Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a postjudgment order of the Superior Court of Orange County, James P. Gray, Judge. Appeal dismissed. Super. Ct. No. 05CC09179
David Fink, in pro. per., for Plaintiff and Appellant.
Prenovost, Normandin, Bergh & Dawe, Michael G. Dawe and Kristin F. Godeke for Defendants and Respondents.
OPINION
IKOLA, J.
Plaintiff David Fink appeals from a postjudgment order awarding defendants Warren and Kimberly Kirwin attorney fees of $12,500. Plaintiff’s notice of appeal was untimely. Accordingly, we lack jurisdiction to consider plaintiff’s appeal. The appeal is dismissed.
PROCEDURAL BACKGROUND
The court entered judgment for defendant on January 9, 2007. Although ordinary costs were awarded to defendants in an amount to be determined, and the judgment referenced earlier awards of monetary sanctions against plaintiff, the judgment did not award attorney fees. On May 22, after an unsuccessful motion for new trial, plaintiff filed a notice of appeal from the January 9 judgment. Plaintiff’s notice of appeal stated: “Plaintiff . . . appeals the superior court’s judgment after trial in this case (and Plaintiff thereby appeals the orders rendered on June 23rd and 29th, October 2nd and 24th and December 18th, of 2006).” We dismissed this appeal as untimely in a nonpublished opinion. (Fink v. Kirwin (Jan. 11, 2008, G038711) [nonpub. opn.].)
Meanwhile, on January 23, 2007, defendants filed a motion for an award of attorney fees pursuant to Civil Code section 1717. The court granted the motion and entered a separate order on February 22 awarding defendants attorney fees of $12,500. The court entered a separate signed order awarding these fees on March 19. The parties tell us that defendants served notice of entry of this order on August 30, 2007, although a copy of such a notice was not included in the record on appeal. On October 9, 2007, plaintiff filed a notice of appeal with respect to the order awarding attorney fees. The notice of appeal states: “Plaintiff hereby . . . appeals the superior court’s March 19, 2007 $16,473.00 [sic] money judgment.”
DISCUSSION
Plaintiff’s first notice of appeal, filed on May 22, 2007, did not perfect an appeal from the attorney fee award because it did not specify that appeal was taken from the March 19, 2007 order awarding attorney fees. Rather, that notice of appeal was taken from the “judgment after trial” and several prejudgment orders. The “judgment after trial” did not adjudicate defendant’s entitlement to an award of attorney fees. (See DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43-44 [award of “costs” without more does not include an adjudication of an entitlement to an award of attorney fees].) “‘[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified — in either a single notice of appeal or multiple notices of appeal — in order to be reviewable on appeal.’” (Id. at p. 43; see also Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) Moreover, plaintiff did not argue the merits of the fee award in his prior appeal, and, in any event, that appeal was dismissed as untimely. The order awarding fees was, however, separately appealable as an order made after judgment. (Code Civ., Proc., § 904.1, subd. (a)(2).) But the notice of appeal as to that order was untimely.
Rule 8.104(a) of the California Rules of Court specifies that a notice of appeal must be filed on or before the earliest of (1) 60 days after the clerk of the court mails a “Notice of Entry” of judgment, (2) 60 days after a party serves a “Notice of Entry” of judgment; or (3) 180 days after entry of judgment. Here, the earliest of these alternate dates was September 17, 2007. Plaintiff’s notice of appeal, filed on October 9, 2007, was 22 days late. “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Cal. Rules of Court, rule 8.104(b); City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 818-819 [court of appeal had no jurisdiction to consider late-filed appeal].) Accordingly, we lack jurisdiction to hear plaintiff’s appeal.
The 180th day after the order was filed fell on September 15, 2007, a Saturday. Thus, the latest date to appeal the order fell on the following Monday, September 17, 2007.
DISPOSITION
The appeal is dismissed as untimely. Defendants shall recover their costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.