Steele v. West Coast Metals
Filed 12/17/12 Steele v. West Coast Metals
CA1/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
RICHARD S.
STEELE,
Plaintiff and Respondent,
v.
WEST COAST
METALS, INC.,
Defendant and Appellant.
A136768
(Sonoma
County
Super. Ct.
No. SCV 246200)
Plaintiff
and respondent Richard Steele moves to dismiss the appeal filed by defendant
West Coat Metals, Inc. as untimely. West
Coast maintains its time for appeal should properly be measured from the trial
court’s modified judgment, not the judgment originally entered, and that, so
measured, the appeal is timely. We agree
with Steele that West Coast was required to timely appeal from the
entertain this appeal and must dismiss it.
This commercial dispute involved claims for
services. After a bench trial, a
tentative statement of decision and additional briefing and argument, judgment
was entered on June 1, 2012, awarding Steele
$111,669.34 for breach of contract and conversion and $52,112.36 in prejudgment
interest. Notice of entry of judgment
was served on June 13.
Neither
party was satisfied with the judgment.
Steele moved for a new trial, primarily on grounds that the trial court
erroneously found that certain of his claims were barred by the
expand its factual findings concerning his conversion claim and to reduce the
amount of prejudgment interest, which Steele acknowledged had been incorrectly
calculated. West Coast moved to vacate
the judgment in its entirety as “inconsistent, incorrect, and [unsupported] by
law or facts.†It also agreed the
judgment incorrectly inflated the award of prejudgment interest.
On
August 10 the court issued its “Ruling After Hearing and Modification of
Judgment†that denied both motions and explained its findings supporting the
conversion award. The court also
modified the judgment to reduce the total prejudgment interest awarded to
$40,305.24. Notice of entry of the
amended judgment was served the same day.
West
Coast filed a notice of appeal on October 3, 2012, 123 days after notice of
entry of the original judgment, 65 days after the court denied the post-trial
motions, and 55 days after notice of entry of the amended judgment. Steele moved to dismiss the appeal.
West Coast, correctly, does not dispute that the
timeliness of this appeal turns on whether it was properly taken from the
amended judgment. (See Cal. Rules of
Court, rules 8.104(a) [notice of appeal must be filed 60 days from service
of notice of entry of judgment], 8.108(b) [or 30 days from service of order
denying post-trial motions].) Its
position is that the appeal taken from the amended judgment is timely because
the court’s expanded discussion of the conversion claim in the order and the
reduction of the prejudgment interest award in the amended judgment are
substantive changes that restarted the 60-day appeal period. We disagree.
192 Cal.App.4th 493 (Dakota) cogently
analyzes the controlling considerations.
The question there was whether an amended default judgment that reduced
damages by some $4 million to the amount sought in the complaint superseded an
original judgment for purposes of computing the time for the defendant’s
appeal. The court concluded it did not. Under the case law, it explained, the
analysis turns on whether the amended judgment “results in a substantial
modification†of the original, and therefore becomes the one final, appealable
judgment. (Id. at p. 504.) But what is
a “substantial modification� While
various courts considered whether the error corrected was “clerical†or
“judicial†or whether a modification “materially affected the rights of the
parties,†the Dakota court observed
that such considerations did not resolve the issue. Therefore, it examined the rationale for the
“substantial modification†rule to determine whether it applied on the facts
before it. (Id. at pp. 505–507.)
“The
crux of the problem,†the court reasoned, “is whether there is a substantial
change in the rights of the parties such that allowing an amendment nunc pro
tunc (relating back to the original judgment) would unfairly deprive them of
the right to contest the issue on appeal or otherwise.†(Id.
at pp. 506–507.) “[I]t is
ultimately the parties’ ability to challenge the ruling that is key. The right we are concerned with materially
affecting is the right to appeal.†(
in appellant’s favor was not
“substantial,†despite the large sum involved, because “[a]ll other parts of
the judgment not affected by the modification remained valid and could have
been challenged by appeal.†(
judgment that reduced damage award restarted plaintiff’s time to appeal].)
Therefore, the defendant’s attempt to appeal from the amended judgment
was untimely.
dispositive here. The only change
effected by the amended judgment was to reduce the award of prejudgment
interest. Even if we assume the judgment
was also amended to expand the court’s articulation of its findings regarding
the conversion claims, neither change affected West Coast’s right or ability to
appeal the original judgment or added further grounds to any appellate
challenge he might have pursued. “[I]f a
party can obtain the desired relief from a judgment before it is amended, he
must act—appeal therefrom—within the time allowed after its entry.†(George
v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 481.) That is the case here. As in Dakota,
supra, West Coast’s attempted appeal
from the amended judgment was untimely and must be dismissed.
The appeal is dismissed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
