Ellis v. EllisEllis v. Ellis
- Reporters:
- ,
- Before:
- Willhite, Collins, Manella
Allan L. Dollison, for Defendant and Appellant.
Gallagher & Moore, Shannon Gallagher; Keith E. Dolnick for Plaintiff and Respondent.
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 cоurt 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 аnd 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
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 аn 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 fоrth 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.
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
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
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 substantiаl 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
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 cleriсal 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].)
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
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
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
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
DISPOSITION
This appeal is dismissed as untimely. In the interests of justice, the parties are to bear their own costs on appeal. (
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
It is ordered that the opinion filed herein on March 4, 2015 be modified as follows:
On pagе 2, third paragraph, first sentence, insert the “court” before the word “clerk” so that the sentence reads:
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 court clerk the same day.
On page 2, third paragraph, in the second sentence that begins “The judgment” change “addresses” to “addressed.” So that the sentence reads: The judgment addressed among other things, the division of the pаrties’ assets in contention, the award of spousal support to Isabel, and the contribution by Robert to Isabel‘s attorney‘s fees and costs.
On page 2, fourth paragraph, second sentence which begins: “The second judgment,” remove “as” so the sentence reads: The second judgment, which is not
On page 3, in the first sentence of the first full parаgraph, change the order of “had previously” so that the sentence reads: Isabel filed a motion to correct the judgment on April 9, 2013, noting that the parties previously had 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.
On page 3, second paragraph, first sentence, add periods after pro and per, so that the sentence reads: Isabel who is a licensed California attorney, filed her notice of appeal in pro. per. on May 17, 2013.
On page 4, second paragraph, in the parenthetical, abbreviate California Rules of Court, so that the citation reads: (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582; see also
On page 4, footnote 4, the third sentence at line 7, change “representation” “to representing” and delete “of,” in line 8, insert periods after “pro” and “per” and in line 9, delete the second “with her” so that the sentence reads: It is unclear from the record when Isabel‘s trial counsel ceased representing 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.
On page 4, footnote 5, linе 5, in the citation that begins after first full sentence, delete italics from “accord” and in line 8, change the word “Justice” from upper case to lower case so that the citation reads:
(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
On page 5, second full paragraph, the sentence that begins “If so,” delete “one” so that the sentenсe reads: If so, the revised judgment supersedes the original and becomes the final, appealable judgment in the action.
On page 6, at the end of the first paragraph, add “(Sanchez.)” after the brackets so that the sentence reads: 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 plаintiff‘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“] (Sanchez).)
On page 7, footnote 7, line 2, add a comma after Code of Civil Procedure so that the sentence reads: At oral argument, Isabel asserted for the first time that the March 18, 2013 judgment “controls” as the “final” judgment pursuant to
At line 13 of the same footnote, the sentence that begins with “There is” add a comma after March 18 so that the sentence reads: 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.
On page 8, in the first paragraph, the sentence that begins “Rather, the court” insert the word “reflected” between the words “have” and “the” so that the sentence reads:
Rather, the court‘s recitation of the date of the judgment simply could have reflected the most recent judgment listed on the docket, or Isabel‘s reference to that date in her moving papers.
On page 8, of the first full paragraph, in the sentence at line 12 that begins “Isabel‘s claim that” insert the word “here” between the words “record” and “that” so that the sentence reads:
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 here that the entry and service of either the March 11 or March 18 judgment was the result of an “error” by the court.
On page 9, first full paragraph, the third sentence beginning “Alan, similarly,” insert California Rules of Court, after the word “satisfied” so that thе sentence reads: Alan, similarly, addressed whether various documents mailed by the clerk satisfied
In the same paragraph in the sentence that begins “Here, there” delete the comma after March 11, 2013 so that the sentence now reads:
Here, there is no question that the Notice of Entry of Judgment served by the clerk on March 11, 2013 satisfied the requirements of
On page 9, line 1 of footnote 8, delete the extra space between the words “if” and “the.”
The opinion in the above-entitled matter filed on March 4, 2015, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
COLLINS, J. WILLHITE, Acting P.J. MANELLA, J.