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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
[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
1 All further rule references are to the California Rules of Court.
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appellate courts may extend or shorten the time for appeal [citation], even to
relieve against mistake, inadvertence, accident, or misfortune [citations].’
(Estate of Hanley (1943) 23 Cal.2d 120, 123.)” (Rowan v. Kirkpatrick (2020)
54 Cal.App.5th 289, 294 (Rowan).)
Where, as here, a party serves a notice of entry of judgment, to be
timely, the notice of appeal from that judgment must be filed on or before 60
days after service of the notice. (Rule 8.104(a)(1)(B).) “Except as provided in
rule 8.66, no 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.” (Rule
8.104(b).) Rule 8.66 provides in relevant part: “If made necessary by the
occurrence or danger of . . . [a] public health crisis, or other public
emergency . . . , the Chair of the Judicial Council, notwithstanding any other
rule in this title may: [¶] (1) Toll for up to 30 days or extend by no more than
30 days any time periods specified by these rules; or [¶] (2) Authorize
specified courts to toll for up to 30 days or extend by nor more than 30 days
any time periods specified by these rules.”
First, appellant’s reliance on Emergency rule 9 to justify the untimely
filing of his notice of appeal is misplaced. That rule provides in relevant part:
“Notwithstanding any other law, the statutes of limitations and repose for
civil causes of action that exceed 180 days are tolled from April 6, 2020, until
August 3, 2020.” (Emergency rule 9(a).) By its terms, this rule applies only
to statutes of limitations and repose for the commencement of civil actions, not
to other deadlines such as the one at issue here. (See Judicial Council of Cal.,
Advisory Com. com., Emergency rule 9 [“Emergency rule 9 is intended to
apply broadly to toll any statute of limitations on the filing of a pleading in
court asserting a civil cause of action”].)
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Second, appellant relies on rule 8.66, arguing that “[i]n December 2020,
[he], as did many litigants in California, understood the public health state of
emergency, constant change in court operations, and emergency orders of the
Judicial Council to reflect a triggering public health crisis under [rule] 8.66,
making available an extension of up to 30 days for [appellant’s] deadline to
file his notice of appeal.” While there were such emergency orders in effect
early in the pandemic, appellant does not cite to any orders that were in
effect during the time period relevant to the deadline for filing his notice of
appeal, i.e., October 2020 to December 2020. (See Rowan, supra, 54
Cal.App.5th at pp. 292–293 [citing emergency orders issued by the Judicial
Council pursuant to rule 8.66, extending filing deadlines falling between
Mar. 17, 2020 and May 18, 2020 by 30 days]; see also Contra Costa County
Emergency Orders of Mar. 13, 2020; Apr. 2, 2020; & Apr. 29, 2020 [general
orders stating that, for purposes of computing time for filing papers with
court under Code of Civil Procedure sections 12 and 12a, dates from Mar. 16
to May 28, 2020 “are deemed holidays,” pursuant to Government Code section
68115, subdivision (a)(5)] Superior Court of Cal., Contra Costa County,
Implementation of Statewide Orders [as of Mar. 29, 2021].) Thus, there are no
applicable orders that would extend the time within which appellant was
required to file a notice of appeal.
Third, appellant argues that court closures, hardships his counsel
suffered, and lack of prejudice to respondent should excuse the late filing of
his notice of appeal. Appellant first points out that the Contra Costa County
Superior Court was closed to the public for several weeks in December 2020.
However, during that closure, parties could, and were expected to, timely file
all documents via drop box or mail. (Superior Court of Cal., Contra Costa
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County Limited Court Closure Beginning Monday, Dec. 7, 2020 (Dec. 4, 2020)
[as of Mar. 29, 2021].) Appellant next states that his
attorney’s office was closed in December 2020, in response to the California
Department of Public Health’s Regional Stay at Home Order. (Cal. Dept. of
Health, State of Cal. Health and Human Services Agency, Regional Stay at
Home Order (Dec. 3, 2020), [as
of Mar. 29, 2021].) However, this does not excuse appellant from the
jurisdictional deadline for filing his notice of appeal, even during a
challenging time when many people were working from home. In short,
appellant has not shown that the December 2020 closure of the superior court
or his attorney’s office justified his failure to file a timely notice of appeal.
Appellant’s notice of appeal was filed 61 days after electronic mail
service of the notice of entry of judgment.2 As noted, no emergency orders
were then in effect that would extend the 60-day deadline set forth in rule
8.104(a)(1)(B) and appellant has not shown that he was otherwise excused
from filing a timely notice of appeal. Consequently, we have no jurisdiction
to consider appellant’s appeal. (See rule 8.104(b); Rowan, supra, 54
Cal.App.5th at p. 294.)
DISPOSITION
Respondent’s motion to dismiss appellant’s appeal is granted.
2Electronic service of notices and other documents was permitted on
October 29, 2020, when respondent filed its notice of entry of judgment. (See
Emergency rule 12(b)(1), Amendments to Cal. Rules of Court, adopted by
Judicial Council of Cal. Apr. 16, 2020, eff. Apr. 17, 2020
[as of Mar. 29, 2021].)
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_________________________
Stewart, Acting P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Yuzon v. Contra Costa County Community College District (A161834)
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