Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BC346308, Conrad R. Aragon, Judge.
Joel A. Spivak for Plaintiffs and Appellants.
Paul Sowa for Defendant and Respondent.
MANELLA, J.
Appellants Logisticorp, and Southwest Resource Preservation, Inc., challenge the grant of summary judgment in favor of respondent Calypte Biomedical Corporation. The trial court filed a judgment following summary judgment, and later filed a second judgment that incorporated an award of attorney fees and costs. We conclude that appellants’ notice of appeal was untimely with respect to the first judgment, and dismiss their appeal to the extent that they challenge it. Because appellants have raised no independent issues on appeal with respect to the fees and costs awarded in the second judgment, we affirm the second judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 24, 2006, appellants filed their complaint for fraud, breach of contract, and violations of Corporation Code section 25401 against respondent. After the trial court sustained demurrers to the claims for fraud and violations of the Corporations Code, respondent obtained summary judgment on the remaining claim for breach of contract. On February 7, 2007, the trial court filed a judgment in respondent’s favor on appellants’ complaint. The judgment included the following provision: “[Respondent] shall recover from [appellants] its costs and attorneys’ fees in the amount of $______.” On the same date, the superior court clerk mailed to the parties a copy of a two-page minute order regarding the judgment. On the first page, below the caption, “NATURE OF PROCEEDINGS,” the minute order stated: “NOTICE OF ENTRY OF JUDGMENT [¶] You are hereby given notice that Judgment was filed and entered on February 7, 2007. Copy is enclosed.” The minute order also certified that the clerk had mailed the minute order on that date.
On April 17, 2007, the trial court filed an amended judgment that awarded respondents $103,918.80 in attorney fees and $2,385.60 in costs, but made no other change to the prior judgment. On the same date, the superior court clerk mailed a notice of entry of the amended judgment, which resembled the notice regarding the February 7, 2007 judgment. On June 15, 2007, appellants filed their sole notice of appeal, which states that their appeal is from “the Notice of Entry of Judgment dated April 17, 2007.”
DISCUSSION
A. Timeliness of Appeal
Appellants’ contentions on appeal concern the trial court’s rulings in connection with the grant of summary judgment on appellants’ claim for breach of contract. At the threshold, we must determine the extent to which we have jurisdiction to hear the appeal. “‘If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.’ [Citations.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) A judgment is final and appealable if all that remains is a determination of costs and attorneys’ fees. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 221-224; P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053-1055; UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028, 1036.) Moreover, “[a] postjudgment order which awards or denies costs or attorney’s fees is separately appealable. [Citations.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at p. 46.)
Thus “‘[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.’ [Citations.] ‘When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.’ [Citation.]” (Torres v. City of San Diego, supra, 154 Cal.App.4th at p. 222.)
In view of these principles, the judgment entered February 7, 2007, was appealable. Because the clerk mailed a notice of entry of the judgment on the same date, appellants were obliged to notice their appeal from the judgment within a 60-day period ending on April 9, 2007, yet no notice of appeal was filed until June 15, 2007. (Cal. Rules of Court, rule 8.104(a).) The notice of appeal was thus untimely with respect to the February 7 judgment. (Adaimy v. Ruhl (2008) 160 Cal.App.4th 583, 586; Cal. Rules of Court, rule 8.104(a).) In contrast, the notice of appeal was timely with respect to the April 17 judgment. Accordingly, we dismiss appellants’ appeal to the extent it is taken from the February 7 judgment.
Pointing to CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1047-1049, appellants contend that the February 7 judgment was not appealable because the judgment entered on April 17, 2007, materially amended the February 7 judgment. We disagree. In CC-California Plaza Associates, the court granted nonsuit on the plaintiff’s complaint and entered a judgment that misidentified the losing party. After the plaintiff filed an untimely notice of appeal regarding the judgment, the trial court entered a second judgment that corrected the error. (Id. at pp. 1047-1049.) The appellate court concluded that the notice of appeal (though premature with respect to the second judgment) preserved the plaintiff’s right to challenge the nonsuit, as the second judgment materially modified the form of the judgment on the plaintiff’s complaint. (Ibid. [“[W]e cannot imagine a more substantial or material change in the form of a judgment than in the identity of the losing party.”].) Here, as appellants acknowledge, the only material difference between the judgments resides in the determination of the award of attorney fees and costs.
Rule 8.104(a) of the California Rules of Court provides in pertinent part: “[A] notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed.”
B. Award Of Attorney Fees and Costs
As explained above, our jurisdiction is limited to a review of the award of attorney fees and costs in the April 17 judgment. The award is predicated on respondent’s status as prevailing party under the February 7 judgment, which is now final; moreover, appellants’ opening brief focuses exclusively on the rulings in connection with the grant of summary judgment, and raises no separate challenge to the award. Because appellants have forfeited any challenge to the award, we affirm the April 17 judgment. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
DISPOSITION
The judgment entered April 17, 2007 is affirmed. To the extent the appeal is taken from the judgment entered February 7, 2007, it is dismissed. Respondent is awarded its costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.