IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
January 24, 2012
NATHAN ESPLANADE, PLAINTIFF AND APPELLANT,
VINCENT LEROY SCHWEINFURTH ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. CI29721)
The opinion of the court was delivered by: Robie , J.
Esplanade v. Schweinfurth
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Nathan Esplanade purports to appeal from the dismissal of his personal injury action against defendant Vincent Schweinfurth and Schweinfurth's employer, defendant Thomas Wetzler. As we will explain, because the dismissal was entered at Esplanade's request, Esplanade has no right to appeal.
The limited clerk's transcript and reporter's transcript procured by Esplanade disclose the following:
The case was settled at a settlement conference held in court in August 2009. The terms of the settlement were read into the record by Esplanade's attorney. Under the terms of the settlement, Esplanade was to receive $1.9 million, payable in cash and/or annuity, in exchange for a dismissal of the case with prejudice. On the record, Esplanade acknowledged that he was entering into the settlement voluntarily and willingly.
In October 2009, Schweinfurth moved for an order to enforce the settlement. At the hearing on that motion, Esplanade's attorney informed the court that Esplanade did "not want the settlement to go forward" and instead wanted the case set for trial. Ultimately, the court agreed to consider some documents from Esplanade that Esplanade's attorney had told Esplanade he could not submit to the court because they were "not in pleading form and [were] untimely." From the court's summary of those documents, it appears Esplanade was objecting to enforcement of the settlement based on "assertions of bad faith and on [Esplanade's] belief that he does not have to sign a settlement agreement." The court found the settlement was enforceable even without Esplanade's signing of a written release, and the court ordered Esplanade's attorney to prepare a dismissal with prejudice, which Schweinfurth's attorney was to file with the court upon full payment of the amount due Esplanade under the settlement.
The request for dismissal of the case with prejudice, prepared by Esplanade's attorney, was filed on January 7, 2010, and the clerk entered the dismissal as requested that same day. On March 5, 2010, Esplanade purported to file a notice of appeal from the dismissal.
On appeal, Esplanade asserts a number of alleged errors by the trial court, including compelling him to attend the settlement conference and enforcing the settlement agreement. None of Esplanade's arguments are cognizable, however, because this appeal is not properly before us.
"While a compulsory dismissal by order of a court is a judicial act from which a plaintiff may appeal, a voluntary dismissal by a plaintiff is accomplished by a ministerial act of the clerk, filing from which no appeal lies. (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120 [108 Cal.Rptr. 782].) Respecting appealability, 'there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.' (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761 [157 P.2d 868].) Besides, a plaintiff 'obviously [can] not appeal [his] own voluntary dismissal . . . .' (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 787 [176 Cal.Rptr. 104, 632 P.2d 217].)" (Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343.)
Because this case was dismissed by the clerk, upon the request of Esplanade's attorney, no appeal lies from the dismissal, and this appeal must likewise be dismissed.
The appeal is dismissed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE , Acting P. J. BUTZ , J.
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