Opinion
B222507
08-19-2011
DAN JONES, Plaintiff and Appellant, v. CAROLYN SALAMEH, Defendant and Respondent.
Law Office of Brian C. Andrews and Brian C. Andrews for Plaintiff and Appellant. Menke Law Firm and Bruce R. Menke for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NC052063)
APPEAL from an order of the Superior Court of Los Angeles County, Joseph E. Di Loreto, Judge. Dismissed.
Law Office of Brian C. Andrews and Brian C. Andrews for Plaintiff and Appellant.
Menke Law Firm and Bruce R. Menke for Defendant and Respondent.
Plaintiff Dan Jones voluntarily dismissed his complaint before trial. (Code Civ. Proc., § 581, subds. (b)(1), (c).) He then filed a notice of appeal from a purported judgment of dismissal, and filed an opening brief seeking reversal of orders imposing $700 and $1,500 in discovery sanctions. We perceive the following jurisdictional problems with the appeal: (1) the trial court did not enter a judgment of dismissal; (2) plaintiff has failed to establish an exception to the general rule that a voluntary dismissal is not a final judgment and therefore is not an appealable order; and (3) because the court did not impose sanctions in excess of $5,000, neither order imposing sanctions is directly appealable (§ 904.1, subd. (a)(12)). Accordingly, we dismiss the appeal for lack of an appealable judgment or order.
All further undesignated statutory references are to the Code of Civil Procedure. Section 581 reads in pertinent part: "(b) 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. [¶] . . . [¶] (c) A plaintiff may 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."
FACTS AND PROCEDURAL BACKGROUND
On November 10, 2008, plaintiff sued defendants Mohammad Khalil Salameh, Nisreen Sabri Salameh, and Carolyn Salameh for operating a liquor store that allegedly does not comply with accessibility rules of the Americans with Disabilities Act. (42 U.S.C. § 12101 et seq.) During discovery, defendants moved to compel further responses to interrogatories and requested monetary sanctions. On August 7, 2009, the trial court granted the motion in part and ordered plaintiff and his counsel jointly and severally to pay $700 in sanctions. Subsequently, defendants moved for terminating sanctions and additional monetary sanctions on the ground that plaintiff had failed to comply with the August 7 order. On October 27, 2009, the trial court denied the motion for terminating sanctions, but ordered plaintiff and his counsel jointly and severally to pay an additional $1,500 in sanctions.
Carolyn Salameh is the only respondent to this appeal.
Trial was set for December 8, 2009. On the day before trial, plaintiff filed a request for voluntary dismissal with prejudice under section 581. On February 5, 2010, plaintiff filed a notice of appeal from a purported judgment of dismissal. In his opening brief, plaintiff contends the August 7 and October 27, 2009 orders imposing sanctions must be reversed.
DISCUSSION
When a plaintiff files a timely request for voluntary dismissal with prejudice under section 581, subdivisions (b) and (c), it ordinarily takes immediate effect. "Pursuant to . . . section 581, subdivisions (b) and (c), plaintiffs have the right to voluntarily dismiss an entire action, or causes of action within a pleading, before the commencement of trial. A request for a dismissal is usually effective upon filing, and no other action by the clerk or the court is required. (Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931 (Aetna Casualty).) '"[N]either the clerk nor the trial court has any discretion in the matter. [Citation.]" (O'Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 659.)' (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 866; see Aetna Casualty, supra, at p. 931.) Upon the proper filing of a request to voluntarily dismiss a matter, 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; accord, Conservatorship of Martha P., supra, at p. 866.) '[A]ll subsequent proceedings [are] void.' (Aetna Casualty, supra, at p. 931; accord, Gogri v. Jack in the Box Inc., supra, at p. 261.)" (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876.) "A voluntary dismissal, unlike a dismissal ordered by the court, requires no formal, signed order. Rather, a voluntary dismissal 'shall be entered in the clerk's register and is effective for all purposes when so entered' (Code Civ. Proc, § 581d)." (M & R Properties v. Thomson (1992) 11 Cal.App.4th 899, 902.)
Because plaintiff filed a timely voluntary dismissal of the complaint, there are several jurisdictional problems with this appeal. One difficulty is that although plaintiff contends the "[a]ppeal is taken from final Judgment," the record does not contain a judgment of dismissal.
The record does contain a voluntary dismissal, but the general rule is that a voluntary dismissal is not a final judgment and therefore is not an appealable order. "A voluntary dismissal under Code of Civil Procedure section 581, subdivision (b)(1) by written request to the clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the dismissal. (Lavaysse v. Superior Court (1944) 63 Cal.App.2d 223, 227; see also Gray v. Kay (1975) 47 Cal.App.3d 562, 565.) A voluntary dismissal is a ministerial act, not a judicial act, and not appealable. (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761 ['By the clerk's entry no judicial act has been exercised from which appeal may be prosecuted.'].)" (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1364-1365.)
Plaintiff has provided no valid basis to depart from the general rule that a voluntary dismissal is not a final judgment and therefore is not an appealable order. Plaintiff does not argue (nor does the record indicate) that because a final dismissal by the court was inevitable, his appeal should be treated as an appeal from a final judgment. Given that the trial court had denied defendants' motion for terminating sanctions, it does not appear that a final dismissal by the court was inevitable and therefore the appeal should not be treated as an appeal from a final judgment.
Plaintiff cites In re Marriage of Niklas (1989) 211 Cal.App.3d 28 for the proposition that discovery orders and sanctions may be reviewed in an appeal from a final judgment. This proposition does not assist plaintiff because, as we have explained, there was no final judgment in this case. Moreover, the facts of Niklas are distinguishable. Niklas involved a marriage dissolution proceeding in which the trial court had imposed discovery sanctions of $45,000 on the wife and her attorney. At the time, discovery sanctions orders of any amount were not directly appealable. (See Rail-Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 471 [prior to legislation enacted in 1989, orders imposing discovery sanctions were not appealable].) We therefore dismissed the appeal of the wife and her attorney from the sanctions order on the ground that the order imposing discovery sanctions was not appealable, but we treated the appeal as an application for extraordinary writ relief. We concluded that it was appropriate to treat the appeal as an application for extraordinary relief "in part because the monetary sanctions at issue were imposed in response to an earlier order from this court." (In re Marriage of Niklas, supra, 211 Cal.App.3d at p. 34.) We did not consider in Niklas whether to treat an appeal from a voluntary dismissal as a petition for extraordinary relief. Plaintiff has cited no basis for doing so in this case.
In this case, because neither sanctions order exceeded $5,000, neither order is directly appealable. (§ 904.1, subd. (a)(12) [sanctions orders in excess of $5,000 are directly appealable].) Although the orders would be reviewable in an appeal from a final judgment, no final judgment was entered in this case. We therefore conclude that the appeal must be dismissed for lack of an appealable judgment or order.
DISPOSITION
The appeal is dismissed. Defendant Carolyn Salameh is awarded her costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
WILLHITE, Acting P.J.
MANELLA, J.