Opinion
NOT TO BE PUBLISHED
Appeal from an amended judgment of the Superior Court of Orange County No. 30-2008-00104763, William M. Monroe, Judge.
James Toledano for Plaintiff and Appellant.
Brack & Mason, Lindsay R. Brack and Susan L. Mason for Defendant and Respondent.
OPINION
ARONSON, J.
A jury rejected plaintiff Mary Linda Galloway’s wrongful termination and disability discrimination claims against her former employer, defendant Gay & Lesbian Community Services Center of Orange County (Community Center). The trial court entered judgment on August 13, 2009, and later amended the judgment on September 30, 2009. Galloway filed her notice of appeal on February 18, 2010.
In April 2010, we ordered Galloway’s appeal from the original judgment dismissed because she failed to file her notice of appeal on time, but we allowed her appeal on the amended judgment to proceed. In this opinion, Galloway contends we may consider her untimely appeal from the original judgment. She also argues the trial court lacked authority to award costs in the amended judgment because our April dismissal order implicitly determined the original judgment was final. For the reasons stated below, we affirm.
I
Facts and Procedural History
Galloway sued her former employer, the Community Center, asserting several claims arising from the termination of her employment. A jury returned a verdict in the Community Center’s favor on all claims.
On August 13, 2009, the trial court entered judgment for the Community Center. The original judgment awarded the Community Center its costs, but left the specific amount for later determination. On September 30, 2009, the trial court entered an amended judgment adding the specific amount awarded as costs. In all other respects the amended judgment was identical to the original. Galloway filed a notice of appeal on February 18, 2010.
After reviewing Galloway’s civil case information statement, we invited the parties to file letter briefs addressing whether Galloway timely filed her appeal. In April 2010, after reviewing the letter briefs, we dismissed Galloway’s appeal from the original judgment because she filed the appeal more than 180 days after the trial court entered the original judgment. We explained Galloway’s time to appeal ran from entry of the original judgment because the amended judgment did not make any substantial change in the judgment. We allowed her appeal on the cost award in the amended judgment to proceed.
II
Discussion
A. Galloway Failed to Timely Appeal the Original Judgment
Despite our order dismissing her appeal from the original judgment, Galloway’s briefs focus almost exclusively on why we should treat her appeal as timely. Given we previously dismissed her appeal, Galloway’s only recourse was a motion to vacate the dismissal, rather than asking us in her opening brief to reconsider our prior order. (See, e.g., Mattz v. Superior Court (1988) 46 Cal.3d 355, 360-361 [acknowledging appellate court’s authority to grant motion vacating dismissal and reinstating appeal]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 5:50, p. 5-21 (rev. # 1, 2010).)
Regardless, it is clear Galloway failed to timely appeal the original judgment, and we therefore lack jurisdiction to hear her appeal. “Compliance with the time for filing a notice of appeal is mandatory and jurisdictional.” (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582 (Laraway).) If a notice of appeal is not timely, the appellate court “must dismiss the appeal.” (Cal. Rules of Court, rule 8.104(b), italics added; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 (Hollister).)
The latest possible time for filing a notice of appeal is 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a); Laraway, supra, 98 Cal.App.4th at p. 582.) Here, the trial court entered the original judgment on August 13, 2009, and therefore Galloway had to file her notice of appeal not later than February 9, 2010. Unfortunately, she waited until February 18, 2010.
The trial court’s amended judgment did not restart the clock for Galloway because the amended judgment did not make a “‘substantial modification’” in the original judgment. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222, original italics (Torres); Laraway, supra, 98 Cal.App.4th at p. 583.) An amended judgment adding costs, attorney fees, or interest does not constitute a “‘substantial modification.’” (Torres, at p. 222, original italics.) Here, the amended judgment did nothing more than specify the cost amount awarded to the Community Center.
Galloway argues we may consider her appeal timely if we treat the amended judgment as a nonappealable order, and then construe her notice of appeal from that order as encompassing the original judgment. There are several intermediate steps along the path to Galloway’s conclusion, but it comes down to one basic contention: If an appellant timely files a notice of appeal on a nonappealable, postjudgment order, “a reviewing court should construe [the] notice of appeal... to be an appeal from the underlying judgment when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced.” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22 (Walker).) Galloway, however, misapplies the governing authorities.
Although appellate courts have authority to construe a notice of appeal from a nonappealable order as appealing a separate, appealable judgment, this rule relates to the substance of the notice — that is, how it describes the order or judgment from which it appeals — not its timeliness. (See, e.g., Walker, supra, 35 Cal.4th at p. 19 [“Where, as here, the sole notice of appeal is from the order denying a new trial, most courts have allowed the appeal to go forward by construing the notice to encompass the underlying judgment”]; Vibert v. Berger (1966) 64 Cal.2d 65, 67-69 (Vibert) [treating a notice of appeal from an order sustaining a demurrer without leave to amend as appealing the judgment of dismissal thereafter entered].)
In Hollister, the Supreme Court acknowledged reviewing courts should liberally construe a notice of appeal, but emphasized the notice must be timely as to the appealable judgment or order to which it is ultimately applied: “While applying principles of construction and interpretation in a manner consistent with the policy... of granting the right of appeal in doubtful cases, we have steadfastly adhered to the fundamental precept that the timely filing of an appropriate notice of appeal or its equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.” (Hollister, supra, 15 Cal.3d at pp. 669-670.) For example, the Hollister court recognized the Vibert decision cited by Galloway “is simply one example of the application of the general and well-established rule that a notice of appeal which specifies a nonappealable order but is timely with respect to an existing appealable order or judgment will be construed to apply to the latter judgment or order.” (Hollister, supra, 15 Cal.3d at p. 669, original italics.)
Galloway argues the Walker court applied this rule to save an untimely appeal, but she misreads that decision. In Walker, a plaintiff who lost at trial filed a new trial motion and a motion for judgment notwithstanding the verdict. After the trial court denied these motions, the plaintiff filed a notice of appeal from the order denying the new trial motion, but not the underlying judgment. (Walker, supra, 35 Cal.4th at p. 18.) The Court of Appeal dismissed the appeal because an order denying a new trial motion is not an appealable order. The Supreme Court reversed, explaining that the notice of appeal from the order denying the new trial motion encompassed the underlying judgment. (Id. at pp. 22-23.) The Walker decision, however, did not discuss the appeal’s timeliness.
Nonetheless, according to Galloway, the plaintiff in Walker failed to timely file her notice of appeal because the plaintiff filed it more than 60 days after the defendant served notice of entry of judgment and more than 30 days after the trial court denied the new trial motion. Galloway, however, fails to recognize two important rules for calculating the time to appeal. First, although a notice of appeal ordinarily must be filed within 60 days after any party serves notice of entry of judgment, that period is extended when a party files a motion for new trial. Specifically, as applicable in Walker, the time to appeal is extended until 30 days after the trial court denies the new trial motion. (Cal. Rules of Court, rule 8.108(b)(1)(A).) Second, when the final day to file a notice of appeal falls on a weekend or other court holiday, the time to file the notice is extended to the next court day. (Shufelt v. Hall (2008) 163 Cal.App.4th 1020, 1022, fn. 2; Estate of Drummond (2007) 149 Cal.App.4th 46, 50, fn. 1.)
In Walker, the 30th day after the trial court denied the new trial motion was February 2, 2002, which Galloway admits fell on a Saturday. The deadline to file the notice of appeal therefore carried over until Monday, February 4, 2002 — the date the plaintiff filed her notice of appeal. Thus, contrary to Galloway’s contention, the Walker court did not construe a notice of appeal in a manner that allowed an untimely appeal to proceed. Rather, it merely construed a notice of appeal that referred to a nonappealable order as referring to the underlying, appealable judgment.
Moreover, on our own motion, we take judicial notice of the fact February 2, 2002 fell on a Saturday. (Evid. Code, §§ 459, subd. (a), 452, subds. (g) & (h).)
Galloway also argues we should treat her appeal as timely because the trial court clerk failed to perform her ministerial duty to enter the costs on the original judgment, and instead directed the Community Center to submit the amended judgment specifying the cost amount. (See Cal. Rules of Court, rule 3.1700(b)(4) [“After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment”].) Galloway, however, fails to explain how the clerk’s failure to perform that duty extended her time to appeal. To the contrary, Galloway concedes (1) she filed her notice of appeal more than 180 days after the trial court entered the original judgment; (2) the amended judgment made no substantial change to the original judgment; and (3) an amended judgment that makes no substantial modification in the judgment does not restart the time to appeal. As stated above, the time to appeal is mandatory and jurisdictional. (Laraway, supra, 98 Cal.App.4th at p. 582.) There is nothing the trial court can do to extend or restart that time period. (See Kimball Avenue v. Franco (2008) 162 Cal.App.4th 1224, 1226.)
The burden fell on Galloway to review both the original and amended judgment and ensure she timely filed her notice of appeal following the foregoing, well established standards. She failed to do so, which demonstrates why we were compelled to dismiss Galloway’s appeal from the original judgment.
B. The Community Center’s Cost Award Is Enforceable
Turning to the cost award, Galloway does not challenge any particular cost item, and concedes the Community Center’s right to recover costs as the prevailing party. Moreover, she waived the right to assert any challenge to the Community Center’s costs because she failed to file a motion to tax or strike the costs in the trial court. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) Having failed to challenge the Community Center’s costs in the trial court, Galloway cannot now attack them on appeal. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.)
She nonetheless argues the Community Center cannot enforce the trial court’s cost award. Galloway contends the amended judgment, which is the only purported judgment or order awarding specific costs, cannot be enforced as either a judgment or an order. According to Galloway, by deciding her time to appeal ran from entry of the original judgment, we determined the original judgment is the “one final judgment” in this action. Galloway also argues the amended judgment cannot be enforced as an order awarding costs because neither the Community Center nor Galloway “‘applied’” or “moved” for an order fixing the amount of costs, and the trial court did not enter any “order” to that effect. Neither contention has any merit.
The fact the original judgment is the final judgment in this action for appellate purposes does not make the cost award in the amended judgment unenforceable. Trial courts routinely amend or modify judgments to add the specific amount of costs, attorney fees, and interest awarded when the amount is determined by a motion or other postjudgment procedure. (See, e.g., Torres, supra, 154 Cal.App.4th at p. 222; Guseinov v. Burns (2006) 145 Cal.App.4th 944, 951 (Guseinov); Amwest Surety Ins. Co. v. Patriot Homes, Inc. (2005) 135 Cal.App.4th 82, 84, fn. 1 (Amwest Surety); Irving Nelkin & Co. v. South Beverly Hills Wilshire Jewelry & Loan (2005) 129 Cal.App.4th 692, 699.)
In those instances, the original judgment remains the one final judgment in the action and the time to appeal runs from entry of the original judgment. (Guseinov, supra, 145 Cal.App.4th at p. 951; Amwest Surety, supra, 135 Cal.App.4th at p. 84, fn. 1.) The reason is straightforward: amending a judgment to insert a cost, attorney fee, or interest award does not constitute a substantial change in the judgment. (Torres, supra, 154 Cal.App.4th at p. 222) Thus, the original judgment remains the judgment that resolves the parties’ dispute (Amwest Surety, supra, 135 Cal.App.4th at p. 84, fn. 1) and costs, attorney fees, and interest are merely an incident to that judgment and do not affect its substance (Behniwal v. Mix (2007) 147 Cal.App.4th 621, 626, quoting Dennis v. Overholtzer (1961) 191 Cal.App.2d 791, 797 [“‘It has been repeatedly held that the allowance of costs is a mere incident of the judgment on the merits.’ [Citation.]”]). Indeed, although an appeal prevents the trial court from making any order affecting the appealed judgment’s merits, the trial court nonetheless may award costs, attorney fees, and interest while the appeal is pending because those matters are collateral to the judgment. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369 [“an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken”].)
Here, Galloway acknowledges the original judgment awarded the Community Center its costs and merely left the amount for later determination. She also concedes the original and amended judgments are identical but for the amended judgment inserting the specific cost amount. Galloway provides no reason why including the amount of the cost award in an “amended judgment” — rather than entering the amount on the original judgment — renders the award unenforceable. Nothing in the foregoing procedures supports that conclusion.
Galloway also is incorrect that the amended judgment cannot be construed as a postjudgment order fixing the amount of costs. Contrary to Galloway’s contention, the Community Center asked the trial court for an order awarding costs. Specifically, the Community Center followed the established procedure for requesting costs by filing and serving its cost memorandum. (Code Civ. Proc., § 1034, subd. (a); Cal. Rules of Court, rule 3.1700(a)(1).) After Galloway failed to file a motion to strike or tax the Community Center’s costs within the allotted time, the trial judge signed and entered the “amended judgment” fixing the Community Center’s costs.
In dismissing Galloway’s appeal from the original judgment, we construed the amended judgment as a separately appealable, postjudgment order setting the amount of costs. (Torres, supra, 154 Cal.App.4th at p. 222.) Moreover, as explained above, appellate courts liberally construe a notice of appeal’s content to preserve the right of appeal to the extent possible. (See, e.g., Hollister, supra, 15 Cal.3d at pp. 669-670.) “‘Thus, notices of appeal referring to an “order” have been interpreted to apply to a “judgment, ” and those referring to a “judgment” to apply to an “order, ” “so as to protect the right of appeal....”’” (Walker, supra, 35 Cal.4th at p. 20, quoting Vibert, supra, 64 Cal.2d at pp. 67-68.) In Laraway, the appellate court specifically construed a “‘judgment’” as a postjudgment order fixing costs. (Laraway, supra, 98 Cal.App.4th at p. 583, fn. 6 [“we necessarily regard such ‘judgment’ as nothing more than a postjudgment order determining respondent’s right to recover costs”].) Consequently, we treated the amended judgment as a postjudgment order fixing costs.
In sum, Galloway waived any challenge to the Community Center’s costs and failed to establish any reason the Community Center cannot enforce the trial court’s cost award in the amended judgment.
III
Disposition
The amended judgment’s cost award is affirmed. The Community Center shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.