Filed 7/9/13 Darden Painting v. Glass Architects CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


DARDEN PAINTING, INC., et al.
     Cross-complainants, Cross-
     defendants and Respondents,
v.
GLASS ARCHITECTS,                                                    A132846
     Cross-defendant, Cross-complainant
     and Appellant;                                                  (Alameda County
                                                                     Super. Ct. No. RG07343608)
ASC PROFILES, INC.,
     Cross-defendant and Respondent.


         Glass Architects (Glass) appeals from the trial court‟s determinations regarding
whether or not it was the prevailing party entitled to costs as against four different parties
who are respondents in this appeal, after a jury trial to determine all of the parties‟
liability for defective work on a community activity center in Newark, California.
Respondents disagree with Glass‟s numerous assertions of error, and also argue that we
lack jurisdiction to consider Glass‟s appellate claims because Glass did not timely appeal
from the court‟s judgment.
         We conclude that we lack jurisdiction to consider all but one of Glass‟s appellate
claims because they are untimely made. As for the one claim that has been timely made,
against respondent Tnemec Company, Inc. and California Coating Consultants, Inc.
(Tnemec), we affirm the trial court‟s ruling.




                                                             1
                                     BACKGROUND
       We summarize just those background facts necessary to resolve this appeal. Some
of the briefing contains factual contentions that are not supported by citations to the
record. We disregard these contentions. (Grant-Burton v. Covenant Care, Inc. (2002) 99
Cal.App.4th 1361, 1379 [“Because „[t]here is no duty on this court to search the record
for evidence‟ [citation], an appellate court may disregard any factual contention not
supported by a proper citation to the record.”].)
       In August 2007, the City of Newark (Newark) filed a complaint against general
contractor W.A. Thomas, Inc. (WATCO) and Travelers Casualty and Surety Company of
America. Against WATCO, Newark alleged breach of contract, breach of express
warranty, and negligence for defective work done in the construction of its George M.
Silliman Community Activity Center (Center).
       In October 2007, WATCO filed a cross-complaint, which, as amended over time,
brought claims against respondents Darden Painting, Inc. (Darden), Pacific Erectors, Inc.
(Pacific), Tnemec, and later, during trial in October 2010, against Glass.
       The record and the parties‟ briefings indicate that these parties filed a series of
cross-complaints against each other, and also against respondent ASC Profiles, Inc.,
doing business as ASC Steel Deck (ASC). Specifically, it appears that: Glass cross-
complained against WATCO, Darden, Pacific, and Tnemec. Darden cross-complained
against Pacific, Tnemec, Glass, and ASC. Pacific cross-complained against WATCO,
Darden, Tnemec, Glass, and ASC.
       Tnemec cross-complained against WATCO, Darden, Pacific, Glass, and ASC.
However, in September 2009, a year before trial, Tnemec dismissed its negligence cause
of action against Glass, with each party to bear its own fees and costs.
       Glass and ASC did not cross-complain against each other.
                              Trial, Settlements, and Verdict
       In September 2010, a jury trial started and was conducted over a period of eight
weeks. Shortly after the trial started, WATCO settled with Newark for $3.2 million,
which the court determined was made in good faith pursuant to Code of Civil Procedure


                                              2
section 877.6, and Newark was dismissed as a party. WATCO proceeded with its claims
for indemnity against the remaining parties.
       Before the end of trial, WATCO settled separately with Darden and Glass
regarding its indemnity claims against them. Darden agreed to settle with WATCO at an
amount valued at $1,062,000, which settlement the court found to be made in good faith
pursuant to Code of Civil Procedure section 877.6.1
       Glass agreed to pay WATCO the remainder of its insurance policy, which
settlement the court found on November 15, 2010, was made in good faith within the
meaning of Code of Civil Procedure sections 877 and 877.6. Glass ultimately made a
total payment, including its insurance deductible, of $481,874.50. As part of this
determination, the court ordered at the November 15 hearing that all existing cross-
complaints against Glass were dismissed and forever barred. Glass‟s counsel indicated at
the hearing that all cross-complaints were dismissed, without distinguishing between
those against it and those it brought against others. The trial court then informed the jury
that Glass would not be participating in closing arguments, although the allocation of
fault to Glass would be submitted to it. The court further stated: “Glass has settled its
differences with WATCO and has no remaining claims or claims to defend with respect
to any of the other parties.”
       WATCO pursued its indemnity claims against the remaining parties. After trial,
the jury returned a special verdict finding the settlement between Newark and WATCO
was not unreasonable, and allocating percentages of fault among the parties, including
those who had settled with WATCO, regarding damage to the “steel decking,” “structural
steel,” “aluminum duct,” and “miscellaneous steel.” The jury allocated WATCO‟s
damages as 17 percent to the steel decking, 40 percent to the structural steel, 30 percent
to the aluminum duct, and 13 percent to the miscellaneous steel. The jury determined the
percentage of damage to the four surfaces substantially caused by the negligence of the
parties. It found regarding the parties to this appeal that Darden and Glass had the
       1
        The court‟s order was made orally on November 15, 2010, as indicated in its
subsequent written order, filed on February 8, 2011.


                                               3
greatest overall liability, followed by Tnemec, and that ASC and Pacific were not liable
at all.
          The jury found regarding the parties to this appeal that Darden and Glass had the
greatest overall liability, followed by Tnemec, and that ASC and Pacific were not liable
at all.
                         The Original Judgment Issued by the Court
          Glass moved for prevailing party determinations. It asserted in a proposed order
that it was the prevailing party as against the cross-complaints filed by Darden, Tnemec,
and Pacific, which were dismissed as part of the court‟s determination that Glass‟s
settlement with WATCO was made in good faith, and that the three should be found
jointly and severally liable for Glass‟s costs. Glass further asserted that, as a result of its
representation to the court, as part of its good-faith settlement with WATCO, that its
cross-complaints against Darden, Tnemec, and Pacific were dismissed, as well as the
court‟s instruction to the jury that Glass had no remaining claims or claims to defend
regarding any other parties, Glass‟s cross-complaints against these three parties had been
dismissed on November 15, 2010, and no parties prevailed regarding these cross-
complaints.
          Around the same time, WATCO submitted a proposed judgment to the court.
Glass objected to it, including to WATCO‟s reference in paragraph 8 to Glass as a
nominally prevailing party on Tnemec‟s negligence cause of action, which Glass objected
to because Tnemec had dismissed it in September 2009, a year before trial. Glass also
argued that, unlike in WATCO‟s proposed judgment, it should be named prevailing party
as against Pacific, Tnemec, and Darden, and should be awarded its costs as against those
parties.
          On February 4, 2011, the deputy clerk of the court mail-served the parties with a
judgment after jury trial and verdict, issued on February 3, 2011 (original judgment).
The original judgment, with the court‟s edits by hand, contains several provisions
germane to this appeal: First, although Glass had asserted it was the prevailing party as



                                               4
against Darden, the original judgment does not state that Darden or Glass prevailed as
against the other.
       Second, in paragraph 10 of the original judgment, the court ordered that Glass
would take nothing on its equitable indemnity and contribution causes of action against
Tnemec and Pacific; Tnemec would take nothing on its equitable indemnity cause of
action against Glass; and that Pacific was the prevailing party as against Glass and
entitled to its costs. Paragraph 10 of the original judgment, as hand-edited by the court,
reads: “Glass Architects shall take nothing on its equitable indemnity and contribution
causes of action against Tnemec and Pacific Erectors, Inc. Tnemec shall take nothing on
their respective equitable indemnity causes of action against Glass. Pacific Erectors, Inc.
and ASC are the prevailing parties as against Glass, are entitled to their respective costs
against Glass.”
       Third, although Glass and ASC had not cross-complained against each other, ASC
was declared the prevailing party, and entitled to its costs, as against Glass.
       Fourth, in paragraph 8, regarding Tnemec‟s negligence cause of action, the court
crossed out two references to Glass, but left in a third. Thus, paragraph 8, as hand-edited
by the court, reads: “Tnemec shall take nothing on its negligence cause of action against
Darden, Pacific Erectors, Inc., and ASC. Darden, Pacific Erectors, Inc., ASC, and Glass
Architects are nominally the prevailing party as against Tnemec, however Darden is not
entitled to its costs against Tnemec re Tnemec‟s negligence cause of action. ASC is
entitled to its costs as against Tnemec re Tnemec‟s negligence cause of action[.]”
                      Postjudgment Cost Memoranda and Motions
       The original judgment did not determine cost amounts to be paid to prevailing
parties. Glass, WATCO, Pacific, and ASC each filed memorandum of costs. Glass‟s
costs totaled $32,276.85, Pacific‟s totaled $30,650.78, and ASC‟s totaled $32,664.78.
       Glass also filed a motion to correct the judgment for clerical mistake or, in the
alternative, to strike or tax costs sought by ASC, arguing on a variety of grounds that
ASC could not be a prevailing party as against Glass. Glass also moved to strike or tax
costs sought by Pacific. Glass did not file a notice of appeal from the original judgment.


                                              5
          Tnemec filed a motion to correct a clerical error in the original judgment as well.
It argued that the court made a clerical error in paragraph 8 when it designated Glass as
the nominally prevailing party as against Tnemec on Tnemec‟s negligence cause of
action.
          After holding an April 2011 hearing regarding the various motions and
memoranda of costs submitted by the parties, the trial court issued a tentative order in
May 2011, and ordered the parties to meet and confer to determine dollar amounts to be
awarded that the court had left blank, without revisiting the court‟s rulings. The tentative
order granted Tnemec‟s clerical error motion, striking the reference to Glass as a
prevailing party regarding Tnemec‟s negligence cause of action in paragraph 8 of the
original judgment, and denied both of Glass‟s motions and its memorandum of costs.
                         The Modified Judgment Issued By the Court
          On June 6, 2011, the trial court issued a “Modified Judgment After Jury Trial and
Verdict” (modified judgment). The court did not change any of the prevailing party
determinations it had ordered in the original judgment, except to remove “and Glass
Architects” from paragraph 8 as requested by Tnemec in its clerical error motion, nor did
the court further address whether Darden or Glass prevailed as against each other.
          In the modified judgment, the court also included a section entitled “Post-Trial
Order on Motions to Amend Judgment, to Strike or Tax Memoranda of Costs, and to
Award Attorney‟s Fees.” In this section, the court ordered, among other things, that ASC
was entitled to most of its $32,664.78 of costs and that Glass, Darden, and Tnemec were
to pay them on a pro rata basis, i.e., $9,837.55 each. It ordered that Pacific was entitled
to most of its $30,650.78 of costs, and that Glass, WATCO, Darden, and Tnemec were to
pay them on a pro rata basis, i.e., $6,435.86 each. It denied Glass‟s memorandum of
costs, motion to strike or tax costs regarding Pacific, and motion to correct the judgment
for clerical error.
          Importantly, the court also stated in the modified judgment: “This Modified
Judgment After Jury Trial and Verdict supersedes the February 3, 2011 Judgment, except



                                                6
that the February 3, 2011 date of entry shall remain the effective date of entry of the
Modified Judgment.”
                                 Glass’s Notice of Appeal
       On August 4, 2011, Glass filed a notice of appeal regarding the “judgment after
jury trial,” indicating that the “judgment” had been entered on June 6, 2011, the date the
modified judgment was filed.
       In its brief, Darden argues that we do not have the jurisdiction to consider Glass‟s
appeal regarding Darden because Glass did not timely appeal from the original judgment.
Glass disagrees. We asked Glass, ASC, Tnemec, and Pacific to provide supplemental
briefing regarding our jurisdiction to consider Glass‟s appeal, which they provided. Like
Darden, these other respondents each argues that we do not have jurisdiction to consider
Glass‟s appellate claims against it because Glass did not timely appeal from the original
judgment. Glass disagrees with each of these arguments as well.
                                      DISCUSSION
       On appeal, Glass presents numerous arguments why the trial court‟s prevailing
party determinations and resulting costs awards regarding Glass were wrong and should
be reversed. Glass emphasizes that, in its view, the court‟s ordering Glass to pay costs
for ASC, Pacific, and Tnemec after Glass settled with WATCO for the entire amount
remaining on its insurance policy, which settlement the court found was made in good
faith, “endangers the continued viability of favoring good faith settlements throughout the
State of California and, more immediately, exposes a party found to have settled in good
faith to added litigation costs.” Also, Glass argues, the trial court‟s judgment, by denying
Glass recovery of its costs from Darden, Tnemec, and Pacific, “may chill the willingness
of defendants and cross-defendant[s] to settle for remaining insurance policy limits,
because that will not end the settling party‟s exposure beyond his or her insurance policy
limits.” In its opening brief, Glass presents 18 categories and subcategories of arguments
to explain why ASC and Pacific should not have been designated prevailing parties as
against Glass and Glass should have been designated the prevailing party as against
Darden, Pacific, and Tnemec.


                                             7
       Respondents ASC, Darden, Pacific, and Tnemec each opposes Glass‟s arguments
against it. We do not address the merits of most of Glass‟s arguments, however, because
of our conclusion that we lack jurisdiction to consider most of Glass‟s appeal.
                      I. Our Jurisdiction to Consider Glass’s Appeal
       We conclude that Glass did not timely appeal from the court‟s rulings regarding
Darden, ASC, Pacific and, for the most part, Tnemec. Therefore, we have no jurisdiction
to consider them and must dismiss most of Glass‟s appeal.
A. Timeliness of Glass’s Appeal
       The original judgment was mail-served by the deputy clerk of the court on
February 4, 2011. Therefore, pursuant to the California Rules of Court, Glass was
required to file a notice of appeal from the original judgment within 60 days of February
4, 2011. (Cal. Rules of Court, rule 8.104(a)(1)(A).)2 “Once a final, appealable order or
judgment has been entered, the time to appeal begins to run.” (Laraway v. Pasadena
Unified School Dist. (2002) 98 Cal.App.4th 579, 583.) “If a notice of appeal is filed late,
the reviewing court must dismiss the appeal.” (Cal. Rules of Court, rule 8.104(b).) “The
time for appealing a judgment is jurisdictional; once the deadline expires, the appellate
court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v.
Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Glass did
not file a notice of appeal from the original judgment.
       A modified judgment may begin a new appeal period, but only if it contains a
substantial modification of the original judgment. “ „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.‟ [Citation.] „When the trial court
       2
          According to the California Rules of Court, “a notice of appeal must be filed on
or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party
filing the notice of appeal a document entitled „Notice of Entry‟ of judgment or a file-
stamped copy of the judgment, showing the date either was served; [¶] (B) 60 days after
the party filing the notice of appeal serves or is served by a party with a document
entitled „Notice of Entry‟ of judgment or a file-stamped copy of the judgment,
accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” (Cal.
Rules of Court, rule 8.104(a)(1).)


                                              8
amends a nonfinal judgment in a manner amounting to a substantial modification of the
judgment (e.g., on motion for new trial or motion to vacate and enter different judgment),
the amended judgment supersedes the original and becomes the appealable judgment
(there can only be one “final judgment” in an action . . .). Therefore, a new appeal period
starts to run from notice of entry or entry of the amended judgment.‟ ” (Torres v. City of
San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).)
       In order to determine the timeliness of the appeal, we focus on the appellate claim
made between the particular parties involved. “The crux of the problem . . . 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. . . . [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.” (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493,
506-508.)
       However, a modification of a judgment to add such things as costs does not begin
a new appeal period. “It is well settled . . . 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.‟ [Citations.] „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.‟ ” (Torres, supra, 154 Cal.App.4th at p. 222.)
       Furthermore, “[i]n order to be appealable, a postjudgment order must also raise an
issue different from those embraced in the judgment; otherwise it would give a party two
chances to appeal the same ruling and thus . . . circumvent the time limit on appealing
from the judgment.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.)
       Glass‟s notice of appeal was filed on August 4, 2011, and was from the modified
judgment. Therefore, it was untimely as to those matters resolved in the original
judgment, unless the modified judgment contained a substantial modification regarding



                                                9
these matters. We now consider whether this is the case with regard to each of Glass‟s
appellate claims.
B. Darden
       Glass asserts that the trial court should have found it was the prevailing party as
against Darden for several reasons, including because the jury‟s verdict allocated
significantly more liability to Darden than to Glass; Darden‟s settlement payment was
more than twice that of Glass; Glass had the right to recover costs from Darden pursuant
to Code of Civil Procedure section 1032, subdivision (b); and only Glass could prevail
because Darden brought Glass into the litigation. Darden responds that we have no
jurisdiction to consider these arguments because Glass did not appeal from the original
judgment and the court‟s prevailing party determination between the two parties was not
substantially modified by the modified judgment. We agree with Darden.
       The trial court did not expressly address this prevailing party issue in the original
judgment. However, before the court issued the original judgment, Glass submitted both
a proposed order and an objection to WATCO‟s proposed order, proposing in both that it
be declared the prevailing party as against Darden. Nonetheless, the court did not
designate Glass or Darden as prevailing party vis-à-vis the other in the original judgment.
       At the April 2011 hearing to discuss the parties‟ postjudgment cost memoranda
and motions, Glass‟s counsel reasserted its argument that Glass was the prevailing party
as against Darden and entitled to its costs. Nonetheless, the court again did not name
Glass or Darden as the prevailing party vis-à-vis the other in the modified judgment.
       Glass asserts that the trial court did not consider the matter until the modified
judgment, when the trial court denied Glass‟s memorandum of costs. It contends
regarding the original judgment that “[t]he clerk of the court . . . overlooked this issue,
resulting in the court not addressing the prevailing party” issue between Glass and
Darden. Glass provides no support for this assertion, or explanation why the court also
did not expressly address the issue in the modified judgment either, including in its denial
of Glass‟s memorandum of costs. We have no reason to believe that the trial court
overlooked the issue when it issued the original judgment; rather, we conclude that it


                                              10
decided not to designate either Darden or Glass as the prevailing party; in other words,
pursuant to the original judgment, neither party achieved prevailing party status.
       Glass further argues that it followed proper procedure because, according to Glass,
when a trial court “is silent [in its judgment] on a prevailing party issue, the solution is
for the prevailing party to file a Memorandum of Costs.” However, the case Glass relies
on, Williams v. Santa Maria Joint Union High School Dist. (1967) 252 Cal.App.2d 1010,
addresses what to do when a judgment contains no provision for mandatory costs (id. at
p. 1014), which is different than a judgment that does not declare either party as the
prevailing party. Therefore, Glass‟s argument is unpersuasive.
       Glass also argues that the reporter‟s transcript for the April 18, 2011 hearing
indicates that the original judgment was never filed. The record indicates otherwise.
       Finally, Glass argues that the trial court, by making the modified judgment
effective as of the date of the original judgment, February 3, 2011, improperly rendered
that judgment non-appealable. Again, we disagree. As Glass indicates, generally, “a
superior court cannot prohibit an appeal from its own judgment.” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 1999) ¶ 2:7.5, pp. 2-13,
citing MacDonald v. Superior Court (1977) 75 Cal.App.3d 692, 696-697; see also In re
Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222, fn. 4 [finding it “highly
inappropriate for a trial court to attempt to dissuade a litigant from exercising his or her
right to appeal”].) However, the trial court took no such action here. There was no
substantial modification of the original judgment as to the prevailing party issue between
Glass and Darden (or, as we will discuss, regarding any appellate claim by Glass). To the
extent the court ruled regarding Glass‟s memorandum of costs (as well as a motion to tax
costs by Darden that is referred to in the modified judgment, but which motion is not
contained in the record) in the posttrial order section of the modified judgment, this was
not a substantial modification of the original judgment either. (Torres, supra, 154
Cal.App.4th at p. 222.) The trial court did nothing to dissuade Glass from appealing from
the original judgment regarding Darden, or any other party for that matter.



                                              11
       In short, Glass is not excused from its failure to appeal from the original judgment
simply because the trial court issued a modified judgment that contained no changes
regarding the prevailing party issue between Glass and Darden. (Torres, supra, 154
Cal.App.4th at p. 222.) Because Glass failed to appeal from the original judgment with
60 days of its service to the parties by the deputy clerk of the court, we have no
jurisdiction to consider its appellate claims regarding Darden. (Cal. Rules of Court, rule
8.104(a)(1)(A).)
C. Pacific
       Glass‟s appeal regarding Pacific asserts that the trial court committed reversible
error when it declared Pacific to be the prevailing party as against Glass because Glass‟s
cross-complaint was dismissed as part of the trial court‟s determination that Glass‟s
settlement with WATCO was in good faith. Therefore, Glass contends, the trial court
should not have ordered it to pay $6,435.86 in costs to Pacific. Glass also asserts the
court should have declared it the prevailing party as against Pacific and ordered Pacific to
pay its pro rata share of Glass‟s $32,276.85 in costs.
       Pacific disagrees with each of Glass‟s arguments, and also asserts that this court
lacks jurisdiction to consider them for essentially the same reasons asserted by Darden.
We agree with Pacific that we lack jurisdiction to consider Glass‟s arguments.
       In its original judgment, the trial court determined Pacific to be the prevailing
party as against Glass, and entitled to its costs. In its modified judgment, the trial court
repeated the same determination, without making any changes. It is this determination
that Glass complains of on appeal.
       In its supplemental briefing, Glass argues that it could only appeal from the
modified judgment because the original judgment was “silent,” or at least “ambiguous,”
regarding Pacific‟s cross-complaint against Glass, since it did not state whether Glass or
Pacific prevailed as against Glass regarding this cross-complaint. According to Glass, the
court‟s silence, or at least its ambiguity, rendered the original judgment “interlocutory
and unappealable in that it did not make a final determination of all issues and did not
address [Pacific‟s] cross-complaint against [Glass],” based on cases in which judgments


                                              12
failed to dispose of cross-complaints (see Angell v. Superior Court (1999) 73 Cal.App.4th
691, 698; Nicholson v. Henderson (1944) 25 Cal.2d 375, 380-381), or where a court
determined a ruling on a motion brought pursuant to Code of Civil Procedure section
437c was not a final judgment (see Olson v. Cory (1983) 35 Cal.3d 390, 398-399). Glass
contends, much as it does regarding Darden, that the trial court did not address who
prevailed between Glass and Pacific until the modified judgment, when the court ruled
that Glass was obligated to pay pro rata costs to Pacific and denied Glass‟s memorandum
of costs.
       Glass‟s argument is unpersuasive in light of the record before us. As Glass
acknowledges, Pacific‟s cross-complaint against Glass was dismissed on November 15,
2010, as part of the court‟s determination that the Glass settlement with WATCO was in
good faith. In other words, the cross-complaint was disposed of by dismissal, making the
cases cited by Glass inapposite.
       Also, the record indicates that the court considered, and decided, in the original
judgment that Pacific was the prevailing party as against Glass after taking into account
the parties‟ cross-complaints against each other. As Glass also acknowledges, prior to
the court‟s issuance of the original judgment, Glass proposed that it be found the
prevailing party as against Pacific regarding Pacific‟s cross-complaint. The court
rejected this proposal and determined that Pacific was the prevailing party, as indicated
by its hand edits of paragraph 10 of the original judgment. The trial court‟s deletion of
“and Pacific” in the second line of paragraph 10 indicates that Pacific was not barred
from obtaining costs against Glass regarding Pacific‟s cross-complaint, and was
immediately followed by the court‟s designation of Pacific as the prevailing party as
against Glass. This establishes that the court considered Pacific‟s cross-complaint in
making its prevailing party designation in the original judgment. Furthermore, the
modified judgment contained the same paragraph 10, unchanged in any way.
       In the modified judgment, the trial court also ordered Glass to pay a pro rate share
of Pacific‟s costs in the amount of $6,435.86. However, Glass does not appeal from this



                                             13
section of the court‟s order regarding Pacific, which in any event is not a substantial
modification of the original judgment. (Torres, supra, 154 Cal.App.4th at p. 222.)3
       In short, as with Darden, Glass is not excused from its failure to appeal from the
original judgment simply because the trial court issued a modified judgment that
contained no changes regarding the prevailing party issue between Glass and Pacific.
(Torres, supra, 154 Cal.App.4th at p. 222.) Because Glass failed to appeal from the
original judgment within 60 days of its service to the parties by the deputy clerk of the
court, we have no jurisdiction to consider its appellate claims regarding Pacific. (Cal.
Rules of Court, rule 8.104(a)(1)(A).)
D. ASC
       Glass‟s appeal regarding ASC asserts that the trial court committed reversible
error when it declared ASC to be the prevailing party as against Glass, leading to an
award of $9,837.55, for numerous reasons, including because Glass and ASC did not
cross-complain against each other; ASC could not be declared a prevailing party as
against Glass in light of the provisions of Code of Civil Procedure section 1032,
subdivision (a)(4); ASC had purportedly waived any right to costs from Glass prior to the
issuance of the original judgment; and the trial court abused its discretion in awarding
costs against Glass because the court did not also award costs against WATCO, who also
did not cross-complain against ASC and because the court‟s good faith settlement ruling
should extend to cost claims of non-settling parties.
       Like Darden and Pacific, ASC argues that Glass‟s appeal is untimely against it
because of Glass‟s failure to appeal from the original judgment within 60 days of the
deputy clerk‟s service of the original judgment. ASC is correct in that the court
determined in paragraph 10 of the original judgment that ASC was the prevailing party
over Glass, and made no change in this determination in the modified judgment.


       3
         Glass also argues that changes in the modified judgment regarding ASC‟s costs
were a substantial modification of the original judgment and were “interwoven” with
Glass‟s appeal regarding Pacific‟s costs. We reject this argument regarding ASC.
Therefore, we reject it regarding Pacific as well.


                                             14
Therefore, unless there was a substantial modification regarding the issue in the modified
judgment, Glass‟s appeal regarding ASC is untimely.
        Glass argues that just such a substantial modification regarding its liability to ASC
was made because, while the original judgment provided that ASC had prevailed as
against four parties, including Glass, the modified judgment removed Pacific as a party
responsible for ASC‟s costs, leaving three parties to pay ASC‟s costs on a pro rata basis.
As a result, in the modified judgment Glass was responsible for 33 percent of ASC‟s
costs, rather than 25 percent; according to Glass, under the original judgment, Glass
would have been expected to pay $7,378.16, but pursuant to the modified judgment it
was ordered to pay $9,837.55. Since this is a 33 percent increase in costs, Glass argues, it
is a “material change restarting the 60-day period for filing a notice of appeal.”
        Glass relies on Sanchez v. Strickland (2011) 200 Cal.App.4th 758 (Sanchez) and
Stone v. Regents of University of California (1999) 77 Cal.App.4th 736 (Stone) for this
argument. In Sanchez, the court filed an amended judgment that reduced the damages
award to a plaintiff from $242,660.78 to $169,862.55, a reduction of $72,798.23, because
of an error acknowledged by the parties. (Sanchez, at pp. 763-764.) The defendants
argued that the plaintiffs‟ appeal was untimely because this damages award reduction did
not substantially modify the original judgment. (Id. at p. 764.) Glass notes the appellate
court‟s conclusion that appeal was timely because the reduction was a substantial
modification. Among other things, the court reasoned, “from a quantitative perspective, a
reduction of an award by 30 percent or, in absolute terms, by $72,800, is material. Thus,
the situation presented is not one where the respective legal rights and duties omitted
from the original judgment resulted in only a trivial or de minimis change in the amount
of the amended judgment.” (Id. at p. 767.) The merits of the appeal involved the amount
of this damages award, which the appellate court increased to $174,776.55. (Id. at p.
769.)
        In Stone, the Regents of the University of California (Regents) appealed from a
judgment directing a writ of mandate issue to compel them to provide a defense to
petitioner Stone in a civil action against him. (Stone, supra, 77 Cal.App.4th at p. 739.)


                                             15
As part of its original judgment, the court directed that a writ of mandate issue to compel
the Regents to pay for Stone‟s defense from May 25, 1996, which date the court
subsequently changed to March 25, 1995, upon a motion for reconsideration and then to
June 12, 1995, in a modified judgment. (Id. at p. 743.) The Regents appealed from the
modified judgment, and Stone argued that the appeal was untimely because it should
have been from the original judgment. (Ibid.) The appellate court rejected Stone‟s
argument, finding that the modification that required the Regents to pay Stone‟s legal
expenses for an additional nine months materially affected their rights. (Id. at p. 744.)
On the merits, the appellate court reversed the lower court‟s judgment because it
concluded that the Regents did not abuse their discretion in turning down Stone‟s
defense. (Id. at p. 749.)
       Neither Sanchez nor Stone is applicable to the present case because in both cases,
the modification involved was to a term in the initial judgment itself and was an issue
raised in the appeal. Here, on the other hand, Glass does not argue on appeal that the
amount it was ordered to pay in costs should have been less. Instead, Glass challenges
the trial court‟s prevailing party determination on a variety of grounds, which
determination was unchanged between the original judgment and the modified judgment.
Furthermore, the original judgment did give Glass an indication that it would be
responsible for a one-third pro rata share of ASC‟s costs, rather than a one-quarter share.
The court expressly stated in paragraph 9 of the original judgment that, although ASC
was the prevailing party as against Pacific, it had waived recovering its costs from
Pacific. Glass acknowledges this waiver, but asserts that the original judgment “limited
Glass‟s exposure to one-fourth of ASC‟s costs,” without explaining how. We do not find
such a limitation in the original judgment.
       We conclude that Glass has not established that there was a substantial
modification of the original judgment that is germane to its appeal regarding ASC. Glass
is not excused from its failure to appeal the original judgment simply because the trial
court issued a modified judgment that contained no changes regarding the prevailing
party issue between Glass and ASC. (Torres, supra, 154 Cal.App.4th at p. 222.)


                                              16
Because Glass failed to appeal from the original judgment with 60 days of its service to
the parties by the deputy clerk of the court, we have no jurisdiction to consider its
appellate claims regarding ASC. (Cal. Rules of Court, rule 8.104(a)(1)(A).)
E. Tnemec
       Glass‟s appeal regarding Tnemec asserts four arguments for why the trial court
committed reversible error by not determining that Glass was the prevailing party as
against Tnemec. Tnemec opposes these arguments, and also argues that Glass‟s appeal
regarding it is untimely made, for the same reasons asserted by the other respondents.
       We conclude that three of Glass‟s appellate arguments relate entirely to the court‟s
original judgment and, therefore, are untimely made. They are that the court‟s ruling that
Glass‟s settlement with WATCO was made in good faith included the dismissal of
Tnemec‟s remaining cross-complaint claims; Glass was entitled to the prevailing party
determination pursuant to Code of Civil Procedure section 1032 because its WATCO
settlement was far less than the judgment against Tnemec; and the trial court‟s purported
dismissal of Glass‟s cross-complaint against Tnemec upon determining that Glass‟s
WATCO settlement was in good faith did not entitle Tnemec to be designated the
prevailing party against Glass.
       Each of these three arguments relates to the trial court‟s determinations in
paragraph 10 of the original judgment that neither Tnemec nor Glass were to receive any
costs from each other regarding claims in their respective cross-complaints against each
other.4 As we have discussed, paragraph 10 remained unchanged in the modified
judgment. Glass does not establish that there was a substantial modification of the

       4
          In its supplemental reply briefing regarding our jurisdiction to consider its
appeal, Glass argues for the first time that the court did not rule on all of the causes of
action brought by Tnemec against Glass until its modified judgment. Glass does not
provide citation in the record to Tnemec‟s cross-complaint, however. We disregard the
argument as tardily made (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764
[“ „[p]oints raised for the first time in a reply brief will ordinarily not be considered‟ ”])
and because of Glass‟s failure to provide citation to the record that is sufficient for this
court to evaluate its argument. (Grant-Burton v. Covenant Care, Inc., supra, 99
Cal.App.4th at p. 1379.)


                                              17
original judgment regarding these claims that is germane to its appeal regarding ASC.
Therefore, Glass cannot be excused from its failure to appeal the original judgment
regarding these claims. (Torres, supra, 154 Cal.App.4th at p. 222.) Because Glass failed
to appeal from the original judgment with 60 days of its service to the parties by the
deputy clerk of the court, we have no jurisdiction to consider these appellate claims
regarding Tnemec. (Cal. Rules of Court, rule 8.104(a)(1)(A).)
       Glass also argues that the trial court determined that it was the prevailing party as
against Tnemec in paragraph 8 of the original judgment and that the court lacked
jurisdiction to delete this designation in the modified judgment. According to Glass, its
appeal regarding all Tnemec issues has been timely made from the modified judgment
because this deletion amounts to a substantial modification pursuant to such case law as
CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042 (CC-
California).
       We disagree for two reasons. First, the trial court‟s reference to Glass as
“nominally the prevailing party” in that paragraph, and its subsequent deletion in the
modified judgment, related to Tnemec‟s negligence cause of action only. The court
determined in paragraph 10 of the original (and modified) judgment that neither Glass
nor Tnemec were to take anything from each other on claims in their cross-complaints.
       Second, Glass does not cite to anything that establishes that the court‟s change in
the modified judgment was an exercise of judicial discretion. To the contrary, all of the
evidence in the record indicates the change was of a clerical nature, which distinguishes
this case from CC-California.
       In CC-California, an opinion issued by this court, the trial court issued a judgment
of nonsuit in May which referred to the wrong entity as the losing party; the entity,
Dillingham, had assigned its indemnity rights to CC-California, which had then
prosecuted these claims against the defendant, Paller. (CC-California, supra, 51
Cal.App.4th at p. 1046.) The trial court verbally granted Dillingham‟s motion to correct
the judgment in June, but did not issue a corrected judgment until a little more than three
months later, in October. (Ibid.) CC-California filed a notice of appeal from the


                                             18
judgment of nonsuit in September; Paller argued the appeal was untimely because the
notice was filed considerably past the deadline for an appeal from the original May
judgment. (Id. at p. 1047.)
       We rejected Paller‟s untimeliness argument. We summarized the rule on the
matter as follows: “ „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: . . . When the trial court amends a nonfinal judgment in a
manner amounting to a substantial modification of the judgment (e.g., on motion for new
trial or motion to vacate and enter different judgment), the amended judgment supersedes
the original and becomes the appealable judgment . . . . Therefore, a new appeal period
starts to run from notice of entry or entry of the amended judgment. . . . On the other
hand, if the amendment merely corrects a clerical error and does not involve the exercise
of judicial discretion, the original judgment remains effective as the only appealable final
judgment; the amendment does not operate as a new judgment from which an appeal may
be taken.‟ ” (CC-California, supra, 51 Cal.App.4th at p.1048.) We rejected the
argument that the change in that case was clerical rather than substantive: “To us the
issue is relatively easy; we cannot imagine a more substantial or material change in the
form of a judgment than in the identity of the losing party.” (Id. at pp. 1048-1049.)
       Unlike in CC-California, in the present case the trial court granted Tnemec‟s
motion to correct clerical error, indicating that the court itself concluded its error was
merely clerical. The record supports this conclusion. The trial court extensively edited
paragraph 8 of the original judgment by hand and deleted two of the three references to
Glass in the paragraph, which indicates that the court also intended to delete, but simply
missed, the third reference. This is further supported by the fact that, as Tnemec points
out, the court did not state that Glass was entitled to recover any costs from Tnemec in
paragraph 8. Furthermore, as Tnemec also points out, Glass could not be entitled to costs
on its negligence cause of action because Tnemec‟s dismissal included the parties‟ waiver
of fees and costs. Glass ignores this waiver. Furthermore, given that Glass was not



                                              19
entitled to costs in any event, the court‟s deletion of Glass as nominally a prevailing party
in paragraph 8 was not a material change.
       In short, we conclude the court‟s deletion in paragraph 8 of Glass as a prevailing
party as against Tnemec was a clerical change regarding Tnemec‟s negligence cause of
action only, and not a substantial modification of the original judgment that gave Tnemec
a new time period for filing a notice of appeal regarding all of its appellate claims against
Tnemec.
       Having determined this, we conclude Glass has timely appealed from the trial
court‟s modified judgment to the extent it argues that the trial court lacked jurisdiction to
make this deletion in the modified judgment. A motion to correct the judgment for
clerical error is separately appealable as a postjudgment order. (Bowden v. Green (1982)
128 Cal.App.3d 65, 68 fn. 1). Glass‟s notice of appeal from the modified judgment
encompasses the court‟s order granting Tnemec‟s motion to correct the original judgment
for clerical error and, therefore, this limited appellate claim is timely made. Nonetheless,
we reject Glass‟s argument for the following reasons.
       As stated in a case cited by Tnemec, “ „ “A court can always correct a clerical, as
distinguished from a judicial error which appears on the face of a decree by a nunc pro
tunc order.” ‟ ” (In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 852.) “ „[I]t is
not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission,
oversight or error, or to show what the court might or should have done as distinguished
from what it actually did. An order made nunc pro tunc should correct clerical error by
placing on the record what was actually decided by the court but was incorrectly
recorded.‟ ” (Id. at p. 852.)
       Nonetheless, in its opening brief Glass argues only that the trial court, once it
issued the original judgment, lacked the jurisdiction to set aside or amend it. Glass relies
on citations by a treatise to two appellate court cases without any explanation of their
application to the present circumstances, and merely repeats these conclusory arguments




                                             20
in its reply brief. Glass does not argue that the trial court could not correct the judgment
for clerical error, or that its decision to do so was in error.5
       Glass‟s “no jurisdiction” argument fails for two reasons, although neither is raised
by Tnemec. First, we are entitled, and do, disregard the Glass‟s argument because of its
conclusory nature. “An appellate court is not required to consider alleged errors where
the appellant merely complains of them without pertinent argument” (Strutt v. Ontario
Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873), including when “the relevance of the
cited authority is not discussed or points are argued in conclusory form.” (Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
       Second, even if we were to consider Glass‟s “no jurisdiction” argument, it does
not address the actual basis for the trial court‟s ruling—that the court made a clerical
error in its original judgment. “Perhaps the most fundamental rule of appellate law is that
the judgment challenged on appeal is presumed correct, and it is the appellant‟s burden to
affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567,
1573; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ „A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown‟ ”].) Glass does not affirmatively demonstrate error. Therefore, its argument is
unpersuasive.
                                        DISPOSITION
       Glass‟s appellate claims are dismissed with prejudice as untimely made, with the
exception of its appellate claim that the trial court did not have jurisdiction to modify
paragraph 8 of the original judgment so as to delete the reference to Glass as the
prevailing party regarding Tnemec‟s negligence cause of action. As for this appellate
claim, the court‟s ruling is affirmed. Respondents are awarded their costs of appeal.


       5
         To the extent Glass argues that the court‟s correction was not merely clerical, it
does so only regarding this court‟s jurisdiction to consider its appeal. If it intends this to
apply to the merits of its appellate claim, we conclude the argument is tardily made and
should be disregarded. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)


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                                 _________________________
                                 Lambden, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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