contention that the settlement left open the need for further negotiations on key terms and conditions undermines the validity of the settlement itself. If anything, Wildlands's argument supports reversal of the July 29, 2011, order as being predicated on an invalid settlement and judgment.
Wildlands also contends that the court had authority to issue the July 29, 2011, as a modification of a permanent injunction.
Wildlands's strained classification of the July 29, 2011, order as an injunction is questionable. Nonetheless, Wildlands has failed to provide any authority for the proposition that a court may add or alter terms of a settlement entered under section 664.6 by deeming the original judgment an injunction. Indeed, such a rule would run counter to Canaan, supra, 211 Cal.App.4th 1115 and Hernandez, supra, 126 Cal.App.4th 1161, which disapprove judicial rewriting of settlement agreements.
Wildlands does accurately quote Barnes v. Chamberlain (1983) 147 Cal.App.3d 762 (Barnes), as stating: "An equity court has inherent power to make its decree effective by additional orders affecting the details of performance, irrespective of reservation of power in the decree. [Citations.]" (Id. at p. 767.) But, the Barnes court took care to note that the followup orders at issue did not "alter the substantive rights of the parties." (Id. at p. 769. Accord, Hercules Glue Co., Ltd. v. Littooy (1941) 45 Cal.App.2d 42, 45.) Conversely, the July 29, 2011, order at issue here did alter the substantive rights of the parties and was not limited to details of performance.
Requiring Wheeler Ridge Farms to disclaim water rights is not a detail of performance; nor is the subordination of the water delivery obligation to Wildlands's historical water use.
In their briefing, plaintiffs also seek to vacate a portion of the April 10, 2010, order. They argue the April 10, 2010, order exceeded the trial court's jurisdiction and is void. Therefore, plaintiffs contend, the April 10, 2010, order is subject to either direct or collateral attack without any time limitation.
Even if plaintiffs are correct that they could have appealed the April 10, 2010, order at any time, they have not actually done so.
On appeal, this court may review an order after a judgment made appealable by section 904.1, subdivision (a)(1). (§ 904.1, subd.(a)(2).) We may also review "any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects" the order appealed from. (§ 906.) We may not, however, review "`"any decision or order from which an appeal might previously have been taken.'" [Citation.]" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; see also § 906.) The April 10, 2010, order was a postjudgment order made appealable by section 904. 1, subdivision (a)(2). And because it was appealable, the April 10, 2010, order is not reviewable absent a notice of appeal identifying it.
It may be, as plaintiffs contend, that the April 10, 2010, order is void and may be appealed from at any time. But just because an order may be appealed does not mean it has been appealed. That is, even if the order is void, and even if that fact vitiates any deadline for filing a notice of appeal, it does not vitiate the need to file a notice of appeal altogether. Here, no notice of appeal was filed as to the April 10, 2010, order. Plaintiffs' only notice of appeal merely references orders entered on "July 29, 2011 and [a] minute order [dated] Aug. 3, 2011." "It would be beyond liberal construction to view that notice of appeal as relating to a further and different order, rendered a year previously. . . ." (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.) The April 10, 2010, order, even if appealable, is not reviewable on this appeal.
The trial court's July 29, 2011, order is reversed.
Levy, Acting P.J. and Detjen, J., concurs.
Such a disposition would replace one error with another. We are reversing the July 29, 2011, order because it went beyond the language of the settlement agreement. We will not, in the next breath, commit that error ourselves. "Neither this court nor the superior court can rewrite the oral settlement agreement or add what was omitted." (Canaan, supra, 211 Cal.App.4th at p. 1126, italics added.)
We do note that some of the language for the order proposed by plaintiff would not add to the terms of the settlement (e.g., "direct[ing] Wildlands to provide three million gallons of water per year.") As to those terms, a supplemental order is unnecessary because they are already contained in the judgment.
