MANELLA, J.
Appellant Yoav Botach appeals the trial court's post-judgment order denying his motion to correct an earlier order awarding costs. We conclude the court properly denied his motion, as he failed to identify any clerical error in the cost award and correction of any other error was beyond the scope of the motion.
Respondent Judith Boteach brought suit against appellant Yoav Botach, his brother Shlomo Botach, and Yoav's son BarKochba Botach. She also sued Botach Management — a partnership between Yoav and Shlomo — and Botach Tactical — a business operated by BarKochba.
The first through third causes of action, for breach of oral and implied agreements, were asserted against Yoav only. In addition, Yoav was the sole named defendant in the sixth cause of action (for intentional misrepresentation), the eleventh through thirteenth causes of action (for assault, battery and intentional infliction of emotional distress), the nineteenth cause of action (for breach of joint venture agreement), and the twentieth cause of action (for breach of fiduciary duty). With respect to the other defendants, Judith sought an accounting and imposition of a constructive trust or equitable liens on property they allegedly held for the benefit of Yoav. Judith also claimed to have performed services for all defendants and sought recovery under theories of quantum meruit and failure to pay wages due. She further asserted claims against all defendants for conversion and unfair business practices.
In November 2007, defendants as a group served a joint offer to compromise pursuant to section 998 of the Code of Civil Procedure.
The issues in the complaint were resolved by a court trial. In a judgment entered August 31, 2009, the court awarded Judith $50,000 for Yoav's assault, battery and infliction of emotional distress and $200,000 for her quantum meruit claim against Yoav only.
After the judgment was entered, defendants submitted a single cost memorandum, seeking costs totaling $374,502.47. Judith submitted a cost memorandum of her own and moved to tax defendants' costs. She contended that defendants had failed to allocate between costs incurred before and after the November 2007 section 998 offer or between Yoav and the other defendants.
By order dated March 2, 2010, the court denied Judith's motion to tax costs in its entirety. The court reduced Judith's claimed costs to $80,969.42. The court then inserted the appropriate figures into the blanks in the previously-entered judgment, so that the final cost award stated: "Costs are awarded to each and every prevailing party according to law. [Judith] shall have and recover her costs in the amount of $80,969.42 from [Yoav]. Defendants shall recover costs in the amount of $374,502.47 from [Judith]." The final order said nothing about deduction or offset. Neither party appealed this order.
On March 26, 2010, Yoav, acting alone, filed an "Application for Order Correcting Costs." Yoav asked that the court correct the final award by applying the $250,079 in post-offer costs awarded to all defendants against the $250,000 awarded to Judith. This would leave Judith with a zero judgment. Accordingly, the application further requested that the judgment be "corrected" by recognizing that Judith was not a prevailing party and eliminating the costs awarded to Judith. Finally, the application requested that the court enter a net judgment in favor of all defendants in the amount of $124,502.47 (the $374,502.47 awarded to defendants for all their pre-offer and post-offer costs, less the $250,000 awarded to Judith).
Judith opposed, contending Yoav was entitled to offset only his portion of the post-offer costs under section 998, subdivision (e), not all the post-offer costs. Judith also contended, for the first time, that the offer to compromise was invalid because it was a joint offer, not apportioned among defendants. In his reply, Yoav contended that all the costs awarded to all defendants could properly be applied to offset the judgment, although the judgment was against Yoav alone.
By stipulation, Yoav's motion was continued to a date when Judge Ettinger, who had presided over the trial, entered the final judgment and issued the cost award, was no longer on the bench. The motion was heard by Judge Munoz. By order dated April 9, 2010, the court denied Yoav's motion to correct. In its order, the court stated, among other things, that the offer to compromise was invalid because it was not allocated between defendants, and it was impossible to determine whether the judgment Judith obtained against Yoav was more favorable than his portion of the offer. The court further stated that it had "no way of knowing what [Yoav's] costs actually were." Accordingly, Yoav was "not entitled to offset his costs." Yoav appealed the April 9 order.
Yoav contends that Judge Munoz committed error by denying his motion to correct Judge Ettinger's March 2, 2010 order. On appeal, he contends the March 2 order should have been "corrected" or amended in two respects: (1) by applying the $250,079 awarded to all defendants for post-offer costs against the $250,000 awarded to Judith on her claims against Yoav, thus reducing her damage award to zero; and (2) by eliminating the costs awarded to Judith because Judith could not rightfully be deemed the prevailing party after this offset.
Our conclusion that Yoav's motion was properly denied derives from the limited nature of the relief available at the post-judgment, post-cost award stage of the litigation. The substantive disputes between the parties were resolved in the trial and the proceedings on the parties' post-judgment cost memoranda and motions to tax costs. In the judgment, the trial court awarded Judith $250,000 for her claims against Yoav and nothing for her claims against the remaining defendants. After entry of judgment, Judith contended she was the prevailing party with respect to Yoav and sought her costs from him. Yoav did not dispute Judith's claim. Indeed, by seeking only the costs he incurred after the November 2007 offer to compromise — costs which are awardable under section 998 without regard to prevailing party status — Yoav essentially conceded that Judith was the prevailing party as to him in the litigation. Yoav did dispute calculation of the final award to Judith, contending that the costs claimed by all defendants should be used to offset the amount Yoav owed to Judith. In its March 2, 2010 order, the trial court resolved both issues in Judith's favor by awarding Judith $250,000 plus costs to be paid by Yoav without offset.
Yoav did not appeal the judgment or the March 2 order. During the period in which an appeal might have been taken, he elected instead to file the motion for an order correcting the March order, essentially contending that it contained inadvertent errors and omissions. Although Yoav did not specifically so state, the remedy he sought derives from the trial court's inherent power to correct clerical errors in its judgments and orders (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034) and from section 473, subdivision (d), which permits the court "upon motion of the injured party, or its own motion," to "correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed." However, the type of error correctable in this manner is limited to "`clerical error,'" which is defined as "`"errors, mistakes, or omissions which are not the result of the exercise of the judicial function."'" (Conservatorship of Tobias, supra, at p. 1035, quoting George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 480-481.) Clerical error must be distinguished from judicial error, which is defined as "the deliberate result of judicial reasoning and determination." (Conservatorship of Tobias, supra, at p. 1035.) If the judgment or order rendered accurately expresses the court's intent, it cannot be corrected by an amendment, but must be rectified by the ordinary procedures for attack on a judgment or order, such as a motion to vacate or an appeal. (Ibid.; People v. Bhakta (2008) 162 Cal.App.4th 973, 981; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 65, p. 600.) In the case of judicial error, "the decision of the trial court having been once made after regular submission of the motion[,] its power is exhausted . . . ." (People v. Bhakta, supra, at p. 981, quoting Phelan v. Superior Court (1950) 35 Cal.2d 363, 371.)
Neither in his brief on appeal nor in his motion to the trial court did Yoav point to anything in the record to suggest that the March 2, 2010 order was not the order Judge Ettinger intended with respect to Judith's prevailing party status or offset. Instead, he asked Judge Munoz and now asks us to presume the order contained inadvertent errors and to manipulate the numbers set forth in the order to reach a result more favorable to him. We see no basis for doing so.
First, with respect to Judith's status as prevailing party, the court's conclusion was clear: by awarding Judith approximately $80,000 in pre-offer costs to be paid by Yoav, it unambiguously deemed her to be the prevailing party as to him.
With respect to offset, Yoav argued in the opposition to Judith's motion to tax costs that the costs incurred by all defendants should be used to offset the $250,000 Yoav owed to Judith. The court was thus aware of Yoav's position. Nevertheless, its March 2 order left Judith's $250,000 award intact and added $80,000 in costs to her recovery from Yoav. Yoav points out that the application of the section 998, subdivision (e) offset is mandatory. The offset is mandatory, but only if the trial court has been supplied the information needed to determine the amount. (See Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 974-975 [where defendants' cost memorandum failed to distinguish the prevailing defendants' costs from the losing defendant's costs, trial court not did not err in failing to allocate sua sponte, despite section 1032's mandatory provisions requiring costs to be awarded to prevailing defendants].) Yoav did not submit a cost bill summarizing his post-offer costs. Instead, he joined the other defendants in submitting a joint cost bill which included the costs incurred by the other defendants pre-offer and the costs incurred by all defendants post-offer. The cost bill failed to allocate between post-offer costs incurred by Yoav and those incurred by the other defendants.
As Yoav failed to establish that the March 2 order contained clerical error, his subsequent request to correct that order was beyond the trial court's jurisdiction. (See People v. Bhakta, supra, 162 Cal.App.4th at p. 981 [trial court acted in excess of jurisdiction when it entered an amended judgment containing substantive changes during post-judgment proceedings].) Although the court instead denied the request based on its finding that the offer to compromise was invalid, we affirm the April 9 order as correct in its result.
The order of April 9, 2010 is affirmed. Costs are awarded to respondent.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
Yoav's only basis for contending that Judith was not the prevailing party in her claims against him is that her award, exclusive of pre-offer costs, was less than the post-offer costs awarded to all defendants. His position has been rejected by our Supreme Court. In Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, the plaintiff recovered less than the defendant's section 998 offer, and the defendant's post-offer costs far exceeded the amount of the judgment, even including the plaintiff's pre-offer costs. Nonetheless, the Supreme Court held that the plaintiff was entitled to recover its pre-offer costs as the prevailing party under section 1032. (20 Cal.4th at pp. 1108-1112.) Describing the plaintiff as "a party with a net monetary recovery," the court stated: "To conclude that section 998 cuts off plaintiff's right to its preoffer costs, including preoffer attorney fees, we would have to overrule a century of authority recognizing this right." (Id. at pp. 1108, 1110.) The court further explained that a defendant seeking costs under section 998 is "by definition is not the prevailing party and is not entitled to any category of costs on that basis. Under section 998, the defendant's entitlement to costs derives not from its status as a prevailing party but from the plaintiff's failure to accept a reasonable settlement offer." (20 Cal.4th at p. 1114.) Contrary to a contention made by Yoav's counsel at oral argument, the Supreme Court's decision in Goodman v. Lozano (2010) 47 Cal.4th 1327, is not to the contrary. That case did not address section 998 or suggest that an offset under section 998, subdivision (e) changes the definition of prevailing party under section 1032.
Judith contends the appeal should be dismissed as moot because her debt to defendants has been discharged by bankruptcy. (Judith's separate motion to dismiss the appeal as moot was denied by this court by order dated December 15, 2010.) She claims "the [bankruptcy] discharge prohibits any attempt to collect a debt that has been discharged" and cites Hurley v. Bredehorn (1996) 44 Cal.App.4th 1700, 1705 for the proposition that "`an appeal from entry of a judgment on a debt which has been discharged in bankruptcy is moot and must be dismissed.'" This appeal is not from entry of a judgment on Judith's debt but from Yoav's motion to correct a judgment he owes to Judith. Resolution of the issues presented is permitted by the bankruptcy court's order granting relief from stay.
