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).)

3 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

4 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.)

5 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. 6

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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