4
(1) If the motion for a new trial is denied, the time to appeal from the judgment is
extended for all parties until the earliest of: [¶] (A) 30 days after the superior court clerk
or a party serves an order denying the motion or a notice of entry of that order (rule
8.108, subd. (b)(1)(A)); [¶] (B) 30 days after denial of the motion by operation of law
(id., subd. (b)(1)(B)).” Thus, the time to appeal expired on July 30.
On June 30, Judge Bergeron also entered a new judgment that restated the denial
of the motion for new trial and awarded the Hjelms attorney fees.
Prometheus filed its notice of appeal August 11. That appeal was timely to attack
the attorney fee award. But not the verdict. And Judge Bergeron’s second judgment
does not help Prometheus.
Torres v. City of San Diego (2007) 154 Cal.App.4th 214 (Torres) is on point. And
dispositive. There, city retirement board members obtained summary judgment on their
claims the city had to pay for their defense in an action against them filed by the city
attorney. The city filed a late notice of appeal, and the Court of Appeal dismissed it. The
trial court later issued an order awarding attorney fees. The city appealed again, which
appeal included an attack on the summary judgment. The Court of Appeal dismissed the
appeal to the extent it concerned the summary judgment. Discussing the effect of a
second judgment, the court began by noting that “ ‘The effect of an amended judgment
on the appeal time period depends on whether the amendment substantially changes the
judgment or, instead, simply corrects a clerical error.’ ” (Id. at p. 222, quoting Eisenberg
et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56, pp.
3-24 to 3-25.) And the court concluded, “It is well settled, however, that ‘[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.’ ” (Ibid.; accord, Laraway v. Pasadena Unified School Dist. (2002)
98 Cal.App.4th 579, 583.)
Dakota Payphone, LLC v. Alcarez (2011) 192 Cal.App.4th 493, 504–505,
discusses Torres and its holding at length: