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DISCUSSION

I

Timeliness of Roel's Appeal

            Unless otherwise provided by law, a notice of appeal must be filed on or before the earliest of three dates:  (1) 60 days after the court clerk serves a notice of entry of judgment or a file-stamped copy of the judgment on the appealing party, (2) 60 days after the appealing party serves or is served by the opposing party with a notice of entry of judgment, or (3) 180 days after entry of judgment.  (Cal. Rules of Court, rule 8.104(a).)  "If a notice of appeal is filed late, the reviewing court must dismiss the appeal."  (Id., rule 8.104(b).)  On our own motion, we asked the parties to brief the issue of whether Roel's notice of appeal was untimely because it was not filed within 60 days of service of notice of entry of the original judgment.

            "In the case of a civil judgment, the period for filing a notice of appeal is not extended by an amendment that corrects a clerical error, but it is extended by an amendment that effects a substantial or material change or involves the exercise of a judicial function or judicial discretion."  (Nestlé Ice Cream Co., LLC v. Workers' Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, 1109, italics added (Nestlé).)

            " ' "[I]f 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." ' "  (Nestlé, supra, 146 Cal.App.4th at p. 1110.)  If the amendment substantially changes the judgment or involves the exercise of a judicial function or judicial discretion, the amended judgment supersedes the original and becomes the appealable judgment since there can only be one "final judgment" in an action.  (Ibid.)  "Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment."  (Ibid.)

            Most of the changes in the amended judgment were made to correct computational, or clerical, errors.  The amended judgment, however, also addressed a legal issue pertaining to Roel's right to an offset against prejudgment interest awarded Great Western on its undisputed contract damages, and thus it involved the judicial function.  Further, the court's error in not originally allowing an offset was made in rendering the judgment rather than recording the judgment.  "In determining whether an amendment to a judgment is clerical in nature, the question is ' "whether the error [corrected] was made in rendering the judgment, or in recording the judgment rendered." ' "  (Nestlé, supra, 146 Cal.App.4th at p. 1110.)  Even though the amended judgment improved Roel's position on the offset issue, and arguably gave it less reason to appeal than the original judgment, we conclude its notice of appeal was timely.

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