Filed 5/24/07 Allen v. Mercedes-Benz USA CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT JOHN ALLEN et al., F050083 Plaintiffs and Appellants, (Super. Ct. No. 8289) v. MERCEDES-BENZ USA, LLC, OPINION Defendant and Respondent. APPEAL from a judgment of the Superior Court of Mariposa County. Donald G. Umhofer, Judge. Anderson Law Firm and Martin W. Anderson for Plaintiffs and Appellants. Universal, Shannon & Wheeler, Jon D. Universal and Robert M. Shannon for Defendant and Respondent. -ooOoo- INTRODUCTION Plaintiffs John and Sharilyn Allen prevailed on their claim against defendant Mercedes-Benz USA, LLC (MBUSA) under the Song-Beverly Consumer Warranty Act (Civ. Code,1 § 1790 et seq., “the Song-Beverly Act”), also popularly known as the 1 Further statutory references are to the Civil Code unless otherwise specified. “lemon law.” On appeal, plaintiffs contend the trial court erred in awarding to MBUSA an “equitable offset” for plaintiffs’ postverdict use of the subject vehicle. Plaintiffs also contend the trial court erred in adding a provision to the judgment which requires plaintiffs to return the vehicle to an authorized dealer identified in writing by MBUSA. Finally, plaintiffs contend the trial court erred in failing to include in the judgment an award of postjudgment interest. For reasons discussed below, we conclude that the trial court erred in awarding MBUSA an offset for plaintiffs’ postverdict use of the vehicle and reverse the offset award. But we conclude the court did not err in adding the provision requiring MBUSA to designate the place of return of the vehicle. We further conclude that the issue of plaintiffs’ entitlement to postjudgment interest is one more appropriately addressed by the trial court on remand. BACKGROUND In late November 1999, plaintiffs purchased a new Mercedes-Benz C280 for $49,000. The vehicle had a five-year/50,000-mile warranty. Within a few weeks of purchase, the vehicle began to demonstrate electrical problems, which persisted despite numerous repair attempts.2 In March 2002, plaintiffs sued MBUSA for breach of express warranty under the Song-Beverly Act. The case went to jury trial in February 2005. The jury returned with a verdict in favor of plaintiffs.3 In its special verdict, the jury found MBUSA violated the replace-or-repurchase provisions of the Song-Beverly Act, plaintiffs were entitled to recover actual damages of $45,460.99, and the mileage on the vehicle was 14,454 miles when it was first brought in for repair. 2 There is no recorder’s transcript of the jury trial in the record on appeal. Thus, circumstances concerning the subject vehicle are taken from the allegations in plaintiffs’ complaint. 3 The record does not disclose the date the jury reached its verdict but MBUSA identifies the date as February 25, 2005, in its brief on appeal. 2. On March 28, 2005, the trial court signed and entered a proposed judgment prepared by plaintiffs’ counsel. Plaintiffs failed to serve MBUSA with notice of entry of judgment. On October 7, 2005, MBUSA filed a motion to vacate and enter a new judgment under Code of Civil Procedure section 663 and requested sanctions against plaintiffs’ counsel under Code of Civil Procedure section 128.5. MBUSA argued that, while it did “… not quarrel with the jury’s verdict …”, “… due to numerous procedural violations, plaintiffs’ counsel caused an improper judgment to be entered by this court which contained numerous errors .…” MBUSA asserted three errors in the judgment entered on March 28, 2005: (1) a miscalculation, by approximately $20, of the statutory offset for plaintiffs’ use of the vehicle prior to the first delivery for repair; (2) the incorporation of a memorandum of costs, including an award of attorney’s fees, although the reasonableness thereof had not been duly determined by the trial court; and (3) the absence of a provision for the return of the vehicle in an undamaged condition save normal wear and tear. MBUSA also asserted that plaintiffs’ counsel should be sanctioned for her conduct in connection with the entry of the March 28, 2005, judgment. According to defense counsel, during a telephone conversation on March 17, 2005, plaintiffs’ counsel misled him by representing that she had not yet filed the costs memorandum with the court, and that she agreed MBUSA need not file a motion to tax costs; instead, she would submit her time sheets to defense counsel, and they would try to resolve the issue without a motion. Plaintiffs’ counsel also agreed that she would prepare a second proposed judgment addressing the errors pointed out by defense counsel. Thereafter, defense counsel did not hear from plaintiffs’ counsel for six months despite sending her follow- up letters and making numerous attempts to contact her by telephone. During this six- month period, defense counsel was unaware that the judgment and costs memorandum plaintiffs’ counsel sent him on March 3, 2005, had also been submitted to the court the 3. same day, and subsequently signed and entered by the trial court on March 28, 2005. The first time defense counsel learned the judgment had been entered was after receiving a letter from plaintiffs’ counsel in late September, demanding that MBUSA satisfy the judgment by early October. Although the letterhead showed plaintiffs’ counsel had changed office locations, she had failed to provide defense counsel any notice of a change of address. Based on the “egregious conduct” of plaintiffs’ counsel, MBUSA requested sanctions of $1,500 against her under Code of Civil Procedure section 128.5. MBUSA also argued that the judgment should be further reduced based on plaintiffs’ use of the vehicle during the six-month period when plaintiffs’ counsel failed to communicate with defense counsel. MBUSA argued that plaintiffs should not be allowed to benefit to MBUSA’s detriment from the delay caused by their attorney’s “inappropriate absence.” In response to MBUSA’s allegations of misconduct, plaintiffs’ counsel submitted a declaration disputing that she represented to defense counsel that she had not filed the costs memorandum with the court or that she agreed to draft a second proposed judgment addressing the errors he asserted, noting that she had expressed disagreement with some of the language defense counsel insisted should be included in the judgment. She also stated she could not recall agreeing to submit her time sheets to defense counsel. In her declaration, plaintiffs’ counsel suggested that it was defense counsel’s responsibility to file formal objections to the proposed judgment or a motion to tax costs. Plaintiffs’ counsel acknowledged that she failed to stay in contact with defense counsel during the period after the judgment was entered and failed to serve MBUSA with notice of entry of judgment but disputed the suggestion that she acted deliberately or in bad faith. Plaintiffs’ counsel set forth personal circumstances, including the diagnosis of her best friend with cancer, to explain her lack of communication and any dilatory handling of the case on her part. 4. The matter came on for hearing on January 30, 2006. The minute order reflects the trial court ruled as follows: “The Court decided to construe Motion as one to correct clerical error under section 473 CCP, finding that the Judgment was not one [intended] by the Court, to wit, lack of recitation of special verdict, incorrect calculation of statutory offset and inclusion of dollar amounts re costs and attorney fees. “The Court will prepare a corrected Judgment; clerk to mail a filed copy therefore to counsel which shall be deemed notice of entry of judgment. “Plaintiffs may re-file their Memorandum of Costs and will follow section 1033.5(c)(5) CCP re section 1974(d) CC. “The Court indicated that it would entertain a defendant’s motion for a monetary offset against the judgment based on plaintiffs’ eleven-month continued use of the vehicle. “Defendants’ prayer for section 128.5 CCP attorney’s fees re the motion is denied. The section is super[s]eded by section 128.7 CCP.” The trial court prepared a new judgment which was filed on February 6, 2006. The new judgment included a recitation of the special verdict, corrected the amount of the statutory offset for plaintiffs’ use of the vehicle before it was first delivered for repair (increasing it from $5,455.32 to $5,476), and included the following provision regarding the return of the vehicle: “That Plaintiffs John Allen and Sharilyn Allen return the 2000 Mercedes- Benz C280 motor vehicle, the subject of this action, to a Mercedes-Benz authorized dealer, identified in writing by the Defendant. Return of the subject vehicle shall be concurrent with payment of the monetary judgment.” On April 3, 2006, the trial court heard MBUSA’s motion for an equitable offset along with plaintiffs’ motion for attorney’s fees and MBUSA’s motion for judgment notwithstanding the verdict/new trial, and motion to tax costs. The hearing was not recorded. 5. The minute order from the April 3, 2006, hearing reflects that the trial court denied defendant’s motion for judgment notwithstanding the verdict and awarded plaintiffs costs in the amount of $2,561.11, and attorney’s fees in the amount of $30,075. With respect to the motion for an equitable offset, the trial court ruled as follows: “Defendant’s Motion for an Equitable Offset due to plaintiffs’ use of the subject vehicle after verdict and until the Motion for Judgment N.O.V. (12 months) is granted in the amount of $7,014.48, calculated based on the mileage of the vehicle in December, 2004, of 164,743; an average monthly mileage of 2,657 (164,743 divided by 62 months), and $0.22/mile IRS allowance for moving and medical. “The Court will allow a further offset of $0.22 for each mile over 201,941 to date of satisfaction of judgment while on plaintiffs’ appeal; however, such offset shall be tolled from the date of any Defendants’ appeal.” During the previous hearing on January 30, 2006, the trial court indicated that it arrived at its estimation of plaintiffs’ monthly mileage based on their expert’s trial testimony that in December 2004, the mileage on the vehicle was 164,743 miles, which the court divided by the length of time plaintiffs had owned the vehicle. Because there is no reporter’s transcript of the April 3, 2006, hearing, it is unclear why the trial court decided to use a rate of 22 cents per mile to measure the offset award. However, it appears that in its written motion for an equitable offset, MBUSA requested that the court calculate the offset based on IRS “standard mileage rates” of 40.5 cents per mile and 48.5 cents per mile for the relevant time periods, and sought a total offset of $13,130.51 against plaintiffs’ damages. IRS documents attached to MBUSA’s motion include references to a 22 cents per mile standard mileage rate for miles driven for medical or moving purposes. On April 3, 2006, the trial court once again amended the judgment, this time to reflect the offset award for plaintiffs’ postverdict use of the vehicle and potential future use. The amended judgment was filed the same day. 6. On April 20, 2006, plaintiffs timely filed a notice of appeal from the minute order and the amended judgment entered on April 3, 2006.4 DISCUSSION I. Equitable offset for plaintiffs’ postverdict use of vehicle Numerous points are debated by counsel but the primary question on appeal is whether the trial court erred in granting MBUSA’s motion for an equitable offset based on plaintiffs’ postverdict use of the vehicle. Because it appears the court could not properly invoke its equity powers to grant the relief sought by MBUSA, we reverse the offset award. A. Background MBUSA’s request for an offset was first made in its motion to vacate and enter a new judgment. MBUSA cited no legal authority in support of the offset request but asserted that plaintiffs should not be allowed to benefit from the use of the car during the six-month period their attorney failed to communicate with defense counsel after the judgment was entered without notice to MBUSA. During the hearing on MBUSA’s motion to vacate the judgment on January 30, 2006, the trial court’s comments towards the beginning indicated that it was inclined towards granting an offset to MBUSA, but not because of the numerous instances of alleged misconduct by plaintiffs’ counsel detailed by defense counsel in the moving papers and reiterated on appeal. Rather, the trial court appeared to take the position that MBUSA should get “some kind of consideration” for the fact the vehicle that would finally be returned to MBUSA would have incurred considerable mileage since the time 4 Plaintiffs also purport to appeal from the judgment entered on February 6, 2006, and seek modification to the earlier judgment, as well as the later one. Our review, of course, is limited to the final judgment entered on April 3, 2006. 7. MBUSA originally offered to buy it back from plaintiffs in 2000, as a result of to plaintiffs’ continuing use of the vehicle throughout the litigation.5 Plaintiffs’ counsel responded to the court’s comments on the plaintiffs’ continued use of the vehicle by noting: “They’re [sic] are cases that say if the [L]egislature had intended to charge purchasers for miles put on after the problems were discovered, the nonconformities were discovered, they would have said so. [¶] And yet the [L]egislature specifically said that the manufacturer is entitled to an offset only for those miles put on the vehicle prior to the discovery of the nonconformity.” (See e.g., Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1242-1244 (Jiagbogu) [rejecting manufacturer’s contentions that buyback request under Song-Beverly Act amounts to contract rescission, and that trial court should have instructed jury that manufacturer was entitled to postrescission offset for buyer’s continued use of vehicle after he requested a buyback, or that trial court should have exercised its “equity powers” to grant an offset for such use].) 5 We gather this was the court’s position from its following commentary on plaintiffs’ use of the vehicle: “Now, what strikes me over the life of this case is that, of course, the purchase was in November of ’99. They had their problems in 2001. [¶] In 2002 the lawsuit is filed. They go through one or two attorneys. The case doesn’t get tried until 2005. They’re still driving it. [¶] It has got 164,000 miles on it as of December of 2004. Then they get their judgment, literally whether it’s their fault or not, don’t do anything with that judgment for six months, and now we are kind of at the 11-month after the verdict. Still driving it. [¶] And my calculation was that over the 62 months, that from the time they owned it until there was an expert that looked at it in December of 2004, and that’s where it is getting the 164,000 mile figure from. [¶] They put on 2650 miles a month. So if they are still driving it that much over the period of time since they got their verdict, and got their judgment, they have put on another almost 30,000 miles. [¶] Why should Mercedes have offered these people a brand new car, years ago in 2002 or something. [¶] … [¶] They keep driving this car. They keep driving this car. Litigation gets dragged out to the point of trial. Now it gets dragged out to the point of Judgment. [¶] He is still driving the car. He has put on 102, 100,000 miles on this car since he had his problem. Why shouldn’t they, Mercedes, get some kind of consideration for the fact they’re getting a car now back 200,000 miles on it [if] they offered to buy back from him in 2000--” 8. The trial court then shifted its focus to plaintiffs’ postverdict use of the vehicle, yielding the following discussion: “THE COURT: … So anyway, at any rate back to it’s agreed that now the trial happened. The jury made their finding of 14,454, resulting in the statutory offset. “But they have driven it for almost another year. “[PLAINTIFFS’ COUNSEL]: Your Honor, to just pull a figure out of the air and say we are going to sanction these people for driving the car even though Mercedes wouldn’t pay the judgment and hadn’t done anything. “THE COURT: They didn’t know about the Judgment. “[PLAINTIFFS’ COUNSEL]: They knew that a Judgment had been presented to the Court. “THE COURT: They didn’t know that one was signed. They didn’t know they had to pay that yet. “[PLAINTIFFS’ COUNSEL]: If they were concerned about not having a Judgment, they could have always drafted one themselves. “There are a lot of things that the defense could have done and didn’t do. They – if I sat on it, they certainly sat on it, too. “So how can they come in, and even if a sanction were imposed, it should not be part of the Judgment. “THE COURT: I am not calling it a sanction. [¶] … [¶] “THE COURT: … But I think that Mercedes could ask for an offset against the amount that they owe on the Judgment or some amount which reflects 25,000 more miles use. I would certainly entertain that. “[PLAINTIFFS’ COUNSEL]: Well – “THE COURT: If they keep using it – “[PLAINTIFFS’ COUNSEL]: What are they suppose to do? They bought – they put all their money into their car, put $45,000.00 cash into this car. 9. “And when we get a Judgment, and Mercedes is suppose to give them back their $45,000 less a statutory offset … they don’t get paid their money. They don’t have money to buy another car. So do they – do they walk? “THE COURT: They have to – we can setup an escrow situation or whatever, but they have got to tender the car at or near the time that Mercedes has to pay the judgment. So – “[PLAINTIFFS’ COUNSEL]: But Mercedes was demanding that – maintained discretionary ability to determine what was reasonable use. “Now this – I have never seen that term in a Lemon Law. I have seen a lot of Lemon Law Judgments. “THE COURT: I am not purporting to suggest that. But what if they took the car and ran it over a cliff, you have got to have some reasonable return of the vehicle. Was it – “[PLAINTIFFS’ COUNSEL]: Get the insurance money. “[DEFENSE COUNSEL]: Subject to negotiations, but – “THE COURT: But the insurance money would have been a lot less on a 195,000 mile car that this would have been on a 170,000 mile car. “[PLAINTIFFS’ COUNSEL]: There’s nothing in the Lemon Law that limits how a purchaser can use a car. That’s the gist of the recent decisions. The decisions that have come down in the last couple of years. “THE COURT: I understand, but the whole point of our being here at this time 11 months post-trial is I am finding that Plaintiff’s at fault. They were – they did not even – they were never served a document called Notice of Entry of Judgment. I have looked in the file for it. “[PLAINTIFFS’ COUNSEL]: They weren’t – “THE COURT: And [defense counsel] never said that he received one. And so the first informal notice that they have is your September letter. “And then they have got to set their motion. And you don’t get the motion. You get a continuance because you are out of the office. 10. “You wait for [defense counsel]. We are here 11 months later and 25,000 miles later. I hate to lay it all on you, [plaintiffs’ counsel], but – “[PLAINTIFFS’ COUNSEL]: Okay. [¶] … [¶] “THE COURT: … Anyway I am not proposing to decide this today, but what I’m suggesting is that I will entertain a motion by Mercedes-Benz for some kind of offset against the $39,984.99 that they – so the judgment will reflect. “We have got to get together again. Now, they can stop all this by bringing the car into some designated Mercedes dealer. “[Defense counsel], you want the car? “[DEFENSE COUNSEL]: Well, I would still like the opportunity to make some post-trial motions. “THE COURT: Of course. [¶] … [¶] “THE COURT: They need a car. So we can have at such time as Mercedes decides it’s willing to pay the judgment, then we can set up some kind of procedure whereby there’s somebody standing there with a check, when they drive the car in. And – “[PLAINTIFFS’ COUNSEL]: That’s what is usually done. “THE COURT: Yes. Right. But in the meantime, if you do a motion for new trial, and the appeal, then I’m not – I’m going to toll the running of the mileage offset. “[DEFENSE COUNSEL]: That’s fine.” Following the January 30, 2006, hearing, MBUSA filed a motion for equitable offset. MBUSA presented no legal authority or legal argument in support of the motion. The only evidence presented in support of the motion was a declaration by defense counsel, which set forth the estimated additional mileage on the vehicle as 30,000 miles, and a method for calculating an offset of $13,130.51. Plaintiffs opposed the motion, arguing that the offset sought by MBUSA was precluded under the court’s reasoning in Jiagbogu, supra, 118 Cal.App.4th. 1235, and 11. that the only offset available to MBUSA was for its use of the vehicle prior to the first delivery for repair. MBUSA responded that Jiagbogu was distinguishable because, in this case, MBUSA was not claiming to be entitled to an offset for the use of the vehicle after the time it was first brought in for repair to the time of trial. Rather, “per invitation of [the trial court], [MBUSA] seeks only a further equitable mileage offset between March 1, 2005 and January 30, 2006, which represents a further delay due solely to the fault of plaintiffs and their legal counsel for failing to obtain an appropriate judgment in this case and serve it upon defendant.” As noted above, the April 6, 2006, hearing on the motion was not recorded. The court employed its own method for reaching an offset award of $7,014.48, and then amended the judgment to add the award plus a potential offset for future use. B. Analysis The parties do not dispute that there is no specific statutory basis for the offset awarded in this case. Plaintiffs argue that under the court’s reasoning in Jiagbogu, the offset for postverdict use violated the Song-Beverly Act, which allows an offset only for a buyer’s use of a vehicle before the first delivery for repair. MBUSA counters that the Song-Beverly Act and Jiagbogu are inapplicable: “The post-verdict offsets [in this case] … have nothing to do with the Song-Beverly Act. Those offsets are meant to address the wrongful conduct of counsel for Appellants after the Song-Beverly Act litigation had run its course and concluded in favor of Appellants.” MBUSA argues that in awarding an offset, the court was properly exercising its “broad power to fashion equitable remedies to address irregularities in the proceedings before it .…” MBUSA is correct that, generally speaking, “[t]rial courts have broad equitable power to fashion any appropriate remedies. [Citation.] In doing so, they may consider any unjust or harsh results, and adopt means to avoid them. [Citation.] ‘Equitable relief is by its nature flexible, and the maxim allowing a remedy for every wrong [citation] has 12. been invoked to justify the invention of new methods of relief for new types of wrongs. [Citation.]’” (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1552.) However, “‘“‘[r]ules of equity cannot be intruded in matters that are plain and fully covered by positive statute [citation]. Neither a fiction nor a maxim may nullify a statute [citation]. Nor will a court of equity ever lend its aid to accomplish by indirection what the law or its clearly defined policy forbids to be done directly [citation].’ [Citation.]” [Citation.]’” (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1368, fn. 5.) The Jiagbogu court’s analysis of the offset provision contained in the Song- Beverly Act is instructive on the question here of whether the trial court could properly invoke its equity powers to grant the offset requested by MBUSA for plaintiffs’ postverdict use of the vehicle: “The Act does not address ‘post-rescission’ offsets of the sort to which MBUSA claims to be entitled. But it does specifically provide for an offset in one situation: where the buyer uses a nonconforming vehicle before the vehicle is first delivered to the manufacturer for correction of the nonconformity. Section 1793.2, subdivision (d)(2)(C) provides, ‘When the manufacturer replaces the new motor vehicle ..., the buyer shall only be liable to pay the manufacturer an amount directly attributable to [the buyer’s use before first delivery for correction]. When restitution is made ..., the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to [the buyer’s use before first delivery for correction].’ The subdivision then sets out a formula for calculating the offset for use before first delivery. This situation does not fit the case before us, where the buyer used the vehicle after the manufacturer refused to replace it or buy it back. [¶] … [¶] “Section 1793.2, subdivision (d)(2)(C), and (d)(2)(A) and (B) to which it refers, comprehensively addresses replacement and restitution; specified predelivery offset; sales and use taxes; license, registration, or other fees; repair, towing, and rental costs; and other incidental damages. None contains any language authorizing an offset in any situation other than the one specified. This omission of other offsets from a set of provisions that thoroughly cover other relevant costs indicates legislative intent to exclude such offsets. [Citation.] 13. “This exclusion, far from being absurd as MBUSA argues, is in keeping with the Act’s overall purpose. The Act is intended to protect consumers and should be construed in keeping with that goal. [Citation.] Interpretations that would significantly vitiate a manufacturer’s incentive to comply with the Act should be avoided. [Citation.] As we have seen, the Act places an affirmative duty on the buyer to deliver a nonconforming product for repair, and an affirmative duty on the manufacturer to promptly replace the product or refund the purchase money if repairs are unsuccessful after a reasonable opportunity to repair. [Citations.] The predelivery offset creates an incentive for the buyer to deliver a car for repairs soon after a nonconformity is discovered. An offset for the buyer’s use of a car when a manufacturer, already obliged to replace or refund, refuses to do so, would create a disincentive to prompt replacement or restitution by forcing the buyer to bear all or part of the cost of the manufacturer’s delay. Exclusion of such offsets furthers the Act’s purpose.” (Jiagbogu, supra, 118 Cal.App.4th at pp. 1242-1244, italics added.) We recognize that the offset awarded to MBUSA in this case was requested on different grounds and for different time periods than the offset in Jiagbogu. However, the court’s statutory analysis is still pertinent. That a buyer would still have the vehicle in his or her possession at different stages of a lemon law action, including during posttrial proceedings, and incur additional mileage is a circumstance that was not unpredictable. By specifically including only one type of offset in its comprehensive, pro-consumer provisions, the Legislature evinced an intention to exclude other types of offsets in actions under the Song-Beverly Act. While we do not approve of plaintiffs’ failure to serve MBUSA with notice of entry of judgment, or plaintiffs’ counsel’s failure to stay in contact with defense counsel, under the principles set forth above, the trial court could not properly invoke its equity powers to award an offset for plaintiffs’ postverdict use where the relevant statute reflected a legislative intent to limit situations where an offset would be available to the manufacturer. Accordingly, the trial court’s award of an offset for plaintiffs’ postverdict use of the vehicle, including the potential offset for future use, and the corresponding provisions in the judgment, must be reversed. 14. However, even had the statute’s coverage of the offset available to the manufacturer not precluded the court from invoking its equity jurisdiction, we question whether MBUSA would be entitled to equitable relief under the circumstances. None of the authorities MBUSA cites on appeal supports a conclusion that the trial court could exercise its “broad power to fashion equitable remedies” simply to address plaintiffs’ failure to serve notice of entry of judgment, which, notwithstanding MBUSA’s assertion to the contrary, is the only “procedural irregularity” the trial court specifically found to have occurred in this case. Moreover, contrary to MBUSA’s suggestion, MBUSA was not denied the opportunity to challenge the judgment entered on March 28, 2005, including the erroneous attorney’s fee award. Each of the errors MBUSA perceived in the original judgment were raised to and addressed by the trial court, apparently to MBUSA’s satisfaction at the time. At oral argument, however, defense counsel attempted to raise the issue of attorney’s fees as a completely new basis justifying the offset award. We are of course not required to consider a matter raised for the first time at oral argument, and it may be deemed waived. (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6.) Nonetheless, we find no record support for defense counsel’s suggestion that MBUSA was deprived a full and fair opportunity to challenge plaintiffs’ claim to attorney’s fees. The issue of attorney’s fees and costs appears to have been duly litigated after the new judgment was entered on February 6, 2006, and MBUSA has not appealed the trial court’s April 3, 2006, order awarding attorney’s fees. Defense counsel’s assertion during oral argument highlights a more fundamental flaw in the overall theory advanced in support of MBUSA’s request for an equitable offset against plaintiffs’ judgment; that is the notion that conduct of plaintiffs’ counsel – as opposed to any wrongdoing on the part of plaintiffs – was sufficient to allow the trial court unfettered discretion to fashion an equitable remedy penalizing plaintiffs for the alleged misconduct of their attorney. No authority cited by counsel supports such a 15. theory. The remedy available to MBUSA was to seek sanctions against plaintiffs’ counsel. II. Return of the vehicle Plaintiffs do not challenge the provision requiring them to return the vehicle to MBUSA, acknowledging “[s]uch a requirement is implicit in a judgment awarding restitution [under the Song-Beverly Act] and thus making it explicit was merely correcting a clerical error and not changing the substantive rights of the parties.” However, they contend that the provision allowing MBUSA to designate, in writing, the dealership where the vehicle is to be returned and making the return of the vehicle and payment of the judgment concurrent, adversely affects their substantive rights, and, the trial court was thus without jurisdiction to add the provision in the guise of making a clerical correction to the original judgment under Code of Civil Procedure section 473. Plaintiffs argue that the provision affects their substantive rights because it conceivably allows MBUSA “to avoid enforcement of the judgment forever” by not designating a dealership or by designating a dealership that is geographically unfeasible. We find plaintiffs’ argument unconvincing. It is true that “[a]n amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. [Citations.].” (In re Candelario (1970) 3 Cal.3d 702, 705.) In our view, the complained-of provision does not substantially modify the original judgment or materially alter the rights of the parties but simply provides a means for giving effect to the requirement that plaintiffs return the vehicle to MBUSA, which plaintiffs do not dispute was properly added to the judgment. As such, it reflects a valid exercise of the trial court’s power to make necessary orders to enforce or give effect to its judgment. (See Code Civ. Proc., § 128.) If, as plaintiffs speculate, MBUSA fails to act reasonably or in good faith in complying with this provision, the proper arena to raise this issue will 16. be the trial court in enforcement proceedings. Contrary to plaintiffs’ suggestion, there is nothing in the language of the provision that precludes them from taking action to enforce the judgment if MBUSA tries to avoid satisfying the judgment by failing to designate a dealership or doing so in such a way to make impracticable the plaintiffs’ return of the vehicle. III. Postjudgment interest Finally, plaintiffs challenge the trial court’s failure to include in the judgment an award of postjudgment interest. MBUSA does dispute plaintiffs are entitled postjudgment interest as a matter of statute. The disagreement is essentially over when postjudgment interest began to accrue. Plaintiffs contend, on the one hand, that postjudgment interest began accruing on the date of the entry of the original judgment on March 28, 2005. On the other hand, MBUSA argues that postjudgment interest began accruing on the date of the entry of the final judgment on April 6, 2006, based on its argument, noted above in footnote 4, that the original judgment was void. For reasons discussed below, we conclude the issue of when postjudgment began to accrue is one more appropriately addressed by the trial court on remand. “A judgment need not expressly provide for postjudgment interest; by statute, interest at an annual rate of 10 percent generally accrues on the principal amount of every money judgment from the date of entry until the judgment is satisfied. [Citation.]” (Matthew Bender Practice Guide: Cal. Trial & Post-Trial Civil Procedure (2006) Entry of Judgment, § 26.18(5)(e).) Thus, Code of Civil Procedure section 685.010, subdivision (a) provides: “Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.” Code of Civil Procedure section 685.020, subdivision (a) provides: “Except as provided in subdivision (b), interest commences to accrue on a money judgment on the date of entry of the judgment.” Ordinarily, we would agree with plaintiffs’ position that they are entitled to postjudgment interest from the date of the entry of the original judgment on March 28, 17. 2005. (See e.g., Ehret v. Congoleum Corp. (2001) 87 Cal.App.4th 202 (Ehret) [plaintiffs entitled to postjudgment interest from date of original judgment on jury’s verdict, rather than from modified judgment following remittitur on defendant’s appeal]; see also Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 848 [“There can be no interest on a judgment prior to its rendition and entry”].) However, it appears from the parties’ discussion on the record during the January 30, 2006, hearing, that they agreed to treat the later corrected judgment as if it were the original judgment at least for certain purposes. During the hearing, the trial court asked the attorneys whether they accepted the trial court’s approach to treat the motion to vacate the judgment as a motion to correct clerical error and both attorneys indicated that they did. Plaintiffs’ counsel then asked whether this would extend the time for filing her motion for attorney’s fees and costs. The following pertinent discussion ensued: “THE COURT: What’s your position on that? “[DEFENSE COUNSEL]: I was of the impression if there had been a new judgment, then things would sort of start anew. “It wasn’t the intent to cut off anybody’s rights here. Just get it right. Let’s proceed from … there. “[PLAINTIFFS’ COUNSEL]: But, your Honor, indicated that you’re not vacating the judgment. Merely, correcting it. “THE COURT: Yes. “[PLAINTIFFS’ COUNSEL]: So we are treating that as a new judgment? “THE COURT: We can agree amongst ourselves to do that. “[PLAINTIFFS’ COUNSEL]: That’s fine.” Later in the hearing, the parties also appeared to agree that the time for the defense to file its posttrial motions would begin to run from the time of service by the clerk of copies of 18. the new judgment. However, it is not clear whether the parties’ apparent agreement to treat the corrected judgment as a new judgment also encompassed the issue of postjudgment interest as it was not expressly discussed. Because we cannot resolve on this record the issue of whether the parties intended to treat entry of the later judgment as if it were the entry of the original judgment for purposes of the accrual of postjudgment interest, we conclude that this is an issue better decided by the trial court on remand. Plaintiffs also claim to be entitled to an award of interest for the postverdict period preceding the entry of judgment. Plaintiffs rely on California Rules of Court, rule 8756 (“rule 875”), which provides: “The clerk must include in the judgment any interest awarded by the court and the interest accrued since the entry of the verdict.” In Ehret, supra, 87 Cal.App.4th 202, in noting the existence of a “technical variation in the language” of Code of Civil Procedure section 685.020 and rule 875, the Court of Appeal stated: “The former calls for postjudgment interest from the entry of the judgment, while the latter calls for interest from the entry of the verdict. The language of rule 875 follows the language of former [Code of Civil Procedure] section 1033, which called for interest from the date the verdict was rendered.” (Ehret, supra, 87 Cal.App.4th at p. 208, fn. 2.) However, the court in Ehret did not decide whether the statute or the rule controlled since the “difference in the two provisions” was “immaterial” given the fact that the verdict there was reached on one day and judgment on the verdict was entered the following day. (Ibid.) Here, we conclude Code of Civil Procedure section 685.020 prevails over rule 875. (Cal. Const., art. VI, § 6 [rules adopted by the Judicial Counsel “shall not be inconsistent with statute”].) Accordingly, plaintiffs are not entitled to interest during the period between the entry of verdict and entry of judgment. 6 Former rule 875 is now renumbered as rule 3.1802. 19. DISPOSITION The court’s order and the provision in the judgment awarding defendant MBUSA an offset of $7,014.48 for plaintiffs’ postverdict use of the vehicle plus an offset for future use is reversed, and the cause remanded with instructions to determine plaintiffs’ entitlement to, and make an award of, postjudgment interest. Otherwise, the judgment is affirmed. Plaintiffs shall recover costs on appeal but their motion for attorney’s fees is denied. _____________________ HILL, J. WE CONCUR: _____________________ CORNELL, Acting P.J. _____________________ DAWSON, J. 20.