Legal Question in Appeals and Writs in California

Re: How can a Judgment be modified?

There are (at least) two ways to approach this, but any method must account for the rule that the judgment cannot be modified while the appeal is pending. This is because the trial court no longer has jurisdiction to change the judgment so as long as the case remains on appeal.

The first approach is to attempt a Stipulation for Reversal, in which the parties ask the Court of Appeal to reverse the judgment with directions to the trial court to enter a new judgment modified per the stipulation. I use the word "attempt" because the Court of Appeal need not grant the request, and the procedure is generally "disfavored". Whether the Court of Appeal grants the stipulation depends on a variety of factors. See Civ. Pro. section 128.

The second approach is to enter into a settlement agreement that calls for modification of the judgment after dismissal of the case at the Court of Appeal. This also carries some risk because once the case is dismissed at the Court of Appeal, the original judgment is automatically effective and final. But once jurisdiction is returned to the trial court, the judge will probably conform the judgment to the settlement agreement.

Finally, it needs to be ascertained whether in fact the judgment itself truly needs to be modified, or whether, in the alternative, the parties will simply agree to abide by the settlement agreement.

I would need more information to assess the best method by which to achieve the goals of the parties.

I am a certified appellate law specialist with over 20 years of civil appellate experience. You can review my website for more information: www.foxappeals.com

If you would like to discuss this matter further, please contact me.

Re: How can a Judgment be modified?

There is an additional method I have sen used, besides what Mr. Fox describes. A motion for a limited remand to the trial court for settlemetn purposes is made in the court of appeal. If granted, the case goes back to the trial court, where a settlement can be achieved. An appellate order for this is generally good for 60 days, and needs to be renewed if more time is needed.

Whether or not this means a change can be made to the judgment, or whether you really need a judgment if the case is being settled, are separate questions.

Re: How can a Judgment be modified?

Let me add this to what the others have already said. You cannot change the wording of a court decision merely be agreeing with the other parties on the wording. The court who decided the case must agree to the proposed change in wording, and in order to do so, the court must have jurisdiction over the case. Generally, while a case is under appeal, the trial court does not have jurisdiction. So, the judgment cannot be changed unless and until jurisdiction over the case is vested in the trial court.

I note that you say the judgment you want to amend �is not final� but don�t really explain what you mean by that. Not infrequently the appeal procedure is commenced before the ruling of the trial court is a form that is properly a final, appealable judgment. That is to say, the appeal is taken too early from what is only a tentative judgment or is some other form of trial court ruling that does not qualify as a final judgment. If an appeal is taken from a non-final judgment, the notice of appeal has no actual legal effect on the jurisdiction of the trial court, and the �tentative judgment� or non-final ruling by the trial court can be amended and changed. If upon closer examination, you (your attorneys) find that an appeal was taken from a non-final trial court decision, the best thing to do then is write a letter to the appeal court � preferably signed by counsel for both sides -- advising the court that the appeal notice was from a non-final/incorrect judgment and asking for a stay of appeal proceedings until you�ve had a chance to enter a correct final judgment in the trial court. After the correct final judgment is entered, you can proceed to settlement, either on your own or under the auspicious of the appeal court. If settlement is reached, you can dismiss the appeal; if not, the appeal can go forward upon the corrected final judgment.

Also, even if a final judgment was entered, your description of the problem tends to indicate that the entry of the judgment was a mistake in that the wording of the judgment does not accurately reflect the actual ruling and finding of the trial court. If so, the entered judgment may be void or voidable, rendering the appeal notice a nullity (which, in turn, would mean the trial court never lost jurisisdiction over the case). In either event, the appeal court may well be receptive to the above outlined procedure for entering a corrected judgment and thereupon deeming the appeal notice to be from the corrected judgment.