WELLS v. MARINA CITY PROPERTIES INC (1980)

The controlling issue is whether a plaintiff may dismiss an action without prejudice under Code of Civil Procedure section 581, subdivision 1, after the trial court has sustained a demurrer with leave to amend and the time allowed for amendment has expired. We have concluded that such a dismissal is untimely, and therefore ineffective, despite language in two recent cases expressing the contrary view.

On August 4, 1978, the trial court sustained a general demurrer to each count of the plaintiff's complaint, with leave to amend within 30 days. The time to amend was later extended to September 26, but no amended complaint was filed. On October 5, 1978, defendants gave notice of a motion to be heard October 20 for a dismissal with prejudice pursuant to Code of Civil Procedure section 581, subdivision 3. On October 6 plaintiff filed a request for dismissal without prejudice pursuant to section 581, subdivision 1, and the clerk entered the dismissal.¹ Plaintiff gave notice of this dismissal to defendants with a letter stating “This action will be refiled.”

On October 20 the court heard defendants' motion and on October 25 signed an order (i. e., a judgment) dismissing the action with prejudice.

On October 25 plaintiff gave notice of a motion to set aside the October 25 judgment upon the ground that the October 6 dismissal had terminated the court's jurisdiction. On November 9 the court granted plaintiff's motion and filed an order on November 13 setting aside the October 25 judgment.

On November 24, defendants filed a motion for an order either (a) striking the voluntary dismissal, or (b) modifying that dismissal to make it “with prejudice.” On December 8 the trial court denied that motion.

On January 5, 1979, defendants filed a notice of appeal from both the November 9 minute order (i. e., the signed order of November 13) and from the December 8 order.

Insofar as the notice of appeal refers to the December 8 order it is ineffective. The November 24 motion, which was decided December 8, asked only that the trial court reverse the decision it had made by the November 9 order. No appeal may be taken from an order denying a motion to vacate an appealable order when the objective of the motion is to change the decision of the trial court on the same facts. (See Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 44, 162 P.2d 8.) The appeal from the December 8, 1978, order must be dismissed.

Code of Civil Procedure section 581, subdivision 1, now provides as follows:

“An action may be dismissed in the following cases:

“1. By plaintiff, by written request to the clerk, filed with the papers in the case, or by oral or written request to the judge where there is no clerk, at any time before the actual commencement of trial, upon payment of the costs of the clerk or judge; provided, that affirmative relief has not been sought by the cross-complaint of the defendant, . . . A trial shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or his counsel, and if there shall be 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.”

The underlined portions were added in 1947. (Stats.1947, ch. 990, s 1.)

It is not disputed that a plaintiff's right to request a dismissal under the conditions stated in that subsection is absolute; and when such a request is filed the dismissal is effective and the court has no jurisdiction to proceed in disregard of the dismissal. (Egly v. Superior Court (1970) 6 Cal.App.3d 476, 86 Cal.Rptr. 18.) The issue here is whether the October 6, 1978, request was timely.

In Goldtree v. Spreckels (1902) 135 Cal. 666, 67 P. 1091, after a demurrer had been sustained to two causes of action in the complaint, and prior to trial on the third, the plaintiff filed a written request for a dismissal of the action, which the clerk entered. Defendant's attorneys objected. The trial court ruled that a trial had been had when the court sustained the general demurrer to the two causes of action. It therefore set aside plaintiff's dismissal and entered judgment for defendant on the first two causes of action. Plaintiff appealed from the order cancelling the dismissal, and from the judgment.

The reasoning of the Supreme Court commenced with the observation that the Code of Civil Procedure declared that issues were of two kinds, namely of law and of facts, and that issues of law were tried by the court. (ss 588, 591.) The court reviewed the earlier decisions in California and elsewhere on the meaning of “trial” as used in section 581 and in comparable statutes, and stated its conclusion thus: “In our opinion, the subdivision of the section 581 of the Code of Civil Procedure in question cannot be restricted in its meaning to trials of the merits after answer, for there may be such a trial on a general demurrer to the complaint as will effectually dispose of the case where the plaintiff has properly alleged all the facts which constitute his cause of action. If the demurrer is sustained, he stands on his pleading and submits to judgment on the demurrer, and, if not satisfied, has his remedy by appeal. In such a case, we think, there would be a trial within the meaning of the code, and the judgment would cut off the right of dismissal, unless it was first set aside or leave given to amend. (P) The clerk had no authority, therefore, to enter the dismissal, and, being void, the court rightly set it aside.” (Pp. 672-673, 67 P. p. 1093.)

The reasoning of the Goldtree case that an order sustaining a demurrer without leave to amend is a “trial” within the meaning of section 581 has been followed and applied in a variety of situations: Berri v. Superior Court (1955) 43 Cal.2d 856, 279 P.2d 8; Stuart v. Crestview Mut. Water Co. (1973) 34 Cal.App.3d 802, 812, fn. 10, 110 Cal.Rptr. 543; London v. Morrison (1950) 99 Cal.App.2d 876, 879, 222 P.2d 941; Erganian v. Brightman (1936) 13 Cal.App.2d 696, 700, 57 P.2d 971; see 4 Witkin Cal.Procedure (2d ed. 1971) Proceedings Without Trial, s 51, p. 2716.

The teaching of this line of cases is that a hearing on issues of law which disposes of the controversy is a trial within the meaning of sections 581 and 583.

Two recent opinions have injected confusion into what has otherwise been a sound and salutary rule of procedure. Both of these opinions assert that the 1947 amendment to section 581, subdivision 1, changed the rule established in Goldtree. With all due respect, we are obliged to point out that that assumption cannot be reconciled with the reasoning of Goldtree, the history and purpose of the 1947 amendment, or the language of the amendment.

The earlier of the two, Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331, 122 Cal.Rptr. 709, grew out of the bizarre tactic of a plaintiff who filed a request for dismissal under section 581, subdivision 1, and then filed a notice of appeal “from a judgment of dismissal entered upon a sustaining of a Demurrer without leave to amend.” The appellate court pointed out that there had been no judgment based upon the demurrer and that plaintiff was not entitled to appeal from a voluntary dismissal. Hence the appeal was dismissed. Nevertheless the opinion went on to express the view that by reason of the 1947 amendment, the dismissal under section 581, subdivision 1, was timely. No mention was made of language by the same panel two years earlier to the opposite effect. (See Stuart v. Crestview Mut. Water Co., supra, 34 Cal.App.3d at p. 812, fn. 10, 110 Cal.Rptr. 543.)

In United Shippers, Inc. v. Superior Court (1980) 104 Cal.App.3d 359, 162 Cal.Rptr. 871, the court held that, by reason of the 1947 amendment to section 581, subdivision 1, a plaintiff did have the absolute right to dismiss after a demurrer to the complaint had been submitted to the court for a decision. In reaching that conclusion the court emphasized the language of the sentence added at the end of subdivision 1: “A trial shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or his counsel, and if there shall be 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.”

Prior to 1947 the statute had authorized dismissal without prejudice “at any time before the trial.” This language had been construed as meaning at any time before the submission of the case. Thus a plaintiff who learned, during trial, that an adverse decision was probable could escape defeat by dismissing and starting over.² (See 4 Witkin, op. cit. supra, p. 2715.)

In 1946 the State Bar Committee on the Administration of Justice made a comprehensive review of sections 581-583 resulting in a State Bar sponsored bill which was enacted by the 1947 Legislature. Among other things that bill amended subdivision 1 of section 581 by changing the words “before the trial” to “before the actual commencement of trial” and adding the sentence stating that on specified events “a trial shall be deemed to be actually commenced.”

The contemporary literature makes clear the purpose of that amendment was to end the option of a plaintiff to abort a trial and start over without prejudice when the probability of an adverse decision appeared.³

The Parenti and United Shippers opinions assume that the last sentence of subdivision 1 creates a new and comprehensive definition of “actual commencement of trial.” This assumption cannot be reconciled with sections 588-591 which recognize trials of law as well as trials of fact. The affirmative statement that “A trial shall be deemed to be actually commenced at the beginning of the opening statement . . . (or) the administering of the oath . . . or the introduction of any evidence” does not necessarily mean that a trial which is completed without any of these shall be deemed not to have commenced.

The problem which the Legislature addressed in 1947 was peculiar to fact trials. Historically, the abuses in the demurrer cases had been the attempts of the plaintiff to dismiss without prejudice and start over after completion of the trial, a practice which had been outlawed since Goldtree.

The purpose of the 1947 amendment was to advance the point at which the voluntary dismissal option would be cut off. It is incongruous to say that this amendment opened the door to voluntary dismissals which had theretofore been prohibited. The only reasonable interpretation of the concluding sentence of subdivision 1 is its literal affirmative meaning, simply naming events which commence the most common type of fact trial.

A rational system of procedure cannot afford to give a plaintiff the option to dismiss without prejudice after a trial and decision against him. As Justice Edmonds pointed out in his Casner dissent, “the injustice to the defendant is not the greatest evil of such a practice; the wasting of the time and money of the people in a fruitless proceeding in the courts is something far more serious.” (Fn. 2, supra.)

We are not prepared to assume that the 1947 Legislature mandated anything so irrational and unjust.

Goldtree v. Spreckels, and the other decisions which have preceded and followed it, are based upon the still-valid premise that a hearing on a demurrer which determines the case is a trial within the meaning of the dismissal statutes. One of these cases, Berri v. Superior Court, supra, 43 Cal.2d 856, 279 P.2d 8, which arose long after the 1947 amendment, is of particular interest because it discusses the meaning of “trial” in sections 581 and 583.

In Berri, shortly before the expiration of the five-year period specified in section 583, the trial court had sustained a demurrer to the complaint without leave to amend, but no judgment had been entered. Subsequently, the action was dismissed under section 583, subdivision (b), for failure to bring it to trial within five years after the commencement of the action. Plaintiff then sought a mandamus to compel the trial court to enter a judgment of dismissal upon the demurrers, so that plaintiff might test the trial court's ruling on appeal. The Supreme Court granted that relief. The opinion discussed the cases on dismissal without prejudice under section 581, and noted the rule that when a demurrer to a complaint has been sustained without leave to amend, the plaintiff may no longer dismiss the case under section 581 because there has been a trial. The court also pointed out that the effect is the same when leave to amend has been given and the time to amend has expired. Upon this premise the Supreme Court concluded that the action was not subject to dismissal under section 583 because there had been a partial trial within the five-year period.

The Berri opinion illustrates the interrelationship of sections 581 and 583 and confirms the view that a hearing on a demurrer which disposes of the case is a trial within the meaning of both sections.

We regret the necessity to hand down a decision which conflicts with the declarations of other panels of the Court of Appeal. But we regard the reasoning and holding of the Supreme Court in Goldtree and Berri as compelling authority, which we follow.

The order of November 13, 1978, is reversed and the trial court is directed to reinstate the judgment of dismissal filed October 25, 1978. The appeal from the order of December 8, 1978, is dismissed.

FOOTNOTES

1.  All citations to statutes are to the Code of Civil Procedure.

2.  The grave abuse which was invited by that rule was well known. Justice Edmonds, dissenting in Casner v. Daily News Company, Ltd. (1940) 16 Cal.2d 410, 421, 106 P.2d 201, 206, wrote:“If the proposition were baldly stated that a plaintiff may bring a cause to trial, and go through the entire presentation of the case for both sides, and then, suspecting or learning of a probably adverse decision, may with impunity dismiss the suit and commence all over again, it would cause the greatest astonishment among the bench and the bar. The gross injustice to the defendant in such a situation is obvious: he is amenable to an adverse judgment, but a judgment in his favor maybe snatched away from him by alert counsel for his opponent after all the effort and expense of a trial. But the injustice to the defendant is not the greatest evil of such a practice; the wasting of the time and money of the people in a fruitless proceeding in the courts is something far more serious.”

3.  See Report of Committee on Administration of Justice 1945-1946 (1946, 21 State Bar J. 166, 167; letter from Jerold E. Weil, Secretary of the State Bar dated June 19, 1947, to Governor Earl Warren re S.B. 699; 4 Witkin California Procedure (2d ed. 1971) Proceedings Without Trial, section 50, page 2715.

FILES, Presiding Justice.

KINGSLEY and SAVITCH,* JJ., concur.