Yuzon v. Contra Costa County Community College Dist. CA1/2

Filed 3/29/21 Yuzon v. Contra Costa County Community College Dist. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ZION YUZON, Plaintiff and Appellant, v. A161834 CONTRA COSTA COUNTY COMMUNITY COLLEGE (Contra Costa County DISTRICT, Super. Ct. No. MSC17-00618) Defendant and Respondent.

Respondent Contra Costa Community College District has moved to dismiss the appeal of appellant Zion Yuzon on the ground that his notice of appeal was untimely. We agree that the notice of appeal was untimely, and shall therefore dismiss the appeal. BACKGROUND According to the parties, this matter arises from an incident in March 2016, in which appellant suffered an injury to his left eye when a glass beaker shattered during a science demonstration by an employee of Mad Science of Mt. Diablo, which took place at Diablo Valley College. In June 2018, respondent’s demurrer to appellant’s first amended complaint was sustained without leave to amend, which led to dismissal of appellant’s cause of action for dangerous condition of public property.

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On September 4, 2020, the trial court entered an order granting respondent’s motion for summary judgment on appellant’s sole remaining cause of action against respondent for negligence. Notice of entry of that order was served on appellant on September 11, 2020. Judgment of dismissal was entered in favor of respondent on October 21, 2020. On October 29, 2020, respondent served appellant with notice of entry of judgment of dismissal via electronic service. On December 29, 2020, appellant filed a notice of appeal. DISCUSSION Respondent contends the present appeal must be dismissed because the deadline for filing a notice of appeal was December 28, 2020, but appellant did not file his notice of appeal until the following day, December 29. (See Cal. Rules of Court, rule 8.104(a)(1)(B), (b).)1 Appellant does not dispute that his notice of appeal was filed 61 days after service of the notice of entry of judgment. He argues, however, that the notice of appeal was in fact timely filed under emergency rules promulgated by the Judicial Council as a result of the COVID-19 pandemic (Judicial Council of Cal., Emergency Rules Related to COVID-19 <https://www.courts.ca.gov/documents/appendix-i.pdf> [as of Mar. 29, 2021]) and that ambiguities regarding the effect of those rules should not be interpreted against him, particularly because respondent has suffered no prejudice. “ ‘[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.’ (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) ‘In the absence of statutory authorization, neither the trial nor