Opinion
B321796 B322748
11-16-2023
RICARDO CANALES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; NORIK BARSEGHIAN et al., Real Parties in Interest. RICARDO CANALES, Plaintiff and Respondent, v. NORIK BARSEGHIAN et al., Defendants and Appellants
AJK Law Firm and Ara Joe Keropian for Real Parties in Interest, Defendants and Appellants. No appearance for Respondent the Superior Court of Los Angeles County. Nussbaum, Lane M. Nussbaum, Richard J. Uss and Wayne M. Abb, for Petitioner, Plaintiff and Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate and APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 19GDCV00388. Ralph C. Hofer, Judge. Petition is granted; order is reversed.
AJK Law Firm and Ara Joe Keropian for Real Parties in Interest, Defendants and Appellants.
No appearance for Respondent the Superior Court of Los Angeles County.
Nussbaum, Lane M. Nussbaum, Richard J. Uss and Wayne M. Abb, for Petitioner, Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Plaintiff initiated this lawsuit against defendants after plaintiff's tenant allegedly breached a commercial lease agreement. Plaintiff alleged defendants were the guarantors of the lease agreement. On the day of trial, the trial court orally issued its tentative ruling. The court intended to grant a motion in limine filed by defendants. It also intended, on its own motion for judgment on the pleadings, to dismiss defendants with prejudice. Shortly thereafter, plaintiff orally requested, and the court granted, a dismissal of defendants without prejudice. The trial court denied defendants' motion for attorney fees, finding that the dismissal without prejudice was voluntary and therefore barred any claim for contractual attorney fees.
Defendants appeal from the order dismissing the action against them without prejudice. The crux of the issue on appeal is whether the court was permitted to accept plaintiff's request to dismiss defendants without prejudice at that juncture in the proceedings. Defendants contend the court was precluded from such action because plaintiff's request occurred "[a]fter the actual commencement of trial" under Code of Civil Procedure section 581, subdivision (e), and therefore the court was only permitted to dismiss defendants with prejudice, absent a showing of good cause. As a threshold issue, we treat the appeal from the order of dismissal, which is from a nonappealable order, as a petition for writ of mandate. We agree with defendants and grant the petition.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Defendants also appeal from the order denying their motion for attorney fees, contending that the court abused its discretion in finding they were not the prevailing parties. In light of our holding, we reverse the court's order denying attorney fees to defendants.
On our own motion, we consolidated the appeals for purposes of oral argument and decision.
FACTUAL AND PROCEDURAL HISTORY
In July 2018, plaintiff Ricardo Canales, in his capacity as the trustee of the Canales Family Trust, entered into a written commercial lease agreement as lessor with Ideal Kitchen Supply, Inc. (Ideal Kitchen) as lessee. Under the lease agreement, Ideal Kitchen leased the real property located at 701 West Broadway in Glendale, California (property) from plaintiff for a fixed term of five years and one month, commencing on August 1, 2018, and terminating on August 30, 2023. Defendants Norik Barseghian and Rita Gharibians were listed as guarantors of the lease. The lease agreement provided that "[t]he Guarantors, if any, shall each execute a guaranty . . . and each Guarantor shall have the same obligations as Lessee under this Lease." Plaintiff and defendants, on behalf of Ideal Kitchen, initialed each page as well as signed and dated the lease agreement. A guaranty of the lease agreement, naming defendants as guarantors, was initialed by plaintiff and defendants at the bottom of each page. However, the guaranty was not signed or dated by defendants in the signature block on the last page.
Ideal Kitchen is not a party to the appeal.
On March 27, 2019, plaintiff initiated an unlawful detainer action against Ideal Kitchen only, alleging entitlement to the property based on a breach of the lease agreement. On May 28, 2019, plaintiff's motion for summary judgment or in the alterative, summary adjudication as to the breach of the lease agreement was granted and possession of the property was awarded to plaintiff. The court denied the motion as it related to damages.
On June 27, 2019, plaintiff filed the operative first amended complaint for breach of the lease agreement against Ideal Kitchen and defendants. Plaintiff alleged Ideal Kitchen breached the lease agreement by failing to pay rent and other charges, failing to obtain and provide proof of proper insurance, holding over after the three-day notice, failing to maintain and repair the property, and vacating the property prior to the expiration of the lease. Plaintiff alleged defendants executed a written guaranty of the lease agreement. In the guaranty, defendants allegedly guaranteed Ideal Kitchen's performance of the lease agreement obligations to plaintiff. Plaintiff attached the lease agreement and the guaranty.
On April 15, 2022, defendants filed a motion in limine to exclude (1) evidence and argument related to the execution of the guaranty and (2) parole evidence to show or prove defendants executed the guaranty. In addition, defendants requested a determination, as a matter of law, that defendants did not execute the guaranty. Defendants also requested judgment in their favor and against plaintiff as a matter of law.
On April 18, 2022, the day of trial, the court held a hearing on the motion in limine. Both parties were present but there was no court reporter (or subsequent settled statement), which, as discussed below, led to an inaccurate minute order that had to be later corrected by the court nunc pro tunc. According to the minute order, the court "[g]ranted without leave to amend" the motion in limine. The court, on its own motion for judgment on the pleadings, dismissed defendants. The court found "the guaranty was not signed by any of these defendants. The guaranty is not part of the lease or any of the addendums. Norik Barseghian and Rita Gharibians were not named as defendants . . . in the original unlawful detainer." The court noted it was "not making a finding as to whether or not the guaranty is enforceable as a stand-alone document." The court then ordered plaintiff's counsel "to submit a dismissal as to Norik Barseghian and Rita Gharibians with prejudice."
On April 19, 2022, plaintiff filed a request for dismissal of the complaint against defendants without prejudice. The clerk entered the dismissal that day.
On April 20, 2022, plaintiff filed an ex parte application requesting, in part, an order striking the April 18, 2022 minute order. Plaintiff argued the court's ruling was only a tentative and the court had alternatively granted plaintiff's request to dismiss defendants without prejudice. That same day, defendants filed an objection to plaintiff's request to dismiss without prejudice. Defendants argued plaintiff lost the right to dismiss the action against defendants without prejudice because the trial had already commenced pursuant to section 581.
On April 21, 2022, the trial court stated its tentative ruling to grant plaintiff's ex parte application and amend the April 18, 2022 minute order nunc pro tunc to correct the clerical error. The court noted receipt of defendants' objection to plaintiff's request for dismissal without prejudice and stated the dismissal without prejudice "will remain." The court explained that at the April 18 hearing, it issued an oral tentative ruling to grant defendants' motion in limine and on its own motion for judgment on the pleadings, dismiss defendants with prejudice. At some point, plaintiff had made a motion for leave to amend the operative complaint and the court denied it. After issuing its tentative ruling, the court asked the parties to confer amongst themselves off the record about how they would like to proceed. When the parties returned, plaintiff's counsel requested to dismiss defendants without prejudice and remarked, "You leave me no choice." The court granted plaintiff's request and directed plaintiff to file its dismissal.
In response to defendants' written objection, the court made "a specific finding" that trial had not commenced, and therefore a dismissal without prejudice was proper. Even assuming a trial had actually commenced, the court noted it could dismiss a party without prejudice upon a showing of good cause. However, the court made clear it was "not exercising its discretion" as "there was no showing of good cause." The court emphasized that if the court adopted its tentative ruling, defendants would have been "dismissed with prejudice." The court then granted the ex parte application and a nunc pro tunc order was issued as follows: "The Court does not rule on Defendant's Motion in Limine . . ., but announced a tentative ruling to grant this motion. The Court does not adopt its tentative ruling as a final ruling and does not enter any ruling on Defendant's Motion in Limine." In addition, "Plaintiff dismisses without prejudice defendants Norik Barseghian and Rita Gharibians."
Defendants filed a notice of appeal from the dismissal entered on April 19, 2022, and the April 21, 2022 order correcting the April 18, 2022 order nunc pro tunc.
DISCUSSION
1. Appealability
Plaintiff argues that a dismissal without prejudice is not an appealable judgment. While we agree with plaintiff, we decline to dismiss the appeal and instead construe it as a petition for writ of mandate.
"In California, the right to appeal is wholly statutory." (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) "[A]ppeals in civil matters from the superior court are limited to the judgments and orders enumerated in section 904.1," which codifies the final judgment rule. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226.) Thus "an appeal lies only from a final judgment [citation], i.e., a judgment which 'terminates the proceeding in the lower court by completely disposing of the matter in controversy' [citation]." (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 963.) The dismissal presented here, however, was entered without prejudice. No adjudication on the merits has taken place. Therefore, a dismissal without prejudice does not constitute a final judgment for purposes of appeal. (See Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240, 245; In re Lauren P. (1996) 44 Cal.App.4th 763, 767-768; see also Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79, 82-83; Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 116-117; Cook v. Stewart McKee &Co. (1945) 68 Cal.App.2d 758, 760 ["there is no kinship of a voluntary dismissal to a final judgment"].)
However, we conclude the appeal should not be dismissed as we elect to exercise our discretion to treat the appeal as a petition for writ of mandate and review the matter. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747 [appellate court may exercise its discretion to construe an appeal as a petition for writ of mandate in unusual circumstances where doing so would serve the interests of justice and judicial economy].) The interests of justice and judicial economy would not be served by dismissing the appeal, which the parties have fully briefed. Moreover, defendants would otherwise have no avenue for relief. Under these circumstances, treatment as a writ petition is warranted.
We recognize the superior court, which would properly be a respondent in a writ proceeding, is not before us. However, the court would only be a nominal party and likely would not make an appearance. We do not find its absence presents an impediment to proceeding with this action as though on a writ. (Olson v. Cory (1983) 35 Cal.3d 390, 401 [superior court's absence in appeal treated as writ proceeding did not present an "insuperable obstacle since there [was] no indication that the court . . . would . . . become more than a nominal party"].)
2. Dismissal Without Prejudice
The right of a plaintiff to dismiss its case voluntarily and without prejudice is set forth in section 581, and all permutations of circumstances on the subject flow from that statue. As relevant here, a plaintiff may dismiss an action with or without prejudice "at any time before the actual commencement of trial." (§ 581, subd. (b)(1).) However, if a plaintiff requests a dismissal "[a]fter the actual commencement of trial," the court must dismiss the complaint with prejudice, absent a showing of good cause.(Id., subd. (e).) The issue on appeal is whether plaintiff requested to dismiss before or after "the actual commencement of trial." The trial court's application of section 581 to undisputed facts is a question of law and we review the trial court's determination de novo. (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 262 (Gogri).)
Section 581, subdivision (b) states in pertinent part: "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."
Section 581, subdivision (e) states in pertinent part: "After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless . . . by order of the court dismissing the same without prejudice on a showing of good cause." Here, the trial court specifically noted it was not relying on this provision and in any event, found no good cause to dismiss without prejudice.
Section 581, subdivision (a)(6) defines the phrase as follows: "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." Notwithstanding the statutory definition, "the California Supreme Court has construed the phrase 'commencement of trial' in section 581 to include 'determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions. [Citations.]' [Citation.] Therefore, 'commencement of trial' under section 581 is not restricted to only jury or court trials on the merits, but also includes pretrial procedures that effectively dispose of the case. [Citations.]" (Gogri, supra, 166 Cal.App.4th at pp. 261-262; Lewis C. Nelson &Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 76.) Thus, "the language in section 581, subdivision (a)(6) is not exclusive-it tells you that some things constitute a trial but it doesn't say that those are the only things that constitute a trial." (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 194 (Franklin).)
The commencement of trial may take place even before the trial court makes an actual ruling on a pending dispositive motion when there "was some objective indicia, e.g., by way of publicly announced tentative ruling . . ., that the plaintiff's case was inherently defective on the merits." (Franklin, supra, 148 Cal.App.4th at p. 199; 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]; 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].) In other words, a dismissal without prejudice is untimely under section 581 if there has been "a public and formal indication by the trial court of the legal merits of the case." (Franklin, supra, at p. 200.)
Here, the dismissal was requested by plaintiff shortly after the trial court issued its tentative ruling. The court intended to grant defendants' motion in limine and deny plaintiff's request for leave to amend the operative complaint. It further intended to grant its own motion for judgment on the pleadings, dismissing defendants with prejudice. Thus, at the time of plaintiff's request, there had been a "public and formal indication" by the court regarding the merits of the case. (See Franklin, supra, 148 Cal.App.4th at p. 200.) The court's tentative ruling (specifically, granting its own motion for judgment on the pleadings), if adopted, adjudicated the action against plaintiff in favor of defendants on the merits. Plaintiff cannot argue otherwise. Moreover, allowing plaintiff to dismiss without prejudice after learning of the adverse tentative ruling is contrary to the policy of section 581 as noted by our Supreme Court in Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781. "No good reason appears why encouragement should be given to such tactics, the effect of which is to expose defendants to duplicative 'annoying and continuous litigation,' to burden our trial court with 'fruitless' proceedings, and to delay the ultimate resolution of the validity of the plaintiff's pleading. [Citations.]" (Id. at p. 789.) Therefore, plaintiff's request for dismissal without prejudice after the court issued its tentative ruling was untimely under section 581.
We decline to address plaintiff's contention that he was precluded from opposing defendants' motion in limine in violation of his due process rights. Plaintiff failed to raise this argument before the trial court, and thus forfeited it. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265.) [a party who fails to raise an alleged error in the trial court generally forfeits the right to raise the alleged error on appeal].) In addition, plaintiff did not file a crossappeal raising this alleged error. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665 [as a general rule, a respondent who fails to file a cross-appeal cannot claim error in connection with the opposing party's appeal]; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.)
Because we conclude trial had already commenced at the time plaintiff requested a dismissal, section 581, subdivision (e) controls. As noted, under that provision, the trial court had no ability to accept plaintiff's request for dismissal without prejudice, absent a showing of good cause. Therefore, the court erred in granting plaintiff's request.
3. Attorney Fees
Defendants contend the trial court abused its discretion in denying their motion for attorney fees because defendants were the prevailing parties. In light of our conclusion on the invalidity of the order dismissing defendants without prejudice, the denial of attorney fees must be reversed.
DISPOSITION
As to the petition for writ of mandate in case No. B322748, the petition is granted. Let a peremptory writ of mandate issue directing the superior court to set aside the dismissal without prejudice and allow plaintiff, if requested, to dismiss the complaint against defendants with prejudice (§ 581, subd. (e)) or proceed to trial. As to the appeal in case No. B321769, the order denying defendants' motion for attorney fees is reversed without prejudice to either party pursuing them in the trial court following resolution of the case. Defendants shall recover their costs attributable to the writ proceeding in case No. B322748. As to the appeal in case No. B321796, the parties shall bear their own costs.
WE CONCUR: CURREY, P. J. MORI, J.