FRANKLIN CAPITAL CORPORATION v. WILSON

Filed 2/28/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an appealable order of the Superior Court of Orange County, Steven L. Perk, Judge. Reversed and remanded with directions.

Brewer & Brewer, Templeton Briggs and James R. Knoles for Plaintiff and Appellant.

Steinberg, Nutter & Brent and Paul M. Brent for Defendants and Respondents.

* * *

I. INTRODUCTION

After the attorney for the plaintiff failed to appear for a mandatory settlement conference, the trial court set an order to show cause hearing (OSC) in regard to dismissal or other sanctions. The day before that hearing, the plaintiff voluntarily dismissed its case without prejudice pursuant to section 581, subdivision (b)(1) of the Code of Civil Procedure. Nevertheless, the court held the hearing, at which it vacated the voluntary dismissal without prejudice and entered, in its stead, a new dismissal, by the court, with prejudice. This appeal is from the order denying the plaintiffs latter motion to vacate the new dismissal with prejudice.

We must reverse. By its terms, section 581, subdivision (b)(1) confers on plaintiffs the right to dismiss anytime prior to the commencement of trial. As we explain below, a mandatory settlement conference, or an ensuing OSC re dismissal or other sanctions for failure to appear at that mandatory settlement conference, does not in any way implicate the commencement of trial. The plaintiff had the statutory right to dismiss its case without prejudice, even on the eve of the hearing.

Also, even if the plaintiff did not have the right to dismiss without prejudice, it is clear that the trial court had no right to dismiss the case with prejudice on its own. As we explain below, the dismissal for failure to attend the mandatory case management conference was essentially a dismissal for failure to prosecute, and the statute and Supreme Court authority make clear that a dismissal for failure to prosecute is without prejudice.

II. FACTS

In November of 2003, Franklin Capital Corporation filed this garden-variety debt collection action against defendant Douglas Wilson (a complaint for breach of contract regarding default on an outstanding loan balance of some $57,000), but by the Spring of 2004 counsel for Franklin must have been preoccupied with other things, because he basically went inert as far as Franklins case was concerned.[1]

To be precise: On March 2, 2004, counsel for Franklin failed to appear at a case management conference. That order was vacated (errant mail service), but counsel had a relapse of his aversion to case management conferences on April 13, prompting the court to issue an OSC contemplating dismissal. Counsel failed to appear at the OSC (this particular OSC was not the OSC that would prompt this appeal), and in fact the case was dismissed. Franklins counsel managed to have the dismissal set aside in September, albeit with a $900 sanction. Then Franklin actually moved for summary judgment, but, true to form, failed to show up at the hearing on his motion, so it was denied.

In late April defendant Wilson filed a motion to dismiss for delay in prosecution, essentially relying on what litigators used to call the two-year rule (cf. Code Civ. Proc,  583.410 [discretionary authority to dismiss for delay in prosecution] with  583.420, subd.(a)(2)(B) [no authority to dismiss for delay in prosecution prior to two years having gone by from filing without the case having been brought to trial]) arguing that, under factors set out in rule 373 (now 3.1342) of the California Rules of Court, discretionary dismissal was appropriate.[2]

On May 6, 2005 counsel for Franklin failed to appear at a mandatory settlement conference -- ironically, one requested by Franklin -- and that day the trial court once again issued an OSC re Dismissal and/or sanctions, setting the hearing for May 19.

The minute order did not mention any authority on which the trial courts OSC would proceed. However, two days before the hearing, defendant Wilsons attorney filed a declaration in support of dismissal of action which incorporated the late April motion to dismiss under section 583.410 [lack of prosecution after two years have passed since filing without case having been brought to trial].

The day before the hearing, May 18, Franklins counsel filed a voluntary dismissal without prejudice with the court clerk.

Counsel didnt show up at the hearing the next day, so the court ordered a dismissal with prejudice. While the court, in its minute order, cited no statutory or case authority for its action, it indicated that the dismissal was for lack of prosecution, though it also alluded to counsels failure to comply with the previous order to pay sanctions of $900.[3] The court entered an unsigned minute order of dismissal with prejudice on May 19 (as distinct from a signed final order of dismissal under section  581d [all dismissals must be in writing signed by the court]).

In late August, after an aborted attempt to file a new action in July,[4] Franklin filed a motion to vacate the dismissal on the grounds of lack of jurisdiction for the trial court to do what it did on May 19. That motion was denied in a hearing on September 23. While the trial court again did not mention any specific statutory or case authority for its decision, it clearly alluded to a body of case law, which we discuss in detail below, which the trial court read as precluding voluntary dismissals in the face of any dispositive action.[5] The denial of the motion to vacate was filed September 26, and the October 3 notice of appeal is timely.[6]

III. DISCUSSION

A. Did the Pending Court-Initiated OSC to Dismiss

or Impose Other Sanctions Because of the Failure to

Attend the Mandatory Settlement Conference Cut Off Plaintiffs

Right to Dismiss Voluntarily? No.

1. The Statute Controls

While the case law (which we discuss in detail below) is extensive, we must remember that the right of a plaintiff to dismiss its case voluntarily and without prejudice is set forth in a statute, and all permutations of circumstances on the subject flow from that statute. The statute is Code of Civil Procedure, section 581, subdivision (b)(1), which provides: An action may be dismissed in any of the following instances: [] (1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any. (Italics added.) In essence, then, all cases which deal with voluntary dismissals are glosses on the words, commencement of trial.

In terms of the case before us, it would seem obvious that a mandatory settlement conference is not the commencement of trial in any sense of the phrase. By definition no adjudication is contemplated at a settlement conference. And it would seem likewise obvious that an ensuing OSC re dismissal or sanctions for failure to appear at such a conference would not implicate the idea of commencement of trial. Again, nothing like adjudication of the merits happens at an OSC conducted in the wake of a failure to appear at a mandatory settlement conference.

We should also mention at this point that the statute also contains a definition of what constitutes a trial. The definition is found in subdivision (a)(6) of section 581. It reads: (a) As used in this section:  . . . .  [] (6) Trial. A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.

If subdivision (a)(6) set forth the exclusive criteria for the concept of commencement of trial we might end this opinion right here. Quite obviously an OSC re failure to appear at a mandatory settlement conference does not fit any of the three specified acts for determining whether trial has actually commenced.

On its face, however, the language in subdivision (a)(6) is not exclusive -- it tells you that some things constitute a trial but it doesnt say that those are the only things that constitute a trial -- and in any event the issue of its exclusivity was dispositively settled against exclusivity by our Supreme Court in Wells v. Marina City Properties, Inc., supra, 29 Cal.3d 781, 784-788. As the Wells case shows, the trial shall be deemed language had been added to the statute in 1947, though then the language was in the last sentence of subdivision 1 of section 581. The specific question in Wells was whether that language, as well as the addition of the word commencement as in commencement of trial set up a new and exclusive test, preserving the right of voluntary dismissal until the occurrence of one of the specific acts deemed by subdivision 1 to constitute the actual commencement of trial such that a voluntary dismissal after a general demurrer had been sustained and the time to amend had expired might be valid. (Wells, supra, 29 Cal.3d at p. 786.) Answer: No. The court said the 1947 amendment with its trial shall be deemed language did not address the question of when the trial of an issue of law commences. (See id. at pp. 787-788 [Accordingly, we are unable to agree with plaintiffs contention that the 1947 amendment erased or diluted the Goldtree rationale. It is reasonable to conclude that the 1947 amendment to section 581, subdivision 1, did not address the issue before us, namely, when does the trial of an issue of law commence? (All original emphasis.)].)

In the wake of Wells, a substantial and fairly complex body of case law has grown up involving when -- and when not -- a plaintiffs statutory right to dismiss pursuant to section 581, subdivision (b)(1) is cut off by the presence of some impending dispositive procedure. Indeed, defendant Wilson in this case urges us to affirm the trial courts refusal to vacate its dismissal with prejudice precisely because of the voluntary dismissal while a dispositive proceeding (the OCS re dismissal or sanctions) was pending. In order not to run afoul of this case law we are required to map its relevant boundaries.

2. The Supreme Court Cases

Despite the non-exclusivity of subdivision (a)(6), the basic right to voluntarily dismiss remains statutory, with the operative benchmark being the phrase commencement of trial in subdivision (b)(1). So we will begin at the beginning, with the first major Supreme Court case limiting the statutory right to dismiss, Goldtree v. Spreckels (1902) 135 Cal. 666. Goldtree, decided when the statute merely said trial, was essentially a gloss on that word.

In Goldtree, the high court held that a voluntary dismissal without prejudice had no effect on two causes of action that had previously been the subject of a sustained demurrer without subsequent amendment. The court reasoned that the demurrer, challenging the sufficiency of the facts, went directly to the determination of the rights of the parties, and that was to be considered a trial. (Goldtree v. Spreckels (1902) 135 Cal. 666, 670-671.)

While most of the Goldtree opinion was an exposition on how the word trial as used in the statute encompasses the adjudicatory process of consideration of a demurrer (see Goldtree, supra, 135 Cal. at pp. 669-673), the court alluded to an argument rooted in judicial policy, by quoting a passage from State v. Scott (Neb. 1888) 36 N.W. 121, 126, the gravamen of which was: There has to be an end to litigation. However -- and this point will be important later on when we address some of the Court of Appeal decisions limiting the otherwise absolute right to dismiss -- the high court did not stray from the benchmark of the word trial as used in the statute. The connection to the statutory word trial was made by linking the common sense idea that litigation must end to the more technical idea that an initialsubmission of the merits of the case to the trial court terminates the right to dismiss because that submission is a trial.[7]

The next major Supreme Court case addressing any limitations on the right to voluntarily dismiss without prejudice was the Wells case, which we have already discussed as regards its dealing with the 1947 amendments to the dismissal statute, both adding the commencement of phrase and the shall be deemed language.

In Wells, there was a demurrer to the plaintiffs second amended complaint, plaintiff was given leave to amend but didnt. The defendant then filed a motion to dismiss the case with prejudice, and the plaintiff then quickly filed a request for dismissal of the action without prejudice. The trial court granted the motion for dismissal with prejudice, then reversed itself and granted plaintiffs motion to set aside the dismissal with prejudice. There was an appeal by the defendant from the last order, and the high court reversed, holding that the case should have been dismissed with prejudice. (See id. at pp. 784-789.) The court noted that the defendant was entitled to an appealable judgment with prejudice if its demurrer was successful. (See id. at p. 785.)[8]

The thrust of the Wells opinion is (in addition to the demonstration that the shall be deemed language was not exclusive) a demonstration that, as between (1) the apparently absolute right to dismiss without prejudice afforded by the controlling statute (and it was the Wells opinion that first put the word absolute in quotes), and (2) the countervailing statutory right of a defendant to obtain a dismissal with prejudice after a court has sustained a demurrer with leave to amend and there has been no amendment, the latter takes precedence. The alternative -- a truly absolute right to dismiss even after a demurrer had been sustained without the possibility of cure by amendment -- made neither good sense nor good law. (Wells, supra, 29 Cal.3d at p. 788.) Despite (or consonant with) the fact that Wells court held that the shall be deemed language was non-exclusive, the focus of the Wells court was still on the statutory word trial. (See id. at pp. 785-788 [demonstrating that two appellate decisions[9] did not undermine the Goldtree definition of trial, despite the 1947 amendment changing trial to commencement of trial].)

A final Supreme Court case that (judging from subsequent appellate decisions) has not received perhaps quite as much attention as Wells is Christensen v. Dewor Developments (1983) 33 Cal.3d 778. The result in Christensen cut in the opposite direction of Goldtree and Wells, holding that the dismissal there was an effective dismissal.

Read alongside Wells, Christensen provides a relatively complete picture of our Supreme Courts essential approach to the subject: Statutory language still controls. That is, courts must look to when trial -- granted, trial including trials of issues of law -- begins.

Christensen arose out of an anomalous strategy (the courts word was strange, see Christensen, supra, 33 Cal.3d at p. 781) by a plaintiff to compel arbitration of a construction dispute by filing a complaint, as distinct from a straightforward petition to compel arbitration. The idea was to obtain the kind of discovery from the defendants of their defenses and position that would not normally be available to a litigant in straight arbitration. (See ibid.) The novel strategy backfired, however, when the defendants filed a demurrer, and things became still worse for the plaintiffs when the trial court sustained the demurrer to all causes of action save one, and that one was struck on the courts own motion. (Ibid.) The plaintiffs then filed a trimmed-down amended complaint still asserting that the dispute should be arbitrated and the defendants demurrered again, arguing that the plaintiffs had been too clever by half. The defendants asserted that the plaintiffs had waived their right to insist on arbitration. So, one day before the hearing on this second demurrer, the plaintiffs dismissed their complaint without prejudice. (The defendants did not go through with the hearing on their demurrer.)

Two months later, the plaintiffs filed a petition to compel arbitration. The trial court reasoned that the bad faith of the plaintiffs having the ulterior motive of obtaining (otherwise unavailable) discovery effectively waived the right to arbitrate. (Christensen, supra, 33 Cal.3d at p. 781.) For their part, the defendants moved to vacate the earlier, nonprejudicial dismissal by the plaintiffs and enter a new dismissal with prejudice. The trial court denied that motion. Both sides appealed, and the case was eventually taken by the Supreme Court.

The first part of the opinion showed that the trial courts conclusion as to the waiver issue was correct -- the plaintiffs procedural gamesmanship showed that the action indeed had been filed in bad faith and by doing so they had waived their right to arbitrate. (See Christensen, supra, 33 Cal.3d at pp. 783-784.)

But there was still the question of whether the plaintiffs had properly dismissed their complaint without prejudice. (Christensen, supra, 33 Cal.3d at p. 784.) Moving in for the kill, the defendants asserted that the trial court incorrectly denied their motion to vacate the earlier nonprejudicial dismissal order and substitute a new dismissal with prejudice -- a result that, as the Christensen court observed, would leave the plaintiffs without any remedy whatsoever. (Ibid.)

Resolution of the issue centered on an often-quoted[10] passage from Wells, which we include (as quoted by Christensen) in the margin.[11]Christensen rejected an interpretation proffered by the defendants that the sustained demurrer to the original complaint locked in a result adverse to the plaintiff, so that after a demurrer to a new, amended complaint is filed, as here, plaintiff can no longer voluntarily dismiss. (Christensen, supra, 33 Cal.3d at p. 785.)[12] For the Christensen court, the absence of an actual ruling on the still viable amended complaint was dispositive. In effect, the Christensen court elevated what it called an intimation from Wells about the freedom to dismiss prior to a decision into a straight proposition of law.[13] The plaintiffs in Christensen had the the right to dismiss before any decision on the amended complaint.

2. ConsistentAppellate Decisions

In the wake of Wells, a number of appellate decisions have applied the Goldtree-Wells approach to trial to voluntary dismissals in the shadow of impending demurrers or summary judgment motions even though there was no actual ruling or decision on the impending motion. (The word shadow is ours; at this point in the opinion we deliberately use an imprecise metaphor.) What there was, however, in each of these cases, was some objective indicia, e.g., by way of publicly announced tentative ruling or a failure to file opposition by the deadline, that the plaintiffs case was inherently defective on the merits. In short, as a matter of law, the case was a loser: See Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765 [plaintiff not permitted to dismiss without prejudice where adverse tentative summary judgment ruling had been announced and the hearing had been continued to allow plaintiff opportunity to obtain evidence to defeat motion]; Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253 [plaintiff not permitted to dismiss one day prior to hearing on summary judgment motion where plaintiff had failed to file any opposition to summary judgment motion]; Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 [no voluntary dismissal without prejudice where trial court had announced a tentative ruling to sustain a demurrer without leave to amend].

On the other hand, a number of cases going in the opposite direction rested on the point that the voluntary dismissal could not be construed as a concession, implicit or otherwise, that the case lacked substantive merit as a matter of law: Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1410 [where trial court allowed attorney for plaintiff guardian ad litem to withdraw from medical malpractice action, dismissal by guardian ad litem in the face of summary judgment motion filed by defendants was proper because guardian ad litem had no other means to resist the motion; court also noted that summary judgment motion was substantively defensible because new counsel would have been in a position to assert triable issues of material fact]; Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1173-1174 [dismissal one day prior to the day opposition to summary judgment motion was due was effective because case had not yet reached stage where disposition was mere formality]; Tire Distributors, supra, 132 Cal.App.4th 538 [dismissal of particular defendant one day before continued hearing date of that defendants summary judgment motion was effective because of evidence that the plaintiff believed it had already settled out with that defendant].

3. Can theAppellate Decisions

Be Harmonized? Yes.

(Well, Mostly Yes.)

a. The Mere Formality Test

As a Way to Ascertain the

Commencement of Trial

The cases we have reviewed so far suggest this test as the accepted judicial gloss on the voluntary dismissal statute:

When the dismissal could be said to have been taken

-- (a) in the light of a public and formal indication by the trial court of the legal merits of the case, or

-- (b) in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable, then the voluntary dismissal is ineffective.

This two-part test readily harmonizes the results in the Court of Appeals decisions in Mary Morgans, Cravens, Groth Bros., Mossanen, Zapanta and Tire Distributors.

In the three cases of the six just mentioned where the dismissal had been held to be ineffective, either the trial court had already publicly indicated that the impending motion would result in a substantive dismissal of the action (Mary Morgans and Groth Bros.), or the plaintiff was in a position to deduce that there was nothing to be done to prevent the substantive dismissal of the action -- the dice had already been thrown (Cravens).

In the other three cases where the dismissal was effective, there was

-- (a) no reason at all to believe that the case was inherently a loser as a matter of law (Mossanen, where the court in fact pointed out that the case would have survived a summary judgment motion in the hands of a competent attorney), or

-- (b) affirmative reason to believe that the case had at least enough merit to warrant settlement (Tire Distributors), or

-- (c) a complete absence of any reason to conclude that an adverse result on an impending motion was a foregone conclusion (Zapanta).

Our distilled test is also consistent with the three Supreme Court cases we have already examined as well: In Goldtree and Wells there was the truly formal indication of actual decisions on pending demurrers on the substantive merits. By contrast in Christensen there was no formal indication by the trial court on the merits as to the pending demurrer on the amended complaint.

A test of formal indication by the court, or the legal inevitability of dismissal based on dispositive procedural inaction by the plaintiff (like not filing opposition to a summary judgment motion or not bringing the case to trial in five years) also harmonizes almost all the rest of the appellate cases that have dealt with the issue:

It explains Kyle v. Carmon (1999) 71 Cal.App.4th 901, where an effective dismissal occurred after an apparently contested hearing on an anti-SLAPP motion but while the matter was under submission to the trial court.

It explains M & R Properties v. Thomson (1992) 11 Cal.App.4th 899, where a dismissal was not effective given that the plaintiff had not brought the case to trial in five years, where the defendant had filed a dismissal motion on that basis, and where a tentative ruling had even become the actual ruling of the court prior to dismissal.

The test even reconciles Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768 to Groth Bros., though the two cases are sometimes perceived to be in conflict as to whether a plaintiff can dismiss even after learning of an adverse tentative ruling. (See Rutter Group Guide Civil Procedure Before Trial, supra, 11.25.2 - 11-12.3, p. 11-12 [noting policy rationales support Groth Bros. position].) In Datner, there was a dismissal one day prior to a hearing on an apparently contested demurrer, based on statement by the judge in an unreported chambers conference that the demurrer was meritorious. Datner is, in fact, like Kyle, where the plaintiff might have subjectively picked up on signals from the trial judge in oral argument that the case would be lost, but there had been no formal indication, by the court, to that effect. The Datner court had not yet gone public with a tentative ruling. By contrast, in Groth Bros. there was a formally posted tentative for the world to see.

The test we have derived from these cases is basically the one proposed by the Zapanta court, which employed the more elegant shorthand, mere formality, (see Zapanta, supra, 107 Cal.App.4th at pp. 1173-1174) though perhaps a slight qualification is necessary as regards the tentative ruling cases, Groth Bros. and Mary Morgan. It is stretching things a wee bit to say that a trial courts tentative ruling means that an adverse judgment is a mere formality which must inevitably ensue: Such a reading of tentative rulings suggests a rather excessive confidence in the infallibility of judges and an unseemly despair over the possibilities that oral argument might change things. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 874 [one different judge hearing appellate court oral argument might have made a difference in the outcome]).

That said, if we qualify Zapantas mere formality test to extend it to public and formal judicial expressions of the merits of a case in the context of a substantively dispositive proceeding -- and we stress that any test to be faithful to the Supreme Court cases must retain a link to the idea of trial as exposited in Goldtree,Wells, and Christensen -- it is remarkable how consistent the cases are in this area.

b. A compendium of the cases

Lets see how the Zapanta mere formality test works when we apply it to a wider range of cases. With the explosive growth of case precedent, of course, the ability to exhaust the applicable legal authorities is becoming more difficult with each passing day. That said, here is a reasonably complete compendium of California case law to date (January 2007) on the issue of precisely when an impending motion of some kind cuts off a plaintiffs statutory right to voluntarily dismiss a case without prejudice:

i. where right to dismiss was cut off:

Goldtree, supra, 135 Cal. 666 -- dismissal after demurrers to certain causes of action were long sustained and time to amend had long run.

London v. Morrison (1950) 99 Cal.App.2d 876 -- dismissal after one-year had expired since case was ordered transferred and transfer fees had not been paid, precluding trial court, under statute, from taking any other action than dismissal.

Wells, supra, 29 Cal.3d 781 -- dismissal after demurrer to second amended complaint sustained and time to amend had run and specifically one day before motion to dismiss with prejudice.

Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334 -- dismissal after adverse result in judicial arbitration and after plaintiff requested trial de novo.

Miller v. MarinaMercyHospital (1984) 157 Cal.App.3d 765 -- dismissal one week prior to hearing on summary judgment motion based on failure to respond to dispositive admissions, later deemed admitted.

Mary Morgan, supra, 49 Cal.App.4th 765 -- dismissal after adverse tentative summary judgment ruling had been announced, but during interim discovery period prior to actual ruling.

Gray v. Superior Court (1997) 52 Cal.App.4th 165 -- dismissal 15 days after referee transmitted written recommendation to trial court in wake of two-day evidentiary hearing.

Cravens, supra, 52 Cal.App.4th 253 -- dismissal one day prior to hearing on summary judgment motion, but after time for plaintiffs to file opposition had run.

Groth Bros., supra, 97 Cal.App.4th 60 -- dismissal after tentative ruling on demurrer had been announced, and tentative was not to allow any leave to amend.

M & R, supra, 11 Cal.App.4th 899 -- dismissal in the wake of five-year motion and after tentative ruling had become the actual ruling of the court.

Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 -- dismissal just prior to hearing on discovery motion for terminating sanctions, after plaintiff had failed to comply with previously litigated discovery order; opinion implies that plaintiff did not file opposition to the terminating sanction motion, and makes no reference to the announcement of any tentative ruling.

ii. where right to dismiss was not cut off

Christensen, supra, 33 Cal.3d 778 -- dismissal one day before hearing to second demurrer (on first amended complaint); opinion makes no reference to any announced tentative ruling.

Datner v. Mann Theatres Corp., supra, 145 Cal.App.3d 768 -- dismissal day before hearing on demurrer based on statement by judge in unreported chambers conference that the demurrer was meritorious.

Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435 -- dismissal after summary adjudication of some, but not all, issues.

Harris v. Billings (1993) 16 Cal.App.4th 1396 -- dismissal pursuant to settlement of case, but plaintiff forgot that under fast track rules she had to give notice of settlement to the court; local rules requiring such notice did not vitiate right to dismiss.

Parsons v. Umansky, supra, 28 Cal.App.4th 867 -- dismissal after general demurrer sustained with leave to amend and during period in which complaint could be amended.

Kyle v. Carmon, supra, 71 Cal.App.4th 901 -- dismissal after anti-SLAPP suit motion heard by trial court, but while matter was under submission.

Mossanen v. Monfared, supra, 77 Cal.App.4th 1402 -- dismissal upon receipt of summary judgment motion and just after litigant found herself without counsel who could have asserted meritorious defenses to motion.

Zapanta v. Universal Care, Inc., supra, 107 Cal.App.4th 1167 -- dismissal while summary judgment pending but one day before opposition to summary judgment motion due.

Tire Distributors, supra, 132 Cal.App.4th 538 -- dismissal one day before summary judgment motion was to be heard was effective where dismissing plaintiff had good faith belief that defendant bringing summary judgment motion had already settled out of the case with plaintiff.

The mere formality test, based on whether there has been a publicly announced decision or dismissal is a procedural inevitability explains all of these cases: Goldtree [dispositive decision on merits long prior announced]; London [procedural failure to pay transfer fees by certain date doomed case[14]]; Wells [failure to amend doomed case]; Herbert Hawkins [merits already litigated in judicial arbitration]; Miller [case was doomed when certain requests for admissions were allowed to be deemed admitted]; Mary Morgan [adjudication of merits announced in adverse tentative summary judgment ruling]; Gray [adjudication of merits in two-day evidentiary hearing by referee]; Cravens [failure to file opposition to summary judgment motion doomed case]; Groth Bros. [merits adjudicated in tentative ruling on demurrer and no possibility of cure by amendment]; M & R [tentative ruling announced plus failure to bring to trial in five years doomed case]; Christensen [no announced tentative on demurrer to still viable amended complaint]; Datner [no official tentative on demurrer]; Cal-Vada [some issues still viable even after summary adjudication]; Harris [garden-variety dismissal after settlement with no tentative and case still viable]; Parsons [leave to amend meant case was still viable]; Kyle [no announced tentative, case still theoretically viable because under submission]; Mossanen [no announced decision of any kind and dismissal while case still viable]; Zapanta [no announced decision and dismissal while case still theoretically viable]; Tire Distributors [no announced decision and settlement showed that case had viability].

In fact, the test explains the result in every case in our list.

Except one.

c. The One Case Not Explained

By the Mere Formality Test

One case, however, clearly does not fit the mere formality rule, even with an emendation to allow for tentative (public and formal) rulings -- Hartbrodt, supra, 42 Cal.App.4th 168. There, the plaintiff had disobeyed a discovery order to turn over certain audio tapes. The defendant filed a motion for discovery sanctions, which entailed the possibility of terminating sanctions. (We explain below that such discovery terminating sanctions are with prejudice and result in a judgment that is res judicata.) As far as the opinion discloses, there was no tentative ruling on the discovery sanction motion. Rather, just prior to the hearing, the plaintiff dismissed the case. (Hartbrodt, supra, 42 Cal.App.4th at p. 172.)

There are several reasons that Hartbrodt cannot be said to fit into the mere formality test that works so well with all the other cases. As just noted, there was no indicated public disposition of the case by the trial court. The opinion doesnt even make reference to the possibility that the trial judge or referee who had presided over earlier proceeding even growled at the plaintiff in one of the earlier hearings. (E.g., A word to the wise, counsel: Stop fooling around and have your client produce that tape or you will soon find yourself standing in deep dismissal territory, or words to that effect.)

Second, unlike the cases where dismissals were taken in the face of procedurally-based dispositions, such as Miller, supra, 157 Cal.App.3d 765 or M & R, supra, 11 Cal.App.4th 899, it could not be said that the procedural dismissal in Hartbrodt was inevitable. Procedural inevitability happens when dispositive admission requests have been made and a litigant has allowed them to be deemed admitted (Miller) or the plaintiff has blown the five-year deadline (M & R) requiring the trial court to dismiss. In such cases one can say that the ultimate dismissal is indeed a mere formality dictated by hard rules of procedure, qualified perhaps by the idea that only some miracle (a change of heart by an adversary? some unknown estoppel or tolling that might apply?) can save the case, otherwise predestined to perdition.

A pending discretionary dismissal motion based on the plaintiffs procedural sins is something different: In that case dismissal is more like the joke about modern health-conscious Californians and death: Some people are so dour as to always believe that death is imminent, most people recognize that death is inevitable, but in California it is perceived as merely optional. The point is -- in Hartbrodt, dismissal really was only optional. In the written opinion, at the point just prior to when the court tackled the issue of the voluntary eleventh-hour dismissal, the court emphasized the fluidity of possible outcomes, not the inevitability. Hence the Hartbrodt court stated that the trial courts own choice of a terminating sanction was within its wide discretion to order discovery and broad powers to enforce those orders and that the choice of termination would not be disturbed in the absence of an abuse of discretion. (Hartbrodt, supra, 42 Cal.App.4th at p. 175.) The implication is that if, in the trial courts discretion, the court had chosen some other way to enforce its discovery order short of termination (really large monetary sanctions? a tough evidentiary sanction?) that decision too would have been upheld as within the trial courts discretion. Unlike Miller or M & R, dismissal as a result of the plaintiffs procedural foul-up in Hartbrodt was not an inevitability.

The Hartbrodt court did not elaborate on what paradigm it used, except to describe and cite M & R, supra, 11 Cal.App.4th 899, and derive its conclusion from that case. The courts treatment of the whole issue did not extend for more than two paragraphs. (See Hartbrodt, supra, 42 Cal.App.4th at pp. 175-176.) As we have seen, though, M & R involved an impending dismissal motion based on the mandatory five-year rule. (Cf.  583.360 [shall].) The impending five-year dismissal in M & R really was a mere formality or foregone conclusion -- unlike a discretionary two-year dismissal for lack of prosecution, the court in M & R had no choice.

Perhaps the best expression of why the Hartbrodt court ruled as it did was its rejection of the perceived circumvention of consequences that are possible when dismissals are a matter of (absolute or not) right. The key language was: In one last effort to salvage his case, appellant attempted to voluntarily dismiss his case without prejudice and thereby deny to respondents the finality obtained by imposition of the terminating sanction. This tactic would simply defeat the trial courts power to enforce its discovery orders. (Hartbrodt, supra, 42 Cal.App.4th at p. 175, italics added.)

TO BE CONTINUED AS PART II.

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[1] Should we name Franklins counsel? As the next paragraph shows, the record doesnt make him look good, and his malfeasance (or, at the least, inaction) no doubt has cost the trial court and opposing counsel time, and therefore money. We feel the trial judges irritation. On the other hand, this is not a case, such as might happen on a motion strictly for sanctions against an attorney, a bar disciplinary proceeding, or a classic Code of Civil Procedure section 473 set aside motion, where we have something approaching a complete picture of all the circumstances of an attorneys apparent inaction. Nor are we dealing with some scheme on the part of an attorney that necessarily suggests unethical behavior. Perhaps, if we knew all the facts, there might even be something excusable in trial counsels conduct. It is becoming to the judiciary for judges to recall in such contexts the difficult exigencies of day-to-day law practice. If perfection were the standard none of us should escape ridicule. (See Wells v. Marina City Properties (1981) 29 Cal.3d 781, 791, fn. 3 (dis. opn. of Carr, J.) [I do not mean to condone procrastination and slothfulness on the part of attorneys, but as a former practicing attorney, I am aware of the problems of inept personnel who fail to calendar or miscalendar deadlines and the burden of determining priorities in the workload of a busy attorney.].) We will therefore not name Franklins trial counsel, and readers should draw no adverse inferences as regards counsel who now represent Franklin on appeal.

[2] All otherwise undesignated statutory references in this opinion will be to the Code of Civil Procedure, with the exception of any reference to section 1717, which will be to the Civil Code. All otherwise undesignated references to any rule will be to the California Rules of Court.

[3] Here is the relevant text from the reporters transcript of that day: The court: Okay. There is a dismissal without prejudice that was filed on May 18th by counsel for the plaintiff. That dismissal without prejudice is rejected. The courts dismissing it with prejudice. [] The courts taking that action based upon the numerous failures to appear, failure to comply with court orders pursuant to sanctions, and, again, the numerous failures to appear that have occurred previously.

[4] Which is not part of our record, and respondents have not made a motion to augment. As explained in respondents brief, the new action was withdrawn after Franklin was threatened with abuse of process or malicious prosecution. This opinion, of course, does not address whatever complications may arise in the future from that aborted foray.

[5] Here is the part of the reporters transcript where the court explains its action: You cant file a dismissal when there is a pending dispositive action down the road to escape that dispositive action. That would be like, okay, we have a summary judgment on calendar, so Im just going to dismiss this. Or there is a motion, there is a motion to dismiss. Well, to avoid any negative ruling, Ill just dismiss it now. You can do that up until the point where the motion is actually pending.

[6] This case presents one of those zen-like conundrums in civil procedure where the court must first peek at the merits in order to ascertain the procedural propriety of some question -- in this case, appealability. As we explain below, when Franklin filed its May 18 voluntary dismissal without prejudice, the trial court was stripped of jurisdiction to take any further action. (E.g., Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 542 [When a dismissal has properly been filed, the trial court loses jurisdiction to act in the case.].) When the trial court entered, on its own, a dismissal with prejudice the next day, the trial court exceeded its jurisdictional authority in a way that the issue could be raised at any time. (See People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) Technically speaking, then, the September 26 order denying the motion to set aside was a post-judgment order (the judgment being the May 18 voluntary dismissal, not the May 19 minute order), and the order denying the set aside request was an appealable post-judgment order, from which this appeal, noticed within two weeks of that post-judgment order, was easily timely. (See also Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194 [Courts also possess inherent power to set aside void judgments.].)

[7] Here is the passage that the Goldtree court quoted from the State v. Scott decision: No case has been cited where under a statute like ours a plaintiff as a matter of right can dismiss his action after it has been submitted to the court. If he could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation. The statute, therefore, limits the right of the plaintiff to dismiss to the final submission of the case. (Goldtree, supra, 135 Cal. at p. 671.)

[8] Said the court: On the other hand, the power of a court to dismiss an action upon motion of either party under the circumstances set forth in subdivision 3 [of section 581, involving demurrers when the time to amend has expired and either party moves for dismissal] seems equally clear. [Citation.] As with subdivision 1 dismissals, the statutory language is not specific but it is generally accepted that the movant is entitled to an appealable judgment of dismissal with prejudice [citation], as defendants requested in this case. (Wells, supra, 29 Cal.3d at p. 785.)

[9]United Shippers, Inc. v. Superior Court (1980) 104 Cal.App.3d 359 and Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331.

[10] See Weil et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) (hereinafter Rutter Guide Civil Procedure Before Trial) 11:25, p. 11-11 [quoting passage and observing that The meaning and effect of this dictum is unclear].

[11] We conclude, therefore, that once a general demurrer is sustained with leave to amend and plaintiff does not so amend within the time authorized by the court or otherwise extended by stipulation or appropriate order, he can no longer voluntarily dismiss his action pursuant to section 581, subdivision 1, even if the trial court has yet to enter a judgment of dismissal on the sustained demurrer. (Anticipating another possible source of procedural confusion [citation], we note that such right of voluntary dismissal, which is not barred until expiration of plaintiffs time to amend after sustaining of the demurrer, would also not be impaired prior to a decision sustaining the demurrer. (Christensen, supra, 33 Cal.3d at p. 785, quoting Wells, supra, 29 Cal.3d at pp. 789-790, italics original to Wells.)

[12] In Parsons v. Umansky (1994) 28 Cal.App.4th 867, a voluntary dismissal after a general demurrer had been sustained but within the time given to amend was held valid; the appellate court determined that the trial court erred in vacating the voluntary dismissal without prejudice and entering a new one with prejudice. Parsons derived its rule from the negative implications of Goldtree and Wells, i.e., if you cant dismiss after time to amend has expired, you can dismiss before, but Parsons did not mention Christensen though both cases would appear to derive from the same basic idea: If your complaint still might be viable because you can still amend it after a sustained demurrer, you can still voluntarily dismiss.

[13] Readers should note the emphasis on actual rulings and decisions in this passage from Christensen, which we stress by italicizing those words: We do not agree with this interpretation of Wells. Before a ruling on the amended complaint, it cannot be said that there has been a decision sustaining the demurrer. (Wells, supra, 29 Cal.3d at p. 790.) It follows that, as Wells intimates, plaintiffs had the right to dismiss the complaint without prejudice before any decision on the demurrer to the first amended complaint. The first amended complaint had replaced the original complaint, and until a demurrer to that amended complaint had been sustained, there was no decision sustaining the demurrer. (Christensen, supra, 33 Cal.3d at p. 785, italics added, original italics of word amended deleted.)

[14] Since the particular statute at issue in London (former section 581b) was jurisdictional, depriving the court of all jurisdiction to take any action, including entering of voluntary dismissal, it is like a five-year case, where similar inaction puts the case on an irreversible track to dismissal.