Defensive Non-Appeals

Francis v. City of L.A., No. B301021 (D2d1 Jul. 22, 2022)

The City of L.A. won a jury verdict in a retaliation case brought by a forensic criminologist with the LAPD. At the close of Plaintiff’s case the City had moved for nonsuit, which the trial court denied. Plaintiff appeals on some instructional issues. In response, the City argued, among other things, that the non-suit should have been granted.

Plaintiff argues that the City needed to cross-appeal to make that argument. But that’s not right. The denial of a nonsuit is not appealable, and the City couldn’t take an appeal from the judgment, which was in its favor. It was not a “party aggrieved.” Code Civ. Proc. § 902. But what the City can do is raise a nonappealable interim issue like a denied non-suit to show the absence of prejudice arising from an error asserted by the appellant. See § 906. That is, if the Plaintiff failed to come forward with substantial evidence as to an element of her claim, she wasn’t going to win even if the jury instructions were perfect. 

Which is the case here. Retaliation requires proof that the defendant took an adverse employment action. The stuff Plaintiff pointed to did not rise to the level of that.

Affirmed.