Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. William A. Mayhew, Judge, Super. Ct. No. 617989
Pursley Law Firm and E. Eugene Atherton for Intervener and Appellant.
Moorad Clark & Stewart, Adam J. Stewart and Scott G. Lyon for Plaintiff and Respondent.
OPINION
CORNELL, J.
Modesto City Schools (MCS) filed a complaint in intervention in a civil suit filed by Michelle Dalrymple. Dalrymple’s suit sought to recover damages against those she believed were liable for severe injuries she sustained in an accidental shooting. MCS sought to recover sums it had paid to Dalrymple as a result of a worker’s compensation claim Dalrymple filed for those injuries.
MCS’s attempt to dismiss without prejudice its complaint in intervention was refused by the clerk’s office. The trial court then granted Dalrymple’s motion to dismiss the compliant with prejudice after settling or arbitrating her claims against all defendants in the civil suit. MCS appeals, contending that the clerk’s office did not have the authority to refuse to file its timely and properly prepared request for dismissal without prejudice. We agree and will reverse the trial court’s order and order the trial court to file MCS’s request for dismissal without prejudice.
FACTUAL AND PROCEDURAL SUMMARY
Dalrymple was attending a course offered through MCS, but provided by an independent contractor. During a classroom break, a firearm accidentally discharged, causing Dalrymple serious permanent injuries. The firearm was brought to the class by fellow student Mick Rubalcava. The firearm, which was inside Rubalcava’s backpack, discharged when the backpack was placed on the floor.
Dalrymple was determined to be an employee of MCS and pursued a worker’s compensation claim. She also filed a civil action against Rubalcava and numerous defendants. MCS filed a complaint in intervention in the civil action seeking to recover from defendants all sums it was required to pay Dalrymple as a result of her worker’s compensation claim. Dalrymple filed an answer to MCS’s complaint in intervention, denying all allegations and alleging that MCS’s comparative fault contributed to her injuries.
Dalrymple settled her claims against all of the defendants except Rubalcava. On November 4, 2008, Dalrymple and Rubalcava filed a stipulation and order sending their claims to binding arbitration. The arbitrator’s award was filed on November 13, 2008. The award found Rubalcava immune from liability as he was a co-employee of Dalrymple pursuant to Labor Code section 3601. The arbitrator also concluded that MCS’s negligence contributed 35 percent to Dalrymple’s injuries. MCS did not participate in the arbitration, as Dalrymple and Rubalcava believed that MCS had dismissed with prejudice its complaint in intervention.
MCS admits that on October 29, 2008, before the arbitration hearing, it mailed to the clerk’s office a request to dismiss with prejudice the complaint in intervention. On November 13, 2008, MCS learned from the clerk’s office that it had not received the request for dismissal of the complaint in intervention. MCS then mailed to the clerk’s office a second request to dismiss with prejudice the complaint in intervention. The clerk’s office later informed MCS that it did not receive the second request. On November 19, 2008, MCS prepared a third request for dismissal of the complaint in intervention. In light of the arbitrator’s conclusions regarding MCS, this request instructed the clerk to dismiss the complaint in intervention without prejudice. This request for dismissal was hand delivered to the clerk’s office on November 19, 2008. The clerk’s office ultimately rejected the request for dismissal because it did “not comply with terms of [the] Arbitration Award.”
After judgment was entered pursuant to the arbitrator’s award, Dalrymple made a motion to dismiss MCS’s complaint in intervention. The motion argued that the complaint in intervention should be dismissed with prejudice because MCS apparently served Dalrymple with a copy of a request for dismissal with prejudice, and Dalrymple relied on the request in agreeing to arbitrate her dispute with Rubalcava. According to Dalrymple, MCS was attempting to take advantage of the missing dismissal with prejudice by now attempting to dismiss the complaint in intervention without prejudice. Dalrymple clearly was attempting to take advantage of the arbitrator’s gratuitous finding that MCS’s negligence contributed 35 percent to her injuries.
MCS opposed the motion on two grounds. First, arguing that because the clerk’s office represented it never received either of the dismissals with prejudice MCS had mailed, MCS had the right to dismiss the complaint in intervention, either with or without prejudice. Second, MCS also argued that the clerk’s office did not have the authority to reject its request for dismissal without prejudice that was delivered personally to the clerk.
The trial court granted Dalrymple’s motion, citing “continuous problems with the functioning of the Clerk’s Office over the last several months.”
DISCUSSION
MCS contends Dalrymple’s motion should have been denied and the clerk ordered to file the request for dismissal without prejudice it delivered to the clerk’s office on November 19, 2008. It argues that because there is no evidence that either of the two dismissals it mailed ever were received by the clerk’s office, their mailing is irrelevant.
Code of Civil Procedure section 581, subdivision (b)(1) provides that an action may be dismissed “[w]ith or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case … at any time before the actual commencement of trial, upon payment of the costs, if any.” Similarly, section 581, subdivision (c) permits a plaintiff to “dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.”
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
“Code of Civil Procedure section 581 allows a plaintiff to voluntarily dismiss, with or without prejudice, all or any part of an action before the ‘actual commencement of trial.’ [Citation.] The California Supreme Court stated: ‘Apart from certain... statutory exceptions, a plaintiff’s right to a voluntary dismissal [before commencement of trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action.’ [Citation.] Alternatively stated, voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction in that case, except for the limited purpose of awarding costs and statutory attorney fees. [Citations.] ‘An order by a court lacking subject matter jurisdiction is void. [Citation.]’ [Citation.]” (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261, fns. omitted.)
Upon presentation of a timely and properly prepared request, neither the clerk nor the trial court has discretion to refuse to file a dismissal. (O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 659.) Indeed, the filing of a voluntary dismissal is a ministerial act, and not a judicial act. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 (Arnaiz).)
Dalrymple makes three arguments that the clerk’s office correctly rejected MCS’s request for dismissal. First, Dalrymple asserts that MCS’s act of mailing the first request for dismissal with prejudice was sufficient to require the clerk to enter the dismissal of the complaint in intervention with prejudice.
Section 581, subdivision (b)(1) requires that the written request of the plaintiff to dismiss the action must be “filed with the papers in the case.” Since merely mailing a request for dismissal does not ensure that the clerk’s office will receive the request for dismissal or that it will be filed with the papers in the case, simply depositing a request for dismissal in the mail is insufficient to cause the clerk to enter a dismissal of the matter. As there is no evidence in this case that the first request for dismissal was received by the clerk’s office, nor is there evidence that the request was filed with the papers in the case, the first request did not result in dismissal of the case.
Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, the case on which Dalrymple relies, does not support her argument. Aetna attempted to dismiss its complaint for declaratory relief by presenting to the clerk a request for dismissal. The clerk, apparently on orders from the trial court, refused to file the dismissal and the matter proceeded to trial. Aetna appealed after an adverse judgment. The appellate court concluded that the clerk’s office should have filed the request for dismissal. “Here, the clerk refused to file the request or enter the dismissal. Since Aetna did everything within its power to comply with the statute at a time when its right to dismiss was absolute, the absence of an actual filing of the request or entry of dismissal is excused. The trial court was without power to prevent the filing of the request for dismissal [citation] and the clerk was without power to prevent entry of the dismissal. [Citation.] The dismissal was effective upon tender of the request and all subsequent proceedings were void. [Citations.] ‘[T]he failure of the clerk to perform his ministerial duties by entering the dismissal in the register, and causing a proper judgment of dismissal to be entered in his judgment-book, should not and cannot be allowed to affect the substantial rights of the parties.… [P]laintiff at that time had the right to dismiss his action, and had taken all the proper steps to that end, [and] that right could not be impaired or lost by the refusal of the clerk to perform a plain duty.…’ [Citations.]” (Id. at p. 931.)
Dalrymple attempts to equate MCS’s deposit of a request for dismissal with prejudice into the mail with the tender of Aetna. Cleary, the two situations are not the same. Aetna’s request for dismissal was received by the clerk’s office, and it is this tender to which the opinion refers. There is no evidence that MCS’s request for dismissal was received by the clerk’s office. Accordingly, it was not tendered, as that word was used in Aetna.
Second, Dalrymple contends that MCS’s request for dismissal was untimely because it was required to be filed before the commencement of trial, and trial in the matter had occurred. This argument fails because the arbitrator’s award here did not resolve MCS’s complaint in intervention. The parties believed, and informed the arbitrator, that MCS had dismissed its complaint in intervention. MCS did not stipulate to the arbitration, and did not participate in it. The arbitrator thus had no authority to make a binding determination of MCS’s rights. Therefore, trial did not commence on the complaint in intervention. Accordingly, MCS’s request for dismissal was timely within the meaning of section 581.
We note that because MCS was not a party to the arbitration, its interests were not represented in the arbitration. Thus the arbitrator’s conclusions that MCS’s negligence was a contributing factor to Dalrymple’s injuries and that his decision would be entitled to preclusive effect are highly questionable.
Finally, Dalrymple argues that MCS should be estopped from requesting a dismissal be entered without prejudice because she and Rubalcava both relied on MCS having mailed two requests for dismissal with prejudice to the clerk’s office. This argument demonstrates the procedural errors that have led to this appeal.
As in Aetna, since MCS’s request for dismissal without prejudice was timely, its right to dismiss was absolute, and both the clerk and the trial court were without authority to refuse to dismiss the complaint in intervention.
This does not mean, however, that Dalrymple was without a remedy. After the dismissal was entered, Dalrymple could have made a motion to vacate the dismissal. (See, e.g., Arnaiz, supra, 96 Cal.App.4th at pp. 1364-1367.) That is the method by which Dalrymple could have made her estoppel argument. Such a motion was not made.
Thus, Dalrymple’s estoppel argument fails.
DISPOSITION
The trial court’s order dismissing MCS’s complaint in intervention with prejudice is reversed, and the trial court is directed to file the dismissal without prejudice of the complaint in intervention delivered to it by MCS on November 19, 2008. MCS shall recover its costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.