Filed 3/4/15 Ellis v. Ellis CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


ROBERT T. ELLIS,                                                     B248860

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BD506532)
         v.

ISABEL M. ELLIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Christine
W. Byrd, Judge. Dismissed.
         Allan L. Dollison, for Defendant and Appellant.
         Gallagher & Moore, Shannon Gallagher; Keith E. Dolnick for Plaintiff and
Respondent.
                                    INTRODUCTION

       Respondent Robert Ellis filed a petition to dissolve his marriage to appellant Isabel
Ellis on May 27, 2009. 1 Following a court trial on the dissolution, the court entered
judgment on March 11, 2013. A second judgment was entered on March 18, 2013; it
made handwritten changes to a single paragraph of the original. Then, on May 15, 2013,
the court issued an order directing the clerk to make additional modifications to the
judgment. On May 17, 2013, Isabel filed her notice of appeal, listing and attaching only
the second, March 18, 2013 judgment. Robert contends that Isabel’s time to appeal runs
from the original judgment entered on March 11, 2013, and her appeal is therefore
untimely. We agree and dismiss the appeal.
                     FACTUAL AND PROCEDURAL HISTORY
       We relate herein only the background information necessary to resolve the
timeliness issue presented. The parties were married on June 19, 1999. Robert filed a
petition to dissolve the marriage on May 27, 2009. Following a six-day court trial
conducted between September 2011 and June 2012, the court issued a Tentative
Statement of Decision on November 28, 2012. Therein, the court ordered Robert to
prepare and submit a judgment in accordance with the court’s decision and the parties’
partial settlement agreement, to be submitted to Isabel’s counsel for review and approval
or objection. Robert lodged his proposed judgment on January 17, 2013, indicating that
Isabel and her counsel had refused to approve the draft.
       Robert’s proposed judgment was entered by the court as the judgment on March
11, 2013, and the Notice of Entry of Judgment was filed and served on the parties by the
clerk the same day. The judgment addresses, among other things, the division of the
parties’ assets in contention, the award of spousal support to Isabel, and the contribution
by Robert to Isabel’s attorney’s fees and costs.
       On March 18, 2013, the court entered a second judgment, with the Notice of Entry
of Judgment filed and served by the clerk the same day. The second judgment, which is

1
       The parties will be referred to as Robert and Isabel because they share a surname.
                                             2
not labeled as “amended,” “modified,” or “corrected,” is identical to the first judgment,
except for handwritten changes to a single paragraph.2 Paragraph 12 in the original
judgment provided: “[o]nce all property is divided at trial or by further stipulation, an
equalizing payment shall be paid to [Isabel] in an amount yet to be determined.” The
revised paragraph 12 in the second judgment read: “[a]ll property to be divided shall be
divided forthwith and equalizing payment shall be paid to [Isabel] within thirty (30) days
after entry of judgment.”
       Isabel filed a motion to correct the judgment on April 9, 2013, noting that the
parties had previously agreed to an equalizing payment related to the division of their
Individual Retirement Accounts (IRAs), and thus seeking to modify the judgment to add
language that the division of the IRAs was subject to the equalizing payment from Robert
to Isabel. The court issued an order on May 15, 2013, granting Isabel’s motion and
ordering the clerk to correct the judgment3 by adding language that the division of the
IRAs was subject to the equalizing payment and further modifying paragraph 12 to read:
“[a]ll property to be divided under this Judgment shall be divided forthwith and in no
case later than ten (10) days from the date of this Order, and any equalizing payment
shall be calculated as set forth below and paid to [Isabel] no later than
September 1, 2013. . . .” The order further added several subparagraphs setting forth
requirements for the calculation of the equalizing payment and the payment of the same.
       Isabel, who is a licensed California attorney, filed her notice of appeal in pro per
on May 17, 2013. While it was filed two days after the court issued its May 15, 2013
order correcting the judgment, the notice of appeal listed and attached only the March 18,
2013 judgment.



2
       The record contains no explanation for the court’s issuance of two judgments in
seven days, apart from the revision made to the second judgment itself. In any event,
neither party disputes that both judgments were properly entered and served.
3
       The court in this order states that “[j]udgment in this matter was entered on March
18, 2013.” There is no reference to the original judgment entered on March 11, 2013.
                                              3
       Robert filed a motion to dismiss the appeal on April 25, 2014, arguing that the
notice of appeal was untimely as to the March 11, 2013 judgment. Isabel, represented by
counsel, opposed.4 In an order signed by Acting Presiding Justice Willhite, we
summarily denied the motion.5
                                       DISCUSSION
       A. The March 18, 2013 Judgment Did Not Substantially Modify the Original
Judgment
       “Compliance with the time for filing a notice of appeal is mandatory and
jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must
dismiss the appeal.” (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th
579, 582; see also California Rules of Court, rule 8.104(b) [“[N]o court may extend the
time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must
dismiss the appeal.”].) California Rules of Court, rule 8.104(a)(1), contains the

4
       The Notices of Entry of both the March 11 and March 18, 2013 judgments were
served on Isabel’s trial counsel as her counsel of record. In her declaration submitted in
opposition to Robert’s motion to dismiss the appeal, Isabel claimed she never received
notice of the March 11, 2013 judgment from her then-counsel and that she therefore had
“always been informed and believed that the 3-18-13 judgment was the one and only
Judgment in this case.” It is unclear from the record when Isabel’s trial counsel ceased
representation of her or when she engaged her current appellate counsel—she filed her
notice of appeal in pro per but at that time was already using her current counsel in some
capacity, including assistance with her with her April 2013 motion to correct the
judgment. She did not repeat this argument in her opening or reply briefs on appeal.
Instead, she complains that she was forced to “pick and choose” which judgment to
appeal and implies that she was confused by the court’s filing of two judgments one week
apart.
5
        Of course, a summary denial of a motion to dismiss an appeal does not “preclude
later full consideration of the issue, accompanied by a written opinion, following review
of the entire record and the opportunity for oral argument.” (Kowis v. Howard (1992) 3
Cal.4th 888, 900, overruling the contrary holding in Pigeon Point Ranch, Inc. v. Perot
(1963) 59 Cal.2d 227, 230–231; accord, Dakota Payphone, LLC v. Alcaraz (2011) 192
Cal.App.4th 493, 509, fn. 6 (Dakota Payphone); see also Department of Industrial
Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1023, fn. 6 [summary
denial of motion to dismiss the appeal in an order signed by only one Justice cannot
constitute law of the case].)
                                              4
applicable time period for filing a notice of appeal. It provides that a notice of appeal
must be filed “on or before the earliest of . . . 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.”
        The first Notice of Entry of Judgment reflects service of the document by mail on
Isabel’s counsel of record on March 11, 2013. Accordingly, the last day to appeal the
March 11, 2013 judgment was May 10, 2013. Isabel did not file her appeal until May 17,
2013.
        Isabel contends, however, that her time to appeal did not begin to run until she was
served with the Notice of Entry of the second judgment, on March 18, 2013. The
resolution of this issue turns on whether the second, March 18, 2013 judgment
superseded the original judgment for purposes of rule 8.104. California courts have
articulated the applicable test as whether the revised judgment results in a “substantial
modification” of the judgment. (Dakota Payphone, supra, 192 Cal.App.4th at pp. 504-
508; see also Stone v. Regents of University of California (1999) 77 Cal.App.4th 736,
743-744 (Stone).) If so, the revised judgment supersedes the original and becomes the
one final, appealable judgment in the action. (Dakota Payphone, supra, 192 Cal.App.4th
at p. 504.) If not, any changes are considered to relate back to the original judgment and
the time to appeal runs from the entry of the first judgment. (Ibid.)
        A “substantial modification” is defined as one “materially affecting the rights of
the parties.” (Dakota Payphone, supra, 192 Cal.App.4th at p. 505; see also Stone, supra,
77 Cal.App.4th at p. 744.) In other words, “[t]he 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. . . . Thus, it 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, supra, 192 Cal.App.4th at pp. 506-508.) So, for example,
in Dakota Payphone, the trial court modified the default judgment to strike the portion of
the damages award that was in excess of the damages requested in the complaint. (Id. at

                                               5
p. 499.) While the result reduced the award by over $4 million, the Court of Appeal
noted that the real issue was not the size of the award, but whether the defendant’s right
to appeal was affected by the amendment, and concluded that it was not, stating that
“[t]hough the monetary positions of the litigants have been changed, in doing so the trial
court did not deprive the parties of their ability to challenge any portion of the judgment.”
(Id. at p. 509.) In other words, if “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, 481–482.)
Conversely, courts have found a substantial modification where a judgment was amended
to require payment by the losing party of an additional nine months of costs (Stone,
supra, 77 Cal.App.4th at p. 743), or where a damages award was reduced to account for
the plaintiff’s comparative fault (Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 767
[reduction “materially altered [plaintiff’s] rights of recovery because it changed the
formula used to calculate damages”].)
       We note that some courts have suggested a distinction between a “judicial” change
and a “clerical error” as the test for whether there was a substantial modification. (See,
e.g., Stone, supra, 77 Cal.App.4th at pp. 744–745 [changes that “do not involve the
exercise of the judicial function” are clerical and not substantial]; Torres v. City of San
Diego (2007) 154 Cal.App.4th 214, 222 [“‘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.’ (Eisenberg et al., Cal. Practice
Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56, pp. 3–24 to 3–25.)”].)
We follow the Dakota Payphone and Sanchez courts, among others, in rejecting this
approach, as “some corrections of clerical errors will substantially change the judgment.
Also, all insubstantial changes to judgments do not necessarily involve the correction of
clerical errors.” (Sanchez, supra, 200 Cal.App.4th at p. 766; see also Dakota Payphone,
supra, 192 Cal.App.4th at p. 506; Stone, supra, 77 Cal.App.4th at p. 744 [ultimately
analyzing whether modification “materially affected” the appealing party’s rights].)


                                              6
      Here, Isabel asserts that the amended paragraph 12 of the judgment was a
“substantial change” but does not articulate why that is so.6 We are not persuaded. The
only change the March 18, 2013 judgment made was to establish the timing of the
remaining division of property (“forthwith”) and to set a deadline of 30 days following
entry of judgment for Robert to pay the equalizing payment to Isabel. This modification
thus did not change the amount to be paid, Isabel’s rights to receive any payment, or any
other rights that Isabel would have been unable to raise on appeal from the March 11,
2013 original judgment. As such, the March 18, 2013 judgment did not constitute a
substantial or material change, and the March 11, 2013 judgment remained the final
judgment for the purpose of establishing the time to appeal.7
      Isabel argues that the trial court “ruled” that the March 18, 2013 judgment was the
“one true judgment” and asks that we uphold that result. In support of this contention,
she points to two subsequent orders of the court in which it referred only to the March 18
judgment—the May 15, 2013 order correcting the judgment and an order issued

6
      She also declares, without support, that Robert’s recitation of the “substantial
modification” test urges a “new and unprecedented rule,” but then relies on the same test.
7
        At oral argument, Isabel asserted for the first time that the March 18, 2013
judgment “controls” as the “final” judgment pursuant to Code of Civil Procedure section
557 and Worthington Corp. v. El Chicote Ranch Properties, Ltd. (1967) 255 Cal.App.2d
316 (Worthington). We granted leave for Robert to file a responsive letter brief
addressing this authority, which he did on February 25, 2015. We find Isabel’s argument
unpersuasive. Section 557 simply defines a judgment as the “final determination of the
rights of the parties in an action or proceeding.” Worthington discusses the “rule of
thumb” that where there are two judgments shown in the clerk’s transcript, the latter is
the official judgment with respect to the terms of the judgment, in the absence of a
showing to the contrary. (Worthington, supra, 255 Cal.App.2d at p. 325.) Notably,
Worthington did not address the issue of the timeliness of an appeal but simply confirmed
that there may only be one final judgment in a case. (Ibid.) There is no dispute here
about what language in the March 11, March 18 and May 15, 2013 judgments would
control the rights of the parties. Rather, our analysis focuses on whether the
modifications made in the March 18, 2013 judgment were substantial enough to alter
Isabel’s rights to appeal so that her time to appeal runs from its entry, or whether those
modifications relate back to the original judgment, so that the time to appeal is not
extended. None of Isabel’s cited authority deals with, or alters, this analysis.
                                            7
December 12, 2013, regarding the equalization payment and attorney’s fees. But the
issue of whether the amended judgment was a substantial modification was never before
the trial court and it accordingly never ruled on that subject (nor, of course, would we be
bound by such a ruling in any event). The factual statement by the trial court that
“judgment was entered on March 18, 2013,” without more, does not suggest that the
court even considered the issue. Rather, the court’s recitation of the date of the judgment
simply could have the most recent judgment listed on the docket, or Isabel’s reference to
that date in her moving papers. Moreover, the trial court’s intent in modifying the
judgment, even if we knew what it was, is irrelevant; the focus of our inquiry is whether
that modification affected Isabel’s rights on appeal. Further, Isabel could not have relied
on these statements by the trial court in making a decision on when to appeal, since the
first document in which the court refers to the March 18 judgment was not issued until
May 15, 2013, five days after her notice of appeal was due.
       Isabel next cites to Insyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th
1129 (Insyst) as the case with the “closest . . . set of facts” to the instant case. We
disagree that Insyst is applicable here. Insyst involved the question of whether the time to
appeal ran from the service of an email notice that the judgment had been electronically
filed, with a hyperlink that led to the judgment, or from the Notice of Entry of Judgment
subsequently served by regular mail. (Id. at pp. 1133-1134.) The court concluded that
because the email did not transmit to the parties either a Notice of Entry of Judgment or a
file-stamped copy of the judgment, it did not trigger the 60-day appeal period. (Id. at p.
1140.) This case, unlike Insyst, does not involve a question of the method of
transmission or the adequacy of the notice served, but rather whether a slightly altered
judgment constitutes a “substantial modification” for the purposes of calculating the time
to appeal. Isabel’s claim that Insyst stands for the proposition that “the Court’s errors
were not to be imputed upon the Appellant” is inapposite, both because the decision in
that case did not hinge on any purported error by the court but rather on a careful analysis
of the applicable statutory framework, and because there is no evidence in the record that
the entry and service of either the March 11 or March 18 judgment was the result of an

                                               8
“error” by the court. While it is unfortunate that the circumstances here may have caused
some confusion for Isabel, in the face of a validly served Notice of Entry of Judgment on
March 11, 2013, the prudent course of action would have been to appeal from both the
March 11 and March 18 judgments within the 60-day period running from the original
judgment.8
       Isabel also asks that we “resolve any uncertainties or ambiguities in favor of
preserving the right to appeal,” citing Insyst and Alan v. American Honda Motor Co., Inc.
(2007) 40 Cal.4th 894 (Alan). The court in Insyst did not rely on this principle. (Insyst,
supra, 170 Cal.App.4th at p. 1139.) Alan, similarly, addressed whether various
documents mailed by the clerk satisfied rule 8.104(a)(1). (Alan, supra, 40 Cal.4th at pp.
898-899.) Here, there is no question that the Notice of Entry of Judgment served by the
clerk on March 11, 2013, satisfied the requirements of rule 8.104. Thus, there is no
uncertainty or ambiguity that would allow us to resolve this issue in Isabel’s favor.
       B. Isabel Did Not Appeal From the May 15, 2013 Corrected Judgment
       In the alternative, Isabel argues that the May 15, 2013 judgment constituted a
substantial modification and therefore reset her time to appeal. The critical problem with
this argument, which Isabel does not address, is that she did not include the May 15, 2013
judgment in her notice of appeal. Nor did Isabel’s opening brief assert that she had a
right to appeal from the May 15, 2013 judgment.9 Thus, although we may “liberally
construe” a notice of appeal in favor of a right to appeal, we cannot do so where every
indication in the record is that Isabel intended to appeal from only the March 18, 2013
judgment. (See Norco Delivery Service, Inc. v. Owens–Corning Fiberglas, Inc. (1998)
64 Cal.App.4th 955, 960–961 [notice may be liberally construed in favor of appeal where

8
        The record would have been clearer if the trial court had labeled the March 18
judgment as an “amended” judgment. However, it would not change our determination
that the revised March 18, 2013 judgment was not a “substantial modification” of the
March 11, 2013 judgment.
9
      Isabel’s opening brief was filed following Robert’s briefing on his motion to
dismiss this appeal, in which he argued that Isabel had failed to appeal from the May 15,
2013 judgment.
                                             9
“the faulty notice of appeal engenders no prejudice and causes no confusion concerning
the scope of the appeal.”].) Our jurisdiction is “limited in scope to the notice of appeal
and the judgment appealed from. [Citation.]” (Dakota Payphone, supra, 192
Cal.App.4th at p. 504.) Isabel’s notice of appeal squarely implicates only the March 18,
2013 judgment and is therefore untimely.
                                      DISPOSITION
       This appeal is dismissed as untimely. In the interests of justice, the parties are to
bear their own costs on appeal. (California Rules of Court, rule 8.278(a)(5).)


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                       COLLINS, J.

We concur:



WILLHITE, Acting P. J.


MANELLA, J.




                                             10
