Filing a timely notice of appeal is probably the most important step in the appellate process. That is because the deadline for doing so is “jurisdictional”—meaning that, in civil cases in California state courts, neither the parties nor the trial court have the power to extend it. It is therefore incumbent upon a would-be appellant to calculate the deadline with absolute accuracy, since courts cannot grant relief to those who miss the deadline, even by a day, and even for the most sympathetic of reasons.
Sometimes, when a trial court enters a judgment, it leaves issues unresolved or makes a mistake in the judgment, and later enters an amended judgment that ties up the loose ends or corrects the error. In such instances, does a timely appeal solely from the amended judgment permit the appellant to raise issues that the original judgment encompasses? The answer is, “it depends.”
The answer is “no” when a trial court, having left open how much to award in attorneys’ fees, costs, and interest, enters an amended judgment that resolves those issues. The courts typically hold that orders awarding such sums are collateral to the original judgment such that an appeal solely from an amended judgment incorporating those sums does not permit review of the original judgment. Torres v. City of San Diego, 154 Cal.App.4th 214, 222-23 (2007). Similarly, an appeal solely from the original judgment does not permit review of an amended judgment that has added fees and costs. Robinson v. City of Yucaipa, 28 Cal.App.4th 1506, 1517-18 (1994). These cases “make[ ] sense” since “[a]ny problem the parties might have with the amendment can be pursued through a separate appeal of the postjudgment order.” Dakota Payphone, LLC v. Alcaraz, 192 Cal.App.4th 493, 505 (2011).
In other cases, the courts inquire whether the amended judgment effected a “substantial modification” as opposed to a “clerical change.” Stone v. The Regents of the Univ. of Cal., 77 Cal.App.4th 736 (1999) thus held that “an appeal must be taken from the original judgment if the change was a clerical one, and from the modified judgment if the change was material and substantial.” Id. at 743-44 (appeal from modified judgment requiring defendant to indemnify plaintiff for additional defense costs was timely since modification materially affected the parties’ rights and “was undeniably one of substance”).
In the “clerical change” category there is George v. Bekins Van Storage Co., 83 Cal.App.2d 478 (1948), in which the original judgment resolved all disputes between the plaintiffs and Bekins but inadvertently did not dispose of claims against other defendants. After the court filed an amended judgment resolving these latter claims, Bekins timely appealed from the original judgment. The Court of Appeal denied the plaintiffs’ motion to dismiss the appeal, rejecting the claim that Bekins should have appealed from the amended judgment, and holding the amended judgment merely corrected a clerical error and did not affect the judgment between the plaintiffs and Bekins. Id. at 481-82.
Sometimes, though, what seems like a clerical error is really a substantial modification. Thus, in CC-California Plaza Assoc. v. Paller & Goldstein, 51 Cal.App.4th 1042 (1996), the court entered an amended judgment that substituted the correct name of the judgment debtor in place of another defendant whose name the court inadvertently listed as the judgment debtor in the original judgment. The Court of Appeal could not “imagine a more substantial or material change in the form of a judgment than in the identity of the losing party.… Thus, it was hardly a mere ‘clerical’ correction when … the trial court changed the judgment to reflect the correct name of the losing party[.]” Id. at 1049.
Indeed, two recent decisions have rejected the notion that the notice-of-appeal deadline turns on whether a change in the judgment is “clerical” or “material and substantial.” Instead, they have applied the “substantial modification” test by inquiring into whether the amended judgment substantially and materially affected the parties’ rights to appeal, regardless of whether the modification corrected a clerical error.
In Dakota Payphone, the trial court entered a default judgment for fraud against the defendant for $14,968,500. Recognizing that it lacked the power to award more than the complaint had pled for fraud ($10,863,000)—i.e., that the excess amount was void—the court entered an amended judgment reducing the original judgment to the lower amount. The defendant appealed solely from the amended judgment.
The appellate court dismissed the appeal because the defendant had not timely appealed from the original judgment. It noted that even though a $4 million “alteration” “appears to be substantial and to materially affect the rights of the parties,” that in fact was not so: In changing the parties’ “monetary positions … the trial court did not deprive [them] of their ability to challenge any portion of the [original] judgment. Rather, it merely altered their positions in the litigation to accord with the way things are required to be by law.” Id. at 509. Moreover, the defendant could have challenged the modification by appealing from the modification order. Id.
Last month, however, in Sanchez v. Strickland, __ Cal.App.4th __ (No. F060582, Nov. 4, 2011), the Fifth District also applied the “substantial modification” test but reached the opposite conclusion.
In Sanchez, the jury awarded a wrongful death heir the decedent’s past medical expenses. Posttrial, the court indicated that it would (1) reduce that award to the amounts paid or owed to the decedent’s medical providers (the propriety of that reduction was then an issue pending in Howell v. Hamilton Meats & Provisions, Inc. (since decided at 52 Cal.4th 541 (2011))—and (2) further reduce the plaintiff’s economic damages to account for the decedent’s 30 percent comparative fault. The trial court entered a judgment reducing the medical expense award but neglected to further reduce the award due to the decedent’s comparative fault.
Notified by the defendants about the trial court’s omission, the plaintiff agreed to the reduction. The court then entered an amended judgment, reducing the damages by $72,000. The plaintiff thereafter appealed from the amended judgment, challenging the medical expense reduction.
The defendants moved to dismiss the appeal, claiming the amended judgment merely corrected a clerical error so it did not re-start the notice-of-appeal period. The Court of Appeal disagreed. Refusing to classify the amendment as a mere insubstantial “clerical error,” it noted that not “all changes correcting clerical errors in judgments are insubstantial and immaterial.” Agreeing with the result in CC-California Plaza Assoc. (albeit not by name and not all of its reasoning), Sanchez posited the example where a trial court files an amended judgment implementing its intention to list defendant A as the judgment debtor instead of defendant B, where the court had named defendant B as the judgment debtor in the original judgment. Sanchez stated that “it is obvious that the rights of both defendants were materially affected when the trial court corrected its clerical error” such that it would be “unfair” and possibly a violation of “procedural due process” to hold that the change did not restart the appellate clock.
Thus, Sanchez concluded, the amended judgment reducing the plaintiff’s damages for comparative fault “materially altered the [decedent’s] rights of recovery because it was a “new legal ground (i.e., a new factor) not used to calculate the amount actually awarded” and “changed the formula used to calculate damages.”
But like the damages reduction in Dakota Payphone, the comparative fault reduction in Sanchez merely affected the parties’ “monetary positions.” And just as the damages reduction in Dakota Payphone did not deprive the defendant of the ability to challenge the default judgment there, the comparative fault damages reduction in Sanchez did not deprive the plaintiff of the ability to challenge the medical expense reduction—the focus of the appeal.
Sanchez also held that the change was “material” because “from a quantitative perspective, a reduction of an award by 30 percent or, in absolute terms, by $72,800, is material” rather than only “trivial” or “de minimus[.]” Yet, Dakota Payphone found a $4 million damages reduction not “material” because the defendant’s right to appeal remained the same and only the amount of the judgment had changed.
Thus, although Sanchez and Dakota Payphone invoke the same test to evaluate whether an amended judgment re-starts the notice-of-appeal clock, they reach opposite conclusions based on conflicting reasoning. These decisions, decided only nine months apart, demonstrate the difficulty of determining whether a party should appeal from the original or the amended judgment.
Unless a practitioner can eliminate all uncertainty as to whether an amended judgment substantially modifies the original judgment, the most prudent step may be to timely appeal from both. This step seems wise when the consequence is the loss of the right to a potentially meritorious appeal. After all, once the appellate hourglass runs out, nothing can cause it to start anew.
A version of this article appeared in the San Francisco and Los Angeles Daily Journal, December 5, 2011.