Filed 7/24/15
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


In re the Marriage of DONNA and MARK                H040955
OLIVEREZ.                                          (Santa Cruz County
                                                    Super. Ct. No. FL024506)

DONNA OLIVEREZ,

        Appellant,

            v.

MARK OLIVEREZ,

        Respondent.



                                      INTRODUCTION
        Appellant Donna Oliverez (wife) petitioned to dissolve her marriage to respondent
Mark Oliverez (husband). The parties purportedly entered a marital settlement agreement
(hereafter “the Agreement”), and husband subsequently filed a motion to enforce
judgment pursuant to Code of Civil Procedure, § 664.6.1 The trial court denied the
motion, finding the Agreement unenforceable. Thereafter, the case was reassigned to a
different trial court judge. After a trial on the merits, the court reconsidered and vacated
the first trial judge’s finding that the Agreement was unenforceable.




        1
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
       On appeal, wife contends that the second trial judge erred in reconsidering and
vacating the prior ruling of another trial judge. For the reasons stated below, we will
reverse and remand.
                      FACTUAL AND PROCEDURAL BACKGROUND
       The parties were married in 1993 and separated in January 2007. Wife filed the
petition for dissolution of marriage on January 19, 2007, and since then, the divorce
proceedings have been “contentious” and “highly litigated” by the parties. At least five
different judicial officers have made rulings in the underlying proceedings. Each party
has been self-represented at various times. Additionally, wife has been represented by
two different attorneys and husband has been represented by six different attorneys.
       In April 2008, both parties signed the purported marital settlement agreement,
which set forth terms determining child custody and spousal and child support. It also
stated terms dividing the community assets, obligations, property rights, and other
financial rights, interest, and claims. By its terms, the Agreement was intended to
achieve a global settlement between the parties and was to be incorporated into the
judgment of dissolution of marriage.
       On March 26, 2009, husband filed a motion to enter judgment based on the
Agreement (§ 664.6). Wife opposed this motion, arguing that the parties “never fully
agreed to the terms of the proposed settlement agreement.” (Italics added.) On
December 1, 2010, the Honorable Heather D. Morse denied husband’s motion for
judgment, ruling “that there was never a ‘ “meeting of the minds” ’ in regards to the
purported marital settlement agreement such that it is thus unenforceable.”
       At some point after the denial of husband’s motion for judgment, and for reasons
unknown from the record before us, the case was transferred to the Honorable Stephen S.
Siegel. After several continuances, the case proceeded to trial, beginning on
August 6, 2012. The court trial took 15 days over a period of nine months. As the
Agreement had been ruled unenforceable, the parties litigated several issues at trial that

                                             2
had previously been discussed in the Agreement, such as the division of property, assets,
obligations, and debts as well as child and spousal support.
       On October 28, 2013, Judge Siegel issued a “Tentative Ruling on Court Trial.” In
the tentative ruling, Judge Siegel stated that he was going to reconsider Judge Morse’s
ruling that the Agreement was unenforceable. On December 19, 2013, the court issued a
formal notice of its intention to reconsider the December 1, 2010 ruling on its own
motion, and it afforded the parties an opportunity to brief the issue. Both parties filed
additional briefing.
       On March 4, 2014, the trial court issued a statement of decision and final
judgment, in which the court discussed the prior ruling on husband’s motion to enter
judgment pursuant to section 664.6. The court stated that the prior ruling denying the
motion was “improvident and erroneous. [The prior ruling] was simply not supported by
substantial evidence. It was unsupported by any evidence. No witnesses testified and no
exhibits were offered or admitted. Of course the court was entitled to consider
declarations. However, there was only one relevant declaration submitted. That was
[husband’s] declaration that he and [wife] and their attorneys had signed the attached
[Agreement] and that, by the terms of the [Agreement], the parties agreed that the terms
of the [Agreement] were to be incorporated into judgment” The court also found that
there was insufficient evidence to support wife’s claim that she was under duress,
coercion, fraud, or undue influence. Citing Le Francois v. Goel (2005) 35 Cal.4th 1094
(Le Francois), the trial court stated that it had the “inherent power to reconsider the prior
ruling and correct a previous but clearly erroneous ruling” of an interlocutory order. The
court thus reconsidered and vacated the prior ruling on the Agreement. In the same
order, the court entered the judgment of dissolution, and it incorporated the Agreement
into the judgment.
       The notice of entry of judgment was served on April 30, 2014. Wife timely
appealed the judgment of dissolution.

                                              3
                                        DISCUSSION
       On appeal, wife asserts that the trial court erred in granting reconsideration of the
prior ruling, after three years had elapsed, and after the parties had gone through trial.
She also contends that Judge Siegel erred in reconsidering and reversing a prior ruling
made by a different trial court judge.2 Husband did not file a respondent’s brief on
appeal. Thus under California Rules of Court, rule 8.220, this court may decide the
appeal on the record, the opening brief, and any oral argument by wife.
       A trial court’s discretion to reconsider another judge’s prior ruling is necessarily
narrow and usually only appropriate when the prior judge is unavailable. (Curtin v.
Koskey (1991) 231 Cal.App.3d 873, 876-878 (Curtin).)
       Section 1008 governs parties’ motions for reconsideration and their renewal of
prior motions. It expressly specifies and limits the court’s jurisdiction to reconsider a
prior ruling or to entertain a renewed motion when such relief is sought by a party. A
motion for reconsideration by a party must be filed within “10 days after service upon the
party of written notice of the entry of the order” and the motion may be granted only
“upon new or different facts, circumstances, or law,” which matters must be shown by
affidavit as part of the motion. (§ 1008, subd. (a).) Section 1008 governs parties’
motions for reconsideration or their renewal of a prior motion “whether the order
deciding the previous matter or motion is interim or final.” (§ 1008, subd. (e).)
       In Le Francois, our Supreme Court considered whether, notwithstanding the
provisions of section 1008, a trial court may “reconsider interim orders it has already
made in the absence of new facts or new law[.]” (Le Francois, supra, 35 Cal.4th at

       2
         Wife additionally contends that the trial court erred in reconsidering the
Agreement because a “nunc pro tunc order cannot declare that something was done that
was not done.” This contention is meritless. The nunc pro tunc doctrine permits a court
to correct clerical error, not judicial error. (In re Candelario (1970) 3 Cal.3d 702, 705.)
As Judge Siegel’s ruling sought to correct a judicial error, the nunc pro tunc doctrine does
not apply in this instance, and we need not address the issue further.


                                              4
p. 1101.) In that case, the defendants brought a renewed motion for summary judgment
based on the same grounds as their first motion. Vacating the prior ruling of the first trial
judge, a second trial judge granted the renewed motion for summary judgment. (Id. at
p. 1097.) The Supreme Court reversed on the ground that the defendants did not meet the
statutory requirements for a motion for reconsideration. (Id. at p. 1109.) However, the
court interpreted section 1008 “as imposing a limitation on the parties’ ability to file
repetitive motions, but not on the court’s authority to reconsider its prior interim rulings
on its own motion.” (Id. at p. 1105, fn. omitted.) Thus, if the statutory requirements
under section 1008 are not met, “any action to reconsider a prior interim order must
formally begin with the court on its own motion.” (Id. at p. 1108.) Here, the trial court,
in its “Tentative Ruling on Court Trial,” and later by formal notice, stated that it would
reconsider the prior order on the Agreement on its own motion. Thus, although the trial
court did not consider any new facts or new law, under Le Francois, it had the inherent
authority to reconsider a prior interim order. (Ibid.)
       However, Le Francois did not resolve the question of whether one trial judge may
reverse the ruling of another trial judge. In Le Francois, the Supreme Court noted that
the “Court of Appeal held that because the motion was transferred [to another judge]
without objection, plaintiffs could not challenge the propriety of that transfer on appeal.”
(Le Francois, supra, 35 Cal.4th at p. 1097, fn. 2 (italics added).) The question of “when
and under what circumstances one judge may revisit a ruling of another judge” was thus
not on review, and the Supreme Court specifically left open that question. (Ibid.)
       Generally, one trial court judge may not reconsider and overrule an interim ruling
of another trial judge. (Curtin, supra, 231 Cal.App.3d 873; Ziller Electronics Lab GmbH
v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 (Ziller); Morite of California v.
Superior Court (1993) 19 Cal.App.4th 485, 493.) “This principle is founded on the
inherent difference between a judge and a court and is designed to ensure the orderly
administration of justice. ‘If the rule were otherwise, it would be only a matter of days

                                              5
until we would have a rule of man rather than a rule of law. To affirm the action taken in
this case would lead directly to forum shopping, since if one judge should deny relief,
defendants would try another and another judge until finally they found one who would
grant what they were seeking. Such a procedure would instantly breed lack of confidence
in the integrity of the courts.’ [Citation.]” (In re Alberto (2002) 102 Cal.App.4th 421,
427.) “For one superior court judge, no matter how well intended, even if correct as a
matter of law, to nullify a duly made, erroneous ruling of another superior court judge
places the second judge in the role of a one-judge appellate court.” (Ibid.)
       However, there are narrow exceptions to this general rule. (See In re Alberto,
supra, 102 Cal.App.4th at p. 430.) “[W]here the judge who made the initial ruling is
unavailable to reconsider the motion, a different judge may entertain the reconsideration
motion.” (Ziller, supra, 206 Cal.App.3d at p. 1232.) Another exception is when the facts
have changed or when the judge has considered further evidence and law. (People v.
Riva (2003) 112 Cal.App.4th 981, 992-993 (Riva); Tilem v. City of Los Angeles (1983)
142 Cal.App.3d 694, 706.) Additionally, a second judge may reverse a prior ruling of
another judge if the record shows that it was based on inadvertence, mistake, or fraud.
(Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1069 (Armstrong).)
Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to
overturn that ruling. (Riva, supra, at p. 992.)
       We first note that the record before us does not contain Judge Morse’s original
ruling on the Agreement or the hearing transcript or minute order on that ruling. Nor do
we have a full record of the parties’ moving papers.3 It is unclear whether the documents
in our record contains all the evidence and declarations considered by Judge Morse to


       3
         The documents in this record relating to the December 1, 2010 ruling are wife’s
“Response and Opposition to Motion to Enter Judgment (CCP § 664.6)” and the “Reply
Memorandum of Points and Authorities.” Husband’s motion to enter judgment pursuant
to section 664.6 is not a part of this record.

                                              6
make her ruling. Thus, we are unable to fully ascertain the reasons for Judge Morse’s
finding that the Agreement was unenforceable.
       In any event, Judge Siegel explained that he decided to reconsider Judge Morse’s
ruling because there was insufficient evidence to find the Agreement unenforceable.
Thus, Judge Siegel’s reconsideration was not based on new facts, evidence, or law (see
Riva, supra, 112 Cal.App.4th at pp. 992-993), nor was there a showing that the original
ruling was a result of inadvertence, mistake, or fraud. (Armstrong, supra, 232
Cal.App.3d at p. 1069.) Furthermore, there was nothing to suggest that Judge Morse was
unavailable at the time of the hearing.4 Accordingly, none of the recognized exceptions
to the general rule that one trial judge cannot overrule another trial judge, are applicable
in this instance. Rather, it appears that Judge Siegel merely disagreed with Judge
Morse’s prior decision. Indeed, after conducting his own review of the evidence relating
to the motion to enter judgment on the Agreement, Judge Siegel found the prior ruling
“clearly erroneous,” because there was “no evidence, testimony, exhibit or declaration
before the court that might support [Judge Morse’s] finding that ‘there was never a
“meeting of the minds.” ’ ” Furthermore, he found insufficient evidence of wife’s claim
that she was under duress, coercion, fraud, and undue influence at the time she signed the
Agreement. Though Judge Siegel came to a different conclusion based on his review of
the evidence, his disagreement with Judge Morse’s finding is not enough to overrule the
prior decision. (Riva, supra, at pp. 992; In re Alberto, supra, 102 Cal.App.4th at p. 427.)
Accordingly, we conclude that Judge Siegel erred in vacating the prior ruling on the
Agreement.



       4
        On the court’s own motion, we will take judicial notice of the fact that Judge
Heather D. Morse is currently listed as an active judge at the Santa Cruz County Superior
Court. (Evid. Code, § 452, subd. (h); see <www.santacruzcourt.org/info/judicial-
assignments> (as of Jul. 22, 2015).)


                                              7
       Not only was the decision to overrule the prior ruling erroneous, but it also
resulted in prejudice to the wife. Judge Siegel’s decision came three years after the
original ruling. As a consequence, both parties continued to litigate many of the issues
that had been addressed in the Agreement over the course of three years, conducted a 15-
day trial, and expended considerable time and resources. The parties did so in reliance of
Judge Morse’s original ruling that the terms of the Agreement were unenforceable. This
reliance was reasonable. (Cf. Greene v. State Farm Fire & Casualty Co. (1990) 224
Cal.App.3d 1583, 1592. We find that under the circumstances of this case, once the court
had determined that the Agreement was unenforceable, wife had the right to believe the
ruling was definitive. It follows that the reconsideration of the prior ruling on the
Agreement resulted in unfairness to the wife.
                                       DISPOSITION
       The judgment is reversed and remanded.




                                              8
                                        ______________________________________
                                                   RUSHING, P.J.




WE CONCUR:




____________________________________
      ELIA, J.




___________________________________
      WALSH, J.*




Oliverez v. Oliverez
H039750




      *
         Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                           9
Trial Court:                        Santa Cruz County Superior Court
                                    Superior Court No.: FL024506


Trial Judge:                        The Honorable
                                    Stephen S. Siegel



Attorneys for Appellant             Law Office of Howard L. Hibbard
Donna Olivarez:                     Howard L. Hibbard




No appearance for Respondent




Olivarez v. Olivarez
H040955




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