Opinion
A148781
12-22-2016
CODY SIERRA MOLICA, Plaintiff and Appellant, v. JOE LACOME, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV084999) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1), (3).
This case has a tangled procedural history, but most of it is irrelevant to the present appeal and will not be recounted. As relevant here, in May 2011, we issued a decision reversing the trial court's grant of a motion to vacate a default judgment entered against defendant Joe LaCome. (Molica v. Lacome (May 13, 2011, A129681) [nonpub. opn.] (Molica I).) Remittitur issued from this court on July 18, 2011, and the trial court, pursuant to our direction in Molica I, reinstated the default judgment in an order dated August 25, 2011. In July 2015, plaintiff Cody Sierra Molica filed a document acknowledging that the judgment had been satisfied in full.
In May 2016, LaCome made a motion to vacate the reinstated judgment, arguing that because Molica filed a request for dismissal of the action in June 2011, after Molica I was rendered but prior to the issuance of our remittitur, the trial court's later order reinstating the judgment was "void." Attached to LaCome's motion was a copy of a request for dismissal signed by Molica and bearing a file stamp of June 20, 2011. The portion of the request reflecting entry of the dismissal by the clerk of the court, however, is blank. Notwithstanding the apparent failure by the clerk to enter the dismissal, the trial court granted LaCome's motion.
In his respondent's brief on appeal, LaCome claims the trial court properly vacated the judgment because the court docket shows Molica's voluntary dismissal was entered by the clerk the day following the filing of his request. As LaCome argues, "The docket speaks for itself, and is the most damning piece of evidence against Molica's meandering, often illogical arguments he has raised on appeal." We agree the docket speaks for itself, but it says different things to us than it does to LaCome's counsel. The docket reflects the filing of the request for dismissal by Molica on June 20, 2011, but the docket entry for the next day says nothing about entry of the dismissal. Instead, it states in its entirety, "Appearance dropped for 07/19/2011 at: 09:00 AM for appearance type: LMCV in Department: D03 drop reason: per pltf. Molica-matter resolved & dismissed." The reference to dismissal of the lawsuit is merely a recitation of Molica's communication to the clerk, not a confirmation by the clerk that the request for dismissal had been entered. The docket therefore confirms the impression created by the request itself. Although Molica filed a request for dismissal, the dismissal was never entered.
There is no indication in the appellate record of the reason for the clerk's failure to enter the dismissal. Molica speculates the clerk was aware that, prior to issuance of the remittitur following Molica I, the superior court lacked jurisdiction to dismiss the action. (Swan v. Riverbank Canning Co. (1947) 81 Cal.App.2d 555, 558.) The clerk could also have been aware that a plaintiff cannot voluntarily dismiss an action once judgment has been entered. (Goldtree v. Spreckels (1902) 135 Cal. 666, 673.) Because our decision in Molica I had reinstated the judgment, Molica's dismissal would have been ineffective even if entered. (See Bank of America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1210 [voluntary dismissal ineffective if determinative adjudication has been made, even if judgment has not yet been entered pursuant to the adjudication].) Either way, the clerk acted prudently in declining to enter the dismissal.
Because Molica's request for dismissal was never entered, and because it would, in any event, have been ineffective given the reinstatement of the judgment by Molica I, the trial court erred in granting a motion to vacate. The trial court's order must be reversed.
In a motion to dismiss, LaCome contends we should dismiss this appeal as moot because "[t]here is no live controversy between the parties, besides Molica's self-created outrage that the lower court voided a judgment that was improperly entered. This is yet another attempt by Molica to harass [LaCome]." An appeal becomes moot when it is " 'impossible for [the appellate] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever.' " (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) This appeal is not moot because there is effectual relief we can grant. We can require the trial court to reinstate a judgment that should not have been vacated. While there is little practical consequence to this relief, since the judgment has been satisfied, the existence of the judgment was sufficiently important to LaCome for him to make a motion to vacate it. We are therefore unwilling to hold that Molica's contrary request is undeserving of our attention.
Because we deny the motion to dismiss on this ground, we deny as immaterial Molica's request for judicial notice, filed in opposition to the motion to dismiss. --------
The trial court's order of June 15, 2016 granting LaCome's purported motion to vacate the judgment is reversed, and the matter is remanded to the trial court with directions to reinstate the judgment. Molica may recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.