Opinion
A140242 A141119
11-30-2017
MAUREEN KEATING, Plaintiff and Appellant, v. LG ELECTRONICS MOBILECOMM USA INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG11593777)
In these consolidated cases, plaintiff Maureen Keating, in propria persona (pro. per.), purports to appeal from a number of orders issued by the trial court in connection with her motor vehicle negligence and product liability action. In the first appeal (A140242), involving respondent LG Electronics Mobilecomm USA, Inc. (LG), Keating appeals from the trial court's refusal to allow various amendments to her complaint shortly before trial. In her second appeal (A141119), Keating challenges the trial court's denial of her motion for new trial, made after the court entered judgment in favor of respondent Chenhang Sun. Keating, however, voluntarily dismissed LG from the case before trial, and the only documentation in the record indicates that this dismissal was without prejudice. As for her dispute with regard to the subsequent judgment in Sun's favor, the record contains a stipulation executed by both Keating and Sun which clearly states that both parties waived the right to appeal the matter. Since we conclude Keating has not appealed from any appealable judgment or order in this case, we dismiss both appeals.
I. BACKGROUND
These proceedings are the result of an automobile accident involving Keating and Sun, which both parties claim was caused by the other party running a red light. According to Keating, when her car was struck, among other injuries, her head came in contact with a hands-free Bluetooth device she had affixed to her windshield. In September 2011, while represented by counsel, Keating filed a complaint in Alameda County Superior Court alleging a first cause of action for motor vehicle negligence against Sun and a second cause of action for product liability against several Doe defendants involved in the manufacture and sale of the Bluetooth device. Respondent LG was added to the case by way of Doe amendment in February 2012.
A trial date was eventually set for February 2013. In mid-December 2012, Keating's attorney sought to continue the trial so Keating could substitute new counsel. In connection with this request, the parties executed a written stipulation to the continuance which expressly provided it was "for the continuance of the trial date only and does not alter or modify the current discovery cut-off or other dates relevant to any pleading matters." The trial court granted the continuance in January 2013—moving the trial to September 2013—and shortly thereafter Keating substituted herself in pro. per. for her previous counsel. At that point, trial was eight months away.
Almost six months later in July 2013, Keating—still in pro. per.—filed a motion seeking to amend her complaint, designate the case as complex, reopen discovery, and further continue the trial date. Although her boss, an attorney, had agreed to handle the case for her, he had a conflict with the scheduled trial date. After opposition from LG, the court denied Keating's motion in August 2013, stating: "The Court will not permit Plaintiff, less than one month before trial, to amend her Complaint and transform this personal injury case into a class action alleging violation of the Unfair Business Practices Act and Consumer Legal Remedies Act . . . ." The court further concluded Keating had not shown good cause for a continuance, opining that she had not "demonstrated reasonable diligence in attempting to obtain the discovery she contends she needs in this case."
Thereafter, on August 28, 2013, Keating filed a pleading attempting to amend her complaint to name additional defendants LG Electronics, Inc. and Clipcomm, Inc. On September 6, 2013, the parties appeared for trial and participated in a trial conference during which Keating reportedly made an oral request to amend her complaint to include a claim for failure to warn. On the second day of trial, September 11, 2013, the trial court rejected Keating's attempt to add the two Doe defendants as untimely and further denied her motion to amend the complaint. Keating then made a voluntary oral motion to dismiss LG from the case, which the court granted.
Trial then proceeded with respect to defendant Sun based on a stipulation entered into between the remaining parties, pursuant to which, among other things, both Keating and Sun waived their rights to a jury trial and to appeal (Stipulation). After the presentation of evidence, the trial court entered judgment in favor of Sun. Keating's subsequent motion for new trial was denied. These appeals followed.
II. DISCUSSION
A. Voluntary Dismissal of LG
Keating first purports to appeal from the trial court's orders denying her motion to amend the complaint to add a failure to warn claim, striking her attempted Doe amendments, and dismissing respondent LG from the case (A140242). In the context of this appeal, she raises numerous claims of error with respect to the proceedings below, including that the trial court improperly imputed the many failings of her prior attorney to her; impermissibly demanded that she pay monetary sanctions attributable to that attorney; erroneously denied her initial motion to amend the complaint, designate the case as complex, reopen discovery, and continue the trial so that she could retain counsel; wrongly ordered her attempted Doe amendments stricken as untimely; and incorrectly refused to allow her subsequent request to amend her complaint by adding a claim for failure to warn. However, as stated above, after the trial court had issued all of these challenged orders—but prior to the commencement of trial—Keating voluntarily made an oral motion to dismiss LG from the case, which the trial court granted. By doing so, she lost the ability to challenge these many interim rulings on appeal.
In this context, a trial is deemed to 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." (Code Civ. Proc., § 581, subd. (a)(6).) All further statutory references are to the Code of Civil Procedure unless otherwise indicated. All rule references are to the California Rules of Court. --------
Pursuant to section 581, subdivision (b)(1), a civil action may be dismissed by a plaintiff "[w]ith or without prejudice, . . . by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any." While a dismissal with prejudice may be viewed as tantamount to a final judgment, preserving issues for appellate review (see Goldbaum v. Regents of the University of California (2011) 191 Cal.App.4th 703, 708; Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 792-793 [voluntary dismissal with prejudice to expedite appeal after adverse ruling treated as judgment for purposes of appeal]), it is well established that a voluntary dismissal without prejudice under section 581 is not appealable (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975 (Gutkin)). Rather, such a voluntary dismissal acts as an "absolute withdrawal" of the plaintiff's claim and leaves the defendant as though he or she "had never been a party." (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761.) As a consequence, the plaintiff loses his or her ability to challenge any interim orders of the trial court. (Gutkin, at p. 975; see also Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1424, 1428-1429.)
Here, the minute order granting Keating's dismissal request with respect to LG does not indicate whether the dismissal was with or without prejudice, stating only that Keating's motion was granted and that she should prepare an order for the court's approval and signature. Apparently Keating never did so, as the order ultimately signed by the trial court was prepared by counsel for LG. That order expressly states that Keating made an oral motion to dismiss defendant LG "without prejudice" and that the court therefore dismissed LG "without prejudice."
Despite this seemingly clear evidence to the contrary, Keating now insists that she fully intended to preserve her rights to appeal this matter and suggests that this court "read the dismissal as to be with prejudice" because that was her intent. In support of her position, Keating cites Tudor Ranches, Inc. v. State Compensation Insurance Fund (1998) 65 Cal.App.4th 1422 (Tudor Ranches) and Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213 (Arciniega) for the proposition that a minute order entering a voluntary dismissal is presumed to be with prejudice, absent a contrary contention from the plaintiff. In Arciniega, the plaintiff had settled a malpractice action against some former attorneys for $60,000 and the matter was then ordered dismissed. (Arciniega, at p. 216.) In a subsequent appeal from a second action, the appellate court stated that, although the minute order in the malpractice action was silent as to whether the dismissal was with or without prejudice, it would assume it was with prejudice "because plaintiff does not contend otherwise." (Id. at p. 216 & fn. 1.) The issue was important in Arciniega because a dismissal with prejudice by a plaintiff bars a subsequent action on the same cause and the appellate court was considering whether the prior malpractice action constituted the "same cause" as the action on appeal. (Id. at pp. 228-229.) In Tudor Ranches, a stipulated judgment initially stated that certain unadjudicated claims were dismissed voluntarily, without prejudice, but before the judgment was signed by the trial court it was modified by interlineation to delete the provision that the dismissal of those claims was without prejudice. (Tudor Ranches, at pp. 1427-1428.) On appeal, the plaintiff took the position that the dismissal was with prejudice and the appellate court, citing Arciniega, agreed. (Id. at p. 1430.)
We do not find these cases controlling for the obvious reason that neither addressed a situation where there was direct evidence that the voluntary dismissal at issue was without prejudice. Indeed, in Tudor Ranches, there was documentary evidence to the contrary. (Tudor Ranches, supra, 65 Cal.App.4th at pp. 1427-1428.) And Arciniega involved a dismissal after settlement, a situation which generally disposes of all claims between the parties. (Arciniega, supra, 52 Cal.App.4th at p. 216 & fn. 1.) Thus, the surrounding circumstances in each case, although ambiguous, supported a "with prejudice" finding.
Here, in contrast, we are presented with a signed trial court order expressly stating Keating's voluntary dismissal of LG was without prejudice. Such an order is presumed to be correct on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) In addition, the minute order at issue—although admittedly ambiguous as to the type of voluntary dismissal granted—clearly contemplated the preparation of a follow-up order. "[W]hen the trial court's minute order expressly indicates that a written order will be filed, only the written order is the effective order." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) Moreover, although Keating now asserts she did not intend to give up her appeal rights by voluntarily dismissing LG from the litigation, she did nothing to attempt to correct the challenged order below, nor did she provide this court with any kind of a record describing the parties' discussions with the trial court in connection with the voluntary dismissal. (See rule 8.137 [allowing for a use of a settled statement where oral proceedings were not reported].) We therefore conclude the voluntary dismissal at issue was without prejudice, as reflected by the court's written dismissal order.
"The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed. [Citation.]" (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) Given the record before us, this rule clearly applies to Keating's first appeal involving LG (A140242), and we therefore have no choice but to dismiss the matter. B. Purported Appeal from New Trial Motion After Verdict in Favor of Sun
Keating's second appeal (A141119), involving Sun, is purportedly from the trial court's order denying her motion for new trial. In the context of this appeal, Keating contests a host of trial court rulings made throughout the course of the proceedings below. However, as stated above, prior to the commencement of the bench trial in this matter, both Sun and Keating stipulated to waive their respective rights to appeal. In particular, with respect to appellate rights, the Stipulation provides: "Both parties agree to waive any appeal as between Plaintiff Keating and Defendant Sun only and agree that Judge Delbert Gee's decision or awards will be final and binding." The Stipulation was executed by both parties and the trial judge.
Despite the express terms of the Stipulation, Keating now argues she was improperly coerced by the trial judge into waiving her appeal rights, and thus she should not be held to the waiver memorialized in the Stipulation. In support of this claim, Keating cites McConnell v. Merrill Lynch, Pierce, Fenner & Smith (1985) 176 Cal.App.3d 480. In that class action proceeding, Merrill Lynch contended the trial court acted improperly by requiring it to waive its right to appeal as a condition to approving a proposed settlement agreement. (Id. at p. 488.) The appellate court first reviewed the applicable law in this area, stating: "It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions: 1. The attorney must have the authority to waive a party's right to appeal. 2. The waiver must be express and not implied. 3. The waiver must not have been improperly coerced by the trial judge." (Ibid.) The court then went on to determine that Merrill Lynch's waiver of its right to appeal had not been improperly coerced by the trial judge, but rather "was part of complicated negotiations concerning a settlement agreement." (Ibid.) Merrill Lynch was thus precluded from appealing the matter.
Similarly, in this case the Stipulation at issue is, on its face, clearly a negotiated document in which each party gave up certain rights in return for other concessions. Thus, for example, both parties gave up their rights to a jury trial, to appeal, and to pursue costs of suit at the conclusion of the trial. In addition, Sun agreed that Keating could retain and call a damages expert without objection based on lack of disclosure or timeliness, and Keating agreed that any damage award would be capped at $100,000. Although Keating now argues she was unlawfully induced to make these concessions by the trial court, there is no indication in the record of any coercion other than the sworn statements of Keating herself, which were submitted in connection with her motion for new trial and disputed under oath by Sun's trial attorney. (Cf. Wuest v. Wuest (1942) 53 Cal.App.2d 339 [allegations in complaint that trial judge in divorce proceeding threatened to withhold divorce to which wife was otherwise entitled unless she stipulated to receiving her share of community property over a period in excess of 23 years and to waiving findings of fact so that no appeal could be taken were assumed to be true and held sufficient to survive demurrer].) Under such circumstances, we must hold Keating to the terms of her bargain and conclude that she had no right to appeal from the trial court's resolution of this case.
III. DISPOSITION
The appeals are dismissed. Each party to bear their own costs. (Rule 8.278(a)(5).)
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.