Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later.
But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023 WL 369440 (nonpub. opn.). By the time the costs were awarded, the deadline to appeal had run. So the appellant’s appeal was dismissed.
The plaintiff-employee in this case sued his employer. The employer won summary judgment. The judgment was entered on March 11, 2019, and the employer served a notice of entry on March 15. That started the 60-day clock to appeal.
But it looks like the plaintiff got distracted by the employer’s claim for costs. That did not get sorted until October. At that time, the clerk handwrote onto the judgment the amount of costs, noting the date of the award, October 28.
The plaintiff appealed in December, within 60 days of the addition of costs to the judgment.
But December was well more than 60 days after the notice of entry, and even more than 180 after the judgment, both dating back to March. (Plaintiff’s counsel claimed she never received the notice of entry.)
The plaintiff argued that the time to appeal did not begin to run until the trial court added costs to the judgment in October. But as the court noted, “Established authority is to the contrary.”
Here is the authority to bookmark for this:
It is well settled that “ ‘[t]he effect of an amended judgment on the appeal time period depends on whether the amendment substantially changes the judgment ....’ ” (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) “ ‘Where the judgment is modified merely to add costs ..., the original judgment is not substantially changed and the time to appeal it is therefore not affected.’ ” (Ibid.; see also, Amwest Sur. Ins. Co. Patriot Homes, Inc. (2005) 135 Cal.App.4th 82, 84, fn. 1.)
The plaintiff cried foul that the lengthy posttrial proceedings caused him to file his appeal late. But the court was not moved: “Worsnop, had he been so inclined, could have appealed from both the final judgment and any postjudgment cost order. (Torres v. City of San Diego, supra, 154 Cal.App.4th at p. 222 [“ ‘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’ ”].) Thus, any delay in resolving the cost proceedings did not affect his ability to timely appeal the judgment.”
The court concluded: “While Worsnop's circumstances may be unfortunate, he is not excused from timely filing a notice of appeal before pursuing his claims on appeal. Because he failed to do so, we must dismiss his appeal. (Rule 8.104(b).)”
In May 2022, I covered the Second District case of Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), involving a similar situation. The court considered an appeal filed a full 10 months after the judgment. That was certainly well past the outer deadline of 180 days. To avoid getting the appeal dismissed as untimely, the appellant argued that the appeal was filed within 60 days after the judgment had been amended to add costs.
The respondent moved to dismiss the appeal, presumably based on the same principles cited in Worsnop—an amendment that merely adds costs does not resurrect the time to appeal.
But the Second District not only denied the motion to dismiss, but shot back at the respondent: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That was the entirety of the analysis on the issue.
The Pelter decision was wrong. The Worsnop opinion is right.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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