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Court of Appeal, Second District, Division 1, California.

FOODMAKER, INC., Plaintiff, Cross-defendant and Respondent, v. VONS COMPANIES, INC. et al., Defendant, Cross-complainant and Appellant.

No. B079201.

Decided: August 04, 1994

Munger, Tolles & Olson, Gregory P. Stone, Allison B. Stein, Kristin A. Linsley, Susan R. Szabo and Kristin S. Escalante, Los Angeles, for defendant, cross-complainant and appellant. Thorsnes, Bartolotta, McGuire & Padilla, Michael T. Thorsnes, Frederic L. Gordon, San Diego, and Suuzen Ty Anderson, Spring Valley, for plaintiff, cross-defendant and respondent.

We reverse an order directing the entry of a request for voluntary dismissal, holding that a previously filed cross-complaint deprived the plaintiff of its right to unilaterally dismiss this action.


In early 1993, a number of people became seriously ill and others died after eating contaminated hamburgers at Jack in the Box restaurants in California, Washington and Nevada.   Foodmaker, Inc., a San Diego corporation which owns and franchises Jack in the Box restaurants, had purchased frozen hamburger patties from several sources, including The Vons Companies, Inc.   On February 4, 1993, Foodmaker sued Vons and others in the San Diego Superior Court, seeking damages on a variety of strict liability and breach of warranty theories.   On April 9, Vons' motion to transfer the case to the Los Angeles Superior Court was granted.   After the transfer fees were paid, and after Foodmaker's request for reconsideration and its petition for a writ of mandate were denied (the former by the San Diego Superior Court, the latter by the Court of Appeal, Fourth Appellate District, Division One), the San Diego Superior Court ordered the case transferred and, on July 16, issued a Notice of Transmittal of the case to the Los Angeles Superior Court.

Meanwhile, on July 2, several franchisees sued Foodmaker and others in the San Diego Superior Court, alleging the adverse publicity about the contamination had diminished the value of their franchises.   On July 19, Foodmaker cross-complained against Vons in the franchisees' action, asserting essentially the same claims as those asserted in this action.

On the same day (July 19), Foodmaker filed in the San Diego Superior Court a request for the voluntary dismissal of this action but the clerk refused to accept it because the Notice of Transmittal had been filed.   The request for dismissal was returned to Foodmaker's lawyer who then asked Wendy Hill, his secretary, to telephone the Los Angeles Superior Court.   As directed, Ms. Hill called and ultimately asked a supervisor in the Judgments Department whether the Los Angeles Superior Court would accept a facsimile copy of a request for dismissal.   The supervisor answered affirmatively and a request for dismissal (reflecting the names of the parties and the San Diego case number and accompanied by a copy of the Notice of Transmittal) was faxed to the Los Angeles Superior Court.

Over the next several days, Ms. Hill called the Los Angeles Superior Court three or more times to determine whether the request for dismissal had been filed and entered but each time was told the court was not able to file her request for dismissal because the San Diego file had not yet been received.   On July 26, the file finally arrived.   The same day, Vons' attorney went to the Los Angeles courthouse, obtained the case number assigned to the transferred file, and (at a time when no one had acted on Foodmaker's request for dismissal) filed a cross-complaint by Vons against Foodmaker.

 On August 12, Foodmaker filed a motion to strike Vons' cross-complaint and “confirm the dismissal of the entire action pursuant to [Foodmaker's] request for dismissal,” contending that although its request for dismissal had never been filed or entered (either before or after Vons' cross-complaint was filed), it should be “deemed entered” as of the day it was received in Los Angeles (July 19), which would mean the cross-complaint was improperly filed after the action was dismissed.   On September 17, the motion was granted, the cross-complaint was stricken and the clerk was directed to file and enter Foodmaker's voluntary dismissal nunc pro tunc to July 19.   Vons appeals.1


Vons contends the request for dismissal was ineffective when submitted on July 19 because the Los Angeles Superior Court had not yet acquired jurisdiction and that the trial court's later nunc pro tunc order is a nullity because Vons' cross-complaint deprived Foodmaker of its right to voluntarily dismiss this action.   We agree.

 Under section 581 of the Code of Civil Procedure,2 an action may be voluntarily dismissed upon the written request of the plaintiff to the clerk, “filed with the papers in the case,” at any time before the commencement of trial, unless affirmative relief has been sought “by the cross-complaint of a defendant or if there is a motion pending for an order transferring the action to another court under the provisions of Section 396b.”  (§ 581, subds. (b)(1), (i);  emphasis added.) 3  A written request for dismissal “shall be entered in the clerk's register and is effective for all purposes when so entered.”  (§ 581d;  emphasis added.) 4

 At the time Foodmaker submitted its request for dismissal, there was no cross-complaint on file but the transfer from San Diego to Los Angeles was still pending (because the file was neither there nor here, but en route).   Accordingly, at the time the faxed request was received, the Los Angeles Superior Court had no jurisdiction to enter a dismissal.  (§ 581, subd. (i);  London v. Morrison (1950) 99 Cal.App.2d 876, 879, 222 P.2d 941 [the transferee court does not acquire jurisdiction “until the transfer fee has been paid and the papers filed in that court”];  Moore v. Powell (1977) 70 Cal.App.3d 583, 587–588, 138 Cal.Rptr. 914.)

In London v. Morrison, supra, 99 Cal.App.2d 876, 222 P.2d 941, a lawsuit was filed in the Los Angeles Superior Court.   On the defendant's motion, an order was made transferring venue to the San Diego Superior Court—but the transfer fees were not paid and the case therefore was not physically transferred.   On appeal, the court held the order granting the motion to transfer nevertheless divested the transferor court of jurisdiction to take any action (save dismissal for failure to pay the transfer fees).   And although the court to which an action is transferred obtains the same jurisdiction it would have had if the action had originally been filed there, the transferee court never acquired jurisdiction because the fees were not paid and, therefore, the file was never received.  (Id. at p. 879, 222 P.2d 941.)

To avoid the result compelled by London, Foodmaker contends the rules announced in that case apply only where the fees have not been paid and do not apply where, as here, the fees have been paid but the file is en route.   In our view, this is a distinction without a difference and we therefore apply the London rule to this case.  (See Brown v. Swickard (1985) 163 Cal.App.3d 820, 827, 209 Cal.Rptr. 844 [transferee court “assumed jurisdiction over the case” as of the date on which the “transfer of papers and fees ” were received from the transferor court].) 5

 Furthermore, we are not talking about a court that went ahead and entered a dismissal when it was without jurisdiction to do so.   To the contrary, we are talking about a court that recognized (as the supervisor told Ms. Hill) that it could not act upon Foodmaker's request for dismissal until it received the file.   As a result, when Vons' cross-complaint was filed, the voluntary dismissal was not effective because it had not been entered, and the cross-complaint was properly filed.  (§ 581d [a request for dismissal is effective when entered];  cf. Lavaysse v. Superior Court (1944) 63 Cal.App.2d 223, 227, 146 P.2d 686;  Fisher v. Eckert, supra, 94 Cal.App.2d at p. 894, 212 P.2d 64;  Hauptman v. Heebner, supra, 34 Cal.App.2d at p. 601, 94 P.2d 48;  Egly v. Superior Court (1970) 6 Cal.App.3d 476, 479, 86 Cal.Rptr. 18.) 6

 It adds nothing that the trial court ordered entry of the dismissal nunc pro tunc to July 19.   We know of no authority (and none is cited) which permits a court to use a nunc pro tunc order to confer jurisdiction on itself to cover a time when it was without jurisdiction.   Similarly, there is no benefit to Foodmaker from an abstract discussion about whether the trial court may receive a document (by fax, by mail or by carrier pigeon) and hold it for later filing.   Assuming (as Foodmaker contends) that this could have been done, it was not done in this case, and we therefore need not decide what would have happened had the dismissal been entered before Vons' cross-complaint was filed.7


The order directing entry of Foodmaker's voluntary dismissal and striking Vons' cross-complaint, and any subsequently entered order of dismissal, are reversed and the cause is remanded to the trial court with directions to fix the date for Foodmaker's response to Vons' cross-complaint.   Vons is awarded its costs of appeal.


1.   We summarily reject Foodmaker's contention that Vons should have appealed from the voluntary dismissal (In re Tomi C. (1990) 218 Cal.App.3d 694, 698, 267 Cal.Rptr. 210) and not, as it did, from the September 17 order directing entry of the dismissal nunc pro tunc.   The appeal is from the order finally disposing of this case and that order did not contemplate the issuance of any further orders, formal or otherwise.   (Gwinn v. Ryan (1949) 33 Cal.2d 436, 437, 202 P.2d 51;  Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 208–209, 30 Cal.Rptr.2d 678.)   Accordingly, it is immaterial that an appeal from the dismissal might also have been proper.

2.   All section references are to the Code of Civil Procedure.

3.   The transfer of this case from San Diego to Los Angeles was pursuant to section 396b, which outlines the procedures for transferring actions in a variety of situations, including where (as here) a motion for change of venue has been granted.

4.   As the statute says, a request for dismissal is effective when entered in the clerk's register (§ 581d) and the mere filing of the document (by physically placing it in the court file or imprinting it with a “filed” stamp) is not, at least on these facts, sufficient to make it “effective.”  (Hauptman v. Heebner (1939) 34 Cal.App.2d 600, 601, 94 P.2d 48 [holding that a request for dismissal “filed” on July 2 but not “entered in the clerk's register” was not effective at the time a judgment for the defendant was signed on November 7, and that the defendant was therefore entitled to file a cost bill and recover costs];  Fisher v. Eckert (1949) 94 Cal.App.2d 890, 894, 212 P.2d 64 [in the case of a voluntary dismissal by the plaintiff, it is the entry of the dismissal in the clerk's register that gives it the effect of a judgment].)

5.   Foodmaker's reliance on Nickola v. Superior Court (1952) 111 Cal.App.2d 620, 245 P.2d 20, is misplaced.   In Nickola, the request for dismissal was filed in the transferor court (San Mateo) before the file was transmitted to the transferee court (Sutter County).   It was physically placed in the file and thus transferred to Sutter along with the file, where it was “filed.”   On these facts and without mentioning whether the dismissal was ever entered in Sutter, the Third District held a subsequently filed cross-complaint was ineffective because the action had been voluntarily dismissed.  (Id. at p. 622, 245 P.2d 20.)   Since the defendant did not contend otherwise (if he had, it surely would have been mentioned in the opinion), we presume the request for dismissal was entered at or about the same time it was filed in the Sutter County Superior Court.

6.   There are cases, as Foodmaker asserts, which deem a request for dismissal effective upon filing.   In each of these cases, however, the failure to enter the dismissal was the result of a clerical or other ministerial error made at a time when there was no question about the court's jurisdiction to act.  (See, e.g., Kaufman v. Superior Court (1896) 115 Cal. 152, 156, 46 P. 904 [when the plaintiff has “the right to dismiss his action” at the time he files his request for dismissal, that right cannot be lost by the clerk's refusal to perform his duty];  Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782 [expressly noting that the defendants did not question the right of the plaintiff to dismiss];  Egly v. Superior Court, supra, 6 Cal.App.3d at pp. 479–480, 86 Cal.Rptr. 18;  Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931, 249 Cal.Rptr. 175.)   These cases do not apply where, as here, the clerk's refusal to enter the dismissal was proper because the court was without jurisdiction.

7.   To the extent Foodmaker is suggesting the clerks in the Judgments Department had some unspecified obligation to stand guard at the courthouse door, awaiting receipt of the file so they could act upon Foodmaker's request for dismissal before Vons was allowed access to the newly assigned case number, all we can say is this:  You have got to be kidding.   No such obligation exists by statute, court rule or otherwise.   If it did, it would be impossible to enforce.   Good intentions aside, the court is understaffed and overworked, as a result of which documents are frequently lost or misfiled.   In a race to the courthouse (which is what this was), we have little sympathy for Foodmaker, which was attempting to use the subsequently filed franchisees' action as a means to litigate with Vons in San Diego and, by its voluntary dismissal, avoid the change of venue order previously made in this action.   Of course, we express no opinion about what would happen if, in light of the franchisees' action, Foodmaker moved to coordinate the actions in San Diego or attempted by some other procedure to combine the two actions so as to avoid inconsistent judgments, a duplication of effort, a waste of judicial resources, and so on.

MIRIAM A. VOGEL, Associate Justice.

ORTEGA, Acting P.J., and MASTERSON, J., concur.

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