Opinion
A151171
07-17-2018
LEILANI VIANA, Plaintiff and Appellant, v. KQED, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC15549593) MEMORANDUM OPINION: BY THE COURT:
We resolve this case by a memorandum opinion pursuant to California Rules of Court, Standard 8.1, which provides that a memorandum opinion is appropriate when an appeal "rais[es] factual issues that are determined by the substantial evidence rule.
Before Pollak, Acting P.J., Siggins, J., and Jenkins, J. --------
The motion of defendant and respondent, KQED, Inc., to dismiss the appeal of plaintiff and appellant Elizabeth Medina is granted.
Judgment was entered in favor of KQED and against plaintiffs Medina and Leilani Viana on February 7, 2017. Viana filed a timely notice of appeal on March 1. Medina did not file a notice of appeal and she is not named on the notice filed by Viana. More than a year later, in correspondence between counsel related to a request for an extension of time, appellant's counsel for the first time asserted that "[b]oth Plaintiffs Leilani Viana and Elizabeth Medina are appealing the trial court's judgment."
KQED moves to dismiss Medina's appeal as jurisdictionally barred by her failure to file a notice of appeal. Medina acknowledges she did not file a separate notice of appeal, but asserts we must liberally construe Viana's notice of appeal to include her as an additional appellant. We may not. Courts of appeal must liberally construe notices of appeal to protect the right of appeal if two requirements are met: it must be reasonably clear from the notice what the appellant was trying to appeal, and the respondent " 'could not possibly have been misled or prejudiced.' " (In re Joshua S. (2007) 41 Cal.4th 261, 272; Cal. Rules of Court, rule 8.100)(a)(2) .) Medina cannot satisfy the first requirement. The only notice of appeal filed in this case unambiguously identifies Viana as the sole party appealing the judgment. Medina nonetheless suggests it was "reasonably clear" that she, too, meant to appeal because the trial court's order granted summary judgment as to both plaintiffs and on related, albeit not identical, employment discrimination claims. But not every losing litigant decides to pursue an appeal, and nothing in Viana's notice of appeal suggests that more than one party was appealing the judgment. Medina argues that a reference to "Leilani Viana, et al." in the box for "plaintiff/petitioner" on appellant's designation of the record on appeal (filed after the deadline to file a notice of appeal) indicated that Medina, too, was an intended appellant, but we disagree—particularly since the same document designated for inclusion in the record the "Notice of Appeal Filed by Appellant Viana." (Italics added.)
In short, the record provides no basis to construe the notice of appeal filed by Viana to also encompass an appeal by Medina. "[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; Cal. Rules of Court, rule 8.104(b).) Dismissal is required.
DISPOSITION
Medina's purported appeal is dismissed. The appeal shall proceed with Viana as the sole appellant.