San Diego Innovation Center v. Skyriver Communications CA4/1

Filed 8/25/23 San Diego Innovation Center v. Skyriver Communications CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO INNOVATION CENTER, D080972
LLC,
Plaintiff, Cross-defendant and
Respondent,
v. (Super. Ct. No. 37-2020-0027901-
CU-BC-CTL)
SKYRIVER COMMUNICATIONS,
INC.,
Defendant, Cross-complainant
and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Keri G. Katz, Judge. Dismissed.
Esensten Law, Robert Lawrence Esensten, and Randi R. Geffner for
Defendant, Cross-complainant and Appellant.
Kimball, Tirey & St. John LLP and David Charles Williamson for
Plaintiff, Cross-defendant and Respondent.
Failure to file a timely notice of appeal is jurisdictional, mandating
dismissal. In this landlord-tenant dispute over unpaid rent during the
COVID-19 pandemic, the trial court entered judgment for the landlord
following a bench trial. The tenant did not appeal within 60 days of being
served with a notice of entry of the judgment. (Cal. Rules of Court, rule
8.104(a)(1).) A later amended judgment adding attorney’s fees did not
substantially change the judgment to affect the deadline to appeal. (Torres v.
City of San Diego (2007) 154 Cal.App.4th 214, 221 (Torres).) Because this
appeal is untimely, we lack jurisdiction to consider its merits and accordingly
must dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Skyriver Communications, Inc. (Skyriver) leased a commercial property
from San Diego Innovation Center (SDIC). The multi-year lease was set to
end in July 2021. Early in the COVID-19 pandemic, Skyriver vacated the
premises and stopped paying rent. SDIC sued for breach of the lease
agreement to recover unpaid rent and related expenses through the end of
the lease term. Skyriver asserted various affirmative defenses in its answer
and cross-complained for breach of contract, fraud, and tortious interference
with contractual relations.
The parties appeared before Judge Katz for a four-day bench trial on
the complaint and cross-complaint. On March 9, 2022, Judge Katz issued a
final statement of decision resolving contested issues in SDIC’s favor and
directing SDIC to prepare a proposed judgment. The court thereafter entered
judgment on March 29 for SDIC on its complaint, awarding “damages in the
amount of $486,489.55, plus costs and fees according to proof.” Judgment
was also entered in favor of SDIC on Skyriver’s cross-complaint. SDIC served
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notice of entry of judgment on Skyriver on April 8. By interlineation, the
trial court subsequently amended the judgment on April 27 to award SDIC
$1,479 in costs.
SDIC filed a postjudgment motion in May seeking to recover
contractual attorney’s fees pursuant to the terms of the parties’ lease. (See
Civ. Code, § 1717.) Skyriver challenged the amount requested but not SDIC’s
entitlement to fees. On August 5, 2022, the trial court granted SDIC’s
motion, awarding $62,821 in attorney’s fees. It directed the clerk to
interlineate the judgment to reflect the fee award. After a formal order
issued on August 15, the March 29 judgment was amended with handwritten
notation awarding SDIC $62,821 in attorney’s fees.
Skyriver filed a notice of appeal on September 14. It indicated it was
appealing a “Judgment entered on 3/29/22 as modified and amended by the
Order filed 8/15/22.” Skyriver’s appeal focuses on merits rulings underlying
the original judgment, not the attorney’s fee award.
DISCUSSION
Generally speaking, an appeal must be filed within 60 days after the
appellant is served with a notice of entry of judgment or a file-stamped copy
of the judgment, or within 180 days after entry of judgment, whichever occurs
earlier. (Cal Rules of Court, rule 8.104(a)(1).) This deadline is jurisdictional;
once it expires, an appellate court loses power to consider the appeal.
(Marshall v. Webster (2020) 54 Cal.App.5th 275, 279.) “Jurisdictional time
limits for appealable orders may not be extended by estoppel, consent,
waiver, agreement or acquiescence.” (Reyes v. Kruger (2020) 55 Cal.App.5th
58, 70.) “If a notice of appeal is filed late, the reviewing court must dismiss
the appeal.” (Cal. Rules of Court, rule 8.104(b).)
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Where a judgment is later amended, the question becomes whether the
amendment resulted in a “substantial modification” of the judgment—i.e.,
whether it materially affects the rights of the parties. (Ellis v. Ellis (2015)
235 Cal.App.4th 837, 842; Dakota Payphone (2011) 192 Cal.App.4th 493,
504.) If it does, then the amended judgment supersedes the original to
become the final, appealable judgment for purposes of calculating the appeal
deadline. Otherwise, “any changes are considered to relate back to the
original judgment and the time to appeal runs from the entry of the first
judgment.” (Ellis, at p. 842.)
Here, the question is whether the August 15 amended judgment
substantially modified the March 29 judgment by interlineating the award of
attorney’s fees. Under this court’s prior ruling in Torres, the answer is
plainly no: “ ‘[W]here the judgment is modified merely to add costs,
attorney’s fees and interest, the original judgment is not substantially
changed and the time to appeal it is therefore not affected.’ ” (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.’ ” (Ibid.)
Torres reached this conclusion on analogous facts. Judgment was
entered in plaintiffs’ favor on summary judgment, with the court leaving
blanks for the amount of statutorily recoverable attorney’s fees. (Torres,
supra, 154 Cal.App.4th at pp. 219−220.) The defendant City did not timely
appeal the judgment; instead, it appealed following a postjudgment order
fixing the amount of attorney’s fees, seeking to raise arguments about both
the underlying summary judgment ruling and the order on attorney’s fees.
(Id. at pp. 220−221.) We held that “the addition to the judgment of attorney
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fees and costs awarded in a postjudgment order does not constitute a
substantial change in the judgment for purposes of the notice of appeal
deadline.” (Id. at p. 223.) Though the legal basis for a fee award was
contested, that dispute had “nothing to do with the propriety of the
underlying summary judgment.” (Ibid.) Accordingly, we dismissed issues
relating to the underlying judgment and focused solely on the postjudgment
award of attorney’s fees. (Id. at p. 222; see also Hjelm v. Prometheus Real
Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1163 [losing party in landlord-
tenant lease dispute failed to timely appeal judgment following a jury trial;
appeal not saved by amended judgment awarding statutory attorney’s fees].)
The original judgment in this case was entered on March 29, 2022.
Skyriver was served with the notice of entry of judgment on April 8. It filed a
notice of appeal on September 14, seeking to challenge the liability
determination. But because the appeal was filed more than 60 days after
service of the notice of entry of judgment, it was untimely. (Cal. Rules of
Court, rule 8.104(a)(1)(B).) The August 15 amended judgment adding
attorney’s fees did not substantially change the judgment such that it reset
the deadline to appeal. Pursuant to Torres, Skyriver’s appeal is untimely and
must be dismissed.
That the defendant in Torres challenged only the basis for fees and not
their amount whereas the opposite occurred here does not change the result.
Whatever the nature of the fee dispute in the trial court—entitlement,
amount, or both—it has no bearing on whether the postjudgment fee order
substantially changes the judgment. (See Torres, supra, 154 Cal.App.4th at
p. 223.) As we explained in Torres, “The legal basis for a fee award . . . is
reviewed in the appeal from the order awarding fees; it does not resurrect a
stale appeal of the judgment.” (Ibid.)
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Nor did Torres articulate a general preference rather than a
“mandatory procedure” for filing separate appeals from the judgment and
postjudgment attorney’s fee order. To the contrary, on similar facts we held
that we lacked jurisdiction to consider issues related to the underlying
judgment. We follow the same course here.1
As Skyriver’s case authority makes clear, “Not every alteration of a
judgment by the court which rendered it will operate as a readjudication of
the case.” (George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478,
481.) “[I]f a party can obtain the desired relief from the judgment before it is
amended, he must act—appeal therefrom—within the time allowed after its
entry.” (Ibid.) Skyriver’s failure to do so leaves us without jurisdiction to
entertain its appeal.
1 For the first time at oral argument, Skyriver cited Rosen v.
LegacyQuest (2014) 225 Cal.App.4th 375 to suggest its appeal was timely
filed. In Rosen, a postjudgment motion requested both attorney’s fees and
costs. The court denied fees in a written order and amended that order four
months later to grant costs. (Id. at p. 379.) The appeal of the fee ruling was
timely taken from the amended order because the initial order did not fully
dispose of the issues raised in the motion. (Id. at p. 380.) Rosen stands for
the proposition that appeal from a ruling on a postjudgment motion lies from
the final order resolving all issues raised in that motion. It does not change
our conclusion in Torres that an amended judgment merely adding attorney’s
fees and costs does not reset the deadline to appeal the merits of the
judgment.
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DISPOSITION
The appeal is dismissed. SDIC is entitled to its costs on appeal.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
BUCHANAN, J.
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