Ayala v. Gutierrez
Filed 9/3/13 Ayala v. Gutierrez CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
MABEL AYALA,
Plaintiff and Appellant,
v.
DAVID GUTIERREZ et al. ,
Defendants and Respondents.
B243006
(Los Angeles County
Super. Ct. No. BC451204)
APPEAL from
a judgment of the Superior Court of
County.
Ralph W. Dau, Judge.
Appeal treated as petition for extraordinary writ. The petition for extraordinary writ is
granted. Order vacated and remanded with
directions.
Law Offices
of Jina A. Nam & Associates, Jina A. Nam for Plaintiff and Appellant.
No
appearance for Defendants and Respondents.
___________________________________________________
While several of defendants’ motions were pending,
plaintiff voluntarily dismissed her complaint with prejudice. Following the dismissal, the trial court
ruled on defendants’ motions.
Plaintiff
attempts to appeal from the order granting the motions. Although the order is not appealable, we
exercise our discretion to treat plaintiff’s appeal as a petition for an
jurisdiction to grant the motions. We
therefore vacate the order and direct that the action be dismissed with
prejudice.
BACKGROUND
Plaintiff
and appellant Mabel Ayala brought suit against various defendants, including
David Gutierrez and Old Mission Financial, Inc. (Old Mission), in December
2010. In April 2012, Gutierrez and Old
Mission filed a motion for leave to file a cross-complaint against Ayala. A week later they filed a motion to compel
production of documents and a motion to compel further answers to form
interrogatories. Each of these three
motions was set to be heard on May 30, 2012.
On May 30,
before defendants’ motions were heard, Ayala filed a dismissal of the entire
action with prejudice. At the hearing on
the motions, Ayala’s attorney informed the trial court of the voluntary
dismissal. Nevertheless, the trial court
entertained oral argument and took defendants’ motions under submission. Later that day it issued an order granting
the discovery motions and the motion for leave to file a cross-complaint. Furthermore, in connection with the discovery
motions, it ordered that plaintiff pay Gutierrez and Old Mission $760.50.
DISCUSSION
Plaintiff
attempts to appeal from the order granting the discovery motions and leave to
file the cross-complaint. Generally, an
appeal may not be taken following a voluntary dismissal. (Gutkin
v. University of Southern California (2002) 101 Cal.App.4th 967, 975.) Code of Civil Procedure section 904.1,
subdivision (a)(2),
title="">[1] allows an appeal from an order made after an
appealable judgment, but does not provide for appeal of an order made after
however, we have discretion to treat an appeal from a nonappealable order as a
petition for extraordinary writ. (
Cal.App.4th 691, 698.) We exercise that
discretion here in the interest of judicial economy because, if we do not do
so, further trial court proceedings will occur in an action that was already
dismissed in its entirety.
A plaintiff
generally has the right to dismiss an
entire action prior to the commencement of trial. (§ 581, subds. (b), (c).) “A request for a dismissal is usually
effective upon filing, and no other action by the clerk or the court is
required.†(Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869,
876.) Neither the trial court nor the
clerk may prevent entry of the dismissal.
(Aetna Casualty & Surety Co.
v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931.) Upon the filing of a voluntary dismissal, the
trial court loses jurisdiction to act in the case “except for the limited
purpose of awarding costs and statutory attorney fees.†(Gogri
v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261.) All subsequent proceedings are void. (Aetna
Casualty, at p. 931.)
Although
section 581, subdivision (c), expressly allows voluntary dismissals to be taken
“prior to the actual commencement of trial,†“trial†in the context of section
581 is not limited to the traditional understanding of the term. (Lewis
C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67,
76.) Instead, it can also include
dispositive pretrial proceedings, such as demurrers that are sustained without
leave to amend or successful motions for summary judgment. (Ibid.;
Gogri v. Jack in the Box Inc., supra,
166 Cal.App.4th at p. 267.) A voluntary
dismissal is considered ineffective if it is filed after there has been “a
public and formal indication by the trial court of the legal merits of the
case†or “some procedural dereliction by the dismissing plaintiff that made
dismissal otherwise inevitable.†(Franklin
Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200.) Thus, for example, a dismissal was found
ineffective when it was taken after the trial court had already issued an
adverse tentative ruling on a motion for summary judgment. (Mary
Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 767.) In another case, when the defendants met
their initial burden in moving for summary judgment and the plaintiff failed to
file an opposition, judgment in the defendants’ favor was an inevitability that
the plaintiff could not avoid by filing a request for dismissal without
prejudice. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253,
257.)
At the time
of dismissal in this case, there had been no determinative statement by the
trial court or dereliction on the part of Ayala that made judgment in
defendants’ favor inevitable. Two of
defendants’ discovery motions were pending when the dismissal was filed, and it
appears that no opposition was filed to either motion. Although the motions requested terminating
sanctions, whether terminating sanctions would be imposed was a matter of
discretion for the trial court, and a decision to impose such sanctions could
not be made lightly. (See
(2007) 149 Cal.App.4th 285, 297; Mileikowsky
v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.) Unlike summary judgment proceedings, in which
a plaintiff’s failure to file a response to adequate moving papers results in
an adverse judgment, Ayala’s failure to oppose the discovery motions did not
preclude any possibility of her prevailing.
At the time Ayala filed her request for dismissal, there was no formal
indication that her lawsuit would fail, and therefore Ayala’s request for
dismissal with prejudice was effective.
Ayala’s
filing of the request for dismissal thus prevented the trial court from
ordering that Ayala pay defendants’ attorney fees in connection with the
discovery motions. Although under the
anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (§ 425.16)
a trial court may award defendants their fees even after the plaintiff’s filing
of a request for dismissal (see Law
Offices of Andrew L. Ellis v. Yang, supra,
178 Cal.App.4th at p. 879), we find no similar authority for a postdismissal
award of fees on a routine discovery motion.
In sum,
once the request for dismissal was filed, the trial court was without
jurisdiction to decide defendants’ discovery motions or their motion for leave
to file a cross-complaint. By filing the
request for dismissal with prejudice, Ayala terminated the action (except for
the limited decision of how much, if any, costs or statutory attorney fees are
awardable).
DISPOSITION
The appeal
from the May 30, 2012, order is treated as a petition for extraordinary
writ. The petition for extraordinary
writ is granted and the May 30, 2012, order is vacated. The matter is remanded to the trial court
with directions that the case be dismissed with prejudice. Plaintiff is awarded
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
otherwise noted, all further statutory references are to the Code of Civil
Procedure.
did not file a respondents’ brief and thus did not provide any argument
supporting the position that fees could properly be awarded.
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
