Opinion
NOT TO BE PUBLISHED
APPEAL from a dismissal of the Superior Court of San Diego County, No. 37-2009-00083140-CU-TT-CTL, Judith F. Hayes, Judge.
IRION, J.
Plaintiffs Citizens for Responsible Equitable Environmental Development (CREED) and Affordable Housing Coalition of San Diego County (AHC) appeal the voluntary dismissal with prejudice entered after the trial court denied them leave to file a third amended petition for administrative mandate to challenge defendant City of San Diego's (the City) approvals of several condominium conversion projects. We conclude no appeal lies from the dismissal with prejudice because CREED and AHC had already voluntarily dismissed the entire action without prejudice before the clerk entered the dismissal with prejudice. We therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
CREED and AHC are nonprofit entities that advocate on behalf of the public concerning environmental and housing issues. They filed a petition for writ of administrative mandate (see Code Civ. Proc., § 1094.5) to invalidate the City's approval of several condominium conversion projects on the grounds that the City had violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), the Subdivision Map Act (Gov. Code, § 66410 et seq.) and the San Diego Municipal Code.
CREED and AHC amended the petition twice over the next three months, first to add condominium conversion projects to the case and then to change the caption to reflect these additions. They subsequently moved for leave to file a third amended petition, to drop parties that had been dismissed and causes of action that were being abandoned and to add new causes of action for violations of other provisions of the San Diego Municipal Code and of their due process rights. The City and some real parties in interest opposed the motion in whole or in part. The trial court denied the motion.
After the motion for leave to amend was denied, CREED and AHC filed a voluntary dismissal without prejudice of all of their causes of action except the CEQA claim. Two days later, they voluntarily dismissed the CEQA claim without prejudice.
More than six weeks later, CREED and AHC submitted a voluntary dismissal of the entire action with prejudice, which the clerk entered. They also filed and served a notice of entry of dismissal, which stated: "Petitioners requested dismissal of the action in order to expedite an appeal of the denial of Petitioners' motion to amend, denied on September 18, 2009." CREED and AHC then filed a notice of appeal from the dismissal with prejudice.
In addition to the City, real parties in interest Mesa Villas Investors, LLC; Emerald Manor Apartment House, LLP; West of Ingraham, LLC; Matthew Browar; Nancy Browar; Mike E. Turk; and Donald Peters are respondents on appeal.
The City, joined by real parties in interest, has moved to dismiss the appeal for lack of jurisdiction. The City has also moved for sanctions against CREED and AHC and their attorneys for filing a frivolous appeal.
DISCUSSION
A. The Motion to Dismiss
We must first decide whether we have jurisdiction over this appeal. CREED and AHC contend we have jurisdiction to decide the merits of their challenge to the trial court's order denying the motion for leave to amend because they filed the voluntary dismissal with prejudice to obtain expedited review of that order, and appellate courts have held such dismissals are appealable. The City contends we should dismiss this appeal because the voluntary dismissal of the action without prejudice is not appealable, and the subsequent voluntary dismissal of the action with prejudice is of no legal effect. We think the City has the better argument and conclude we have no jurisdiction.
The City is correct that the dismissal with prejudice, from which CREED and AHC purport to appeal, is void. When the plaintiff has voluntarily dismissed an action, the trial court loses jurisdiction and has no power to act further (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784; Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437; Egly v. Superior Court (1970) 6 Cal.App.3d 476, 483), except to award costs or fees (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 273; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909). Any subsequent orders or other acts of the trial court are void. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200 (Varian); Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876; Gherman v. Colburn (1971) 18 Cal.App.3d 1046, 1050.) In particular, once a plaintiff has voluntarily dismissed an action without prejudice, the trial court has no jurisdiction to enter a new dismissal with prejudice, and any such dismissal is void. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 192, fn. 6, 219; Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405 (Harris).) Here, CREED dismissed its action by filing two voluntary dismissals without prejudice, one for the CEQA claim and another for all the other claims. "Though accomplished in this piecemeal fashion, there had been a dismissal of this entire action." (Wackeen, at pp. 438-439.) Hence, the court had no authority to enter the subsequent dismissal with prejudice, and that dismissal is void.
It does not matter to the jurisdictional analysis that CREED and AHC requested entry of the dismissal with prejudice. Parties may not create subject matter jurisdiction by consent where none otherwise exists. (E.g., Taylor v. Taylor (1923) 192 Cal. 71, 78; In re A. C. (2005) 130 Cal.App.4th 854, 860; Harris, supra, 16 Cal.App.4th at p. 1405.)
The fact that the dismissal with prejudice is void does not necessarily mean, however, that no appeal lies. Our Supreme Court has "long held that even a void judgment or order is appealable if that judgment or order is otherwise appealable." (Varian, supra, 35 Cal.4th at p. 200, italics added; see also Phelan v. Superior Court (1950) 35 Cal.2d 363, 366; Ewing v. Richvale Land Co. (1917) 176 Cal. 152, 154.) We must therefore decide whether the dismissal with prejudice entered in this case is "otherwise appealable." (Varian, at p. 200.)
There are some situations in which the courts of appeal have permitted plaintiffs to appeal from their own voluntary dismissals. CREED and AHC contend they voluntarily dismissed their action to obtain expedited review of the order denying leave to amend, and they rely on a line of cases in which "appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 (Stewart), italics added; accord, Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 244 (Giraldo); Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974-975 (Gutkin); Denney v. Lawrence (1994) 22 Cal.App.4th 927, 930, fn. 1 (Denney); Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793 (Ashland).) The "theory" underlying this line of cases is that because the appellant had suffered an adverse ruling by the trial court, "the dismissals were not really voluntary, but only done to expedite an appeal." (Ashland, supra, 129 Cal.App.3d at p. 793.) We do not believe these cases support the appealability of the dismissal with prejudice entered in this case.
There is a line of cases to the contrary. (See, e.g., H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 (H. D. Arnaiz) ["A voluntary dismissal is a ministerial act, not a judicial act, and not appealable."]; Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343 [dismissing for lack of jurisdiction appeal from voluntary dismissal with prejudice after demurrer was sustained without leave to amend]; Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331 [dismissing for lack of jurisdiction appeal from voluntary dismissal of entire action after demurrer was sustained without leave to amend]; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761 ["A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal."].)
In most of the cases allowing an appeal from a voluntary dismissal, the trial court ruled against the plaintiff, who then voluntarily dismissed all claims with prejudice. For example, in Giraldo, Gutkin and Ashland, the trial courts sustained demurrers without leave to amend, and the plaintiffs later requested that all their claims be dismissed with prejudice. (Giraldo, supra, 168 Cal.App.4th at pp. 242, 244; Gutkin, supra, 101 Cal.App.4th at pp. 972-973; Ashland, supra, 129 Cal.App.3d at pp. 792-793.) Similarly, in Denney, supra, 22 Cal.App.4th 927, 932-933, after receipt of several pretrial rulings restricting their recoverable damages, the plaintiffs stipulated to the entry of a judgment of dismissal of all claims. The situation in Stewart, supra, 87 Cal.App.4th 1006, 1011-1012, was different in that the Court of Appeal there allowedthe defendant's attorney to challenge a discovery sanctions order, but only after all claims had been dismissed with prejudice. In each of these cases, then, to the extent an appeal was allowed from a voluntary dismissal, the dismissal finally disposed of all claims on the merits and thus had the effect of an appealable final judgment. (Code Civ. Proc., § 904.1, subd. (a)(1); Gutkin, supra, 101 Cal.App.4th at pp. 974-975.)
In Gutkin, the voluntary dismissal from which the appeal was taken was technically without prejudice. (Gutkin, supra, 101 Cal.App.4th at p. 973.) The Court of Appeal noted, however, that the plaintiff had no power voluntarily to dismiss the causes of action to which the demurrer had been sustained because "[t]hose counts had been effectively 'tried' by the court, and a voluntary dismissal cannot be taken after 'trial' commences." (Id. at p. 974.) The Court of Appeal thus held that the trial "court's order sustaining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment." (Ibid.) Thus, as to the claims to which the demurrer had been sustained without leave to amend, the dismissal was effectively with prejudice, and appeal was allowed. (Id. at pp. 974-975.) As to the claims that were simply dismissed without prejudice, however, appeal was not allowed. (Id. at p. 975.)
That is not the situation presented by this appeal, however, because the dismissal with prejudice did not finally dispose of any claims, on the merits or otherwise. After the trial court denied their motion for leave to amend but before the clerk entered the dismissal with prejudice, CREED and AHC dismissed all of their claims without prejudice. As we have explained, at that point the trial court had no jurisdiction to enter the dismissal with prejudice, which was void and therefore disposed of nothing. (See p. 4, ante.) For these reasons, Giraldo, supra, 168 Cal.App.4th 231, and similar cases on which CREED and AHC rely, do not support the appealability of the dismissal with prejudice that was entered in this case.
We note that CREED and AHC might have been able to obtain a dismissal with prejudice if they first had the dismissal without prejudice vacated by the trial court. A trial court may vacate a voluntary dismissal under Code of Civil Procedure section 473. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 22.) To obtain this relief, CREED and AHC would have had to show that their dismissal without prejudice was entered as a result of "mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., § 473, subd. (b); see H. D. Arnaiz, supra, 96 Cal.App.4th at p. 1369 [relief from voluntary dismissal without prejudice proper when plaintiff was mistaken about defendant's intent to cooperate with development]; J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1494 [relief from dismissal without prejudice was proper when defendant's attorney's failure to object to dismissal was inadvertent and/or mistaken].) CREED and AHC never sought such relief, however.
We are left, then, with the two voluntary dismissals without prejudice CREED and AHC earlier filed. As the City correctly contends, such dismissals do not finally dispose of any claims on the merits and so are not appealable. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1424, 1428-1429; Gutkin, supra, 101 Cal.App.4th at p. 975; In re Tomi C. (1990)218 Cal.App.3d 694, 698.) Without an appealable judgment or order, we have no jurisdiction. (Code Civ. Proc., § 904.1; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) We therefore dismiss the appeal.
Although CREED and AHC did not specifically appeal from these dismissals, we consider them because they are the only operative dismissals and because "[t]he notice of appeal must be liberally construed." (Cal. Rules of Court, rule 8.100(a)(2).)
CREED and AHC have requested that we take judicial notice of an unpublished decision from this court and of certain municipal regulations. Since these materials are irrelevant to our resolution of this appeal, we deny their request. (See Larner v. Los Angeles Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1297, fn. 2; Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301.)
B. The Motion for Sanctions
We next consider the City's original and renewed motions for sanctions against CREED and AHC and their attorneys. According to the City, we should impose monetary sanctions because this appeal is "patently frivolous" in that "there is no appealable event in this case." We disagree.
The only substantive difference we perceive between the motion and the renewed motion is the amount of sanctions requested.
Our Supreme Court has cautioned that sanctions should be awarded "most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651.) "Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (Id. at p. 650, italics added.) "Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment - or when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit." (Ibid.)
Applying this standard, we do not consider this appeal to be frivolous. It appears CREED and AHC requested dismissal with prejudice in order to challenge the order denying their motion for leave to amend. An order "denying leave to amend the complaint is generally reviewable on appeal from the final judgment in the action." (Jennings v. Marralle (1994) 8 Cal.4th 121, 128.) Moreover, there are several cases that allowed the plaintiff to appeal from a voluntary dismissal with prejudice entered after an adverse ruling by the trial court, when, as here, the plaintiff wanted to expedite an appeal of the ruling. (See pp. 5-7, ante; see also Giraldo, supra, 168 Cal.App.4th at p. 244 [noting plaintiff had filed notice of voluntary dismissal, stating dismissal was requested to facilitate appeal of certain adverse pretrial rulings].) Although we have concluded those cases do not apply to this appeal, the law is not entirely clear in this area, as indicated by the contrary lines of authority regarding the appealability of voluntary dismissals. (See pp. 5-6 & fn. 2, ante.) Under these circumstances, we cannot say the appeal was "prosecuted for an improper motive" or that "any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) We therefore deny the City's original and renewed motions for sanctions.
DISPOSITION
The appeal is dismissed. The motion for sanctions and the renewed motion for sanctions are denied.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.