California Court of Appeals, First District, Third Division
Trial Court San Francisco County Superior Court No. CGC-11-509290 Hon. Harold E. Kahn Trial Judge
Counsel for Plaintiffs and Appellants: Michael Timothy Heath, and Howard Olsen of Law Office of Michael Heath
Counsel for Defendant and Respondent: Hannah C. Leung of Leung & Associates Christine A. Chorney of Casalina & Disston
Defendant and respondent Geen Hone Lee has moved to dismiss the appeal of plaintiffs and appellants Kaushik Dattani, et al. (Dattanis) on the ground that their notice of appeal was not timely filed. We conclude that an appealable judgment was created when Dattanis filed a request for dismissal without prejudice of all of their causes of action that remained after a grant of summary adjudication against them. Thus, the notice of appeal filed more than 180 days after the date of this judgment, was untimely. We therefore grant the motion to dismiss.
Dattanis filed a four-count complaint against respondent. By order dated June 27, 2012, the court granted respondent’s motion for summary adjudication of Dattanis’s first cause of action. On September 10, 2012, Dattanis filed a request for dismissal of all the remaining causes of action. According to counsel’s uncontested declaration in support of the motion to dismiss this appeal, she appeared on September 10, 2012, for trial of the second, third, and fourth causes of action. Dattanis’s attorney appeared and told her that he was dismissing those causes of action “in order to pursue an appeal.”
The request for dismissal was filed on the requisite Judicial Council form with a section to be completed by the clerk showing whether or not dismissal was entered as requested. This section of the form was never completed by the clerk. The court’s register of actions for September 10, 2012, states: “Removed from master court calendar set for Sep-10-2012 – off calendar. Plaintiff’s counsel represented to the court that the 1st cause of action was adjudicated on 6/27/12 and a dismissal of all the other causes of action was filed on 9/10/12.”
On April 16, 2013, the court filed a “Judgment by the Court Under C.C.P. § 437c” prepared by Dattanis’s counsel. The judgment states: “On June 27, 2012, this Court granted [respondent’s] motion for summary adjudication on the first cause of action.... On September 10, 2012, [Dattanis] dismissed their remaining causes of action.... Accordingly, [Dattanis] have no further claims to prosecute, and the Court orders that judgment shall be entered in favor of [respondent]. [Dattanis] shall recover nothing on their complaint.”
On May 6, 2013, Dattanis filed a notice of appeal from the April 16 judgment. They checked the box on the form stating that the appeal was from a “[j]udgment after an order granting a summary judgment motion.”
Respondent contends that Dattanis’s request for dismissal was the equivalent of a judgment on the day it was filed, and appealable. If respondent is correct, then Dattanis’s notice of appeal was untimely. Under California Rules of Court, rule 8.104(a)(1)(C), the latest possible time to file a notice of appeal is 180 days after entry of judgment. If the request for dismissal was tantamount to a judgment, then judgment was entered on September 10, 2012, the date the request was filed by the clerk. (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1268, fn. 2 [“a judgment’s date of filing, as shown on a file stamp, is the judgment’s date of entry”].) The notice of appeal was filed more than 180 days later, in May 2013.
“Ordinarily, a plaintiff’s voluntary dismissal is deemed to be nonappealable on the theory that dismissal of the action is a ministerial action of the clerk, not a judicial act.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 (Stewart).) However, a series of cases beginning with Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790 (Ashland) recognized an exception to this rule and “allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal.” (Id. at p. 793; see id. at p. 792 [the plaintiff asked the clerk to dismiss the compliant with prejudice “ ‘only for the purpose of expediting appeal’ ” after the court sustained the defendant’s demurrer without leave to amend]; Denney v. Lawrence (1994) 22 Cal.App.4th 927, 930, fn. 1 (Denney) [following Ashland; parties stipulated to a “judgment of dismissal” after a ruling adverse to the plaintiff in a defamation action]; Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 116, fn. 2 (Casey), disapproved on another ground in Jimenez v. Superior Court (2002) 29 Cal.4th 473, 481, fn. 1 [following Ashland and Denney; court granted the defendant’s motion for summary adjudication and an in limine motion on the remaining cause of action; the defendant’s motion for “nonsuit/directed verdict” was granted and a “stipulated judgment” was entered for the defendant].)
Ashland, Denney, and Casey stand for the propositions that an appeal will lie “when a dismissal was requested after an adverse trial court ruling so that an appeal could be taken promptly, ” and the request for such dismissal “operates as a request for an entry of judgment based on the adverse ruling.” (Denney, supra, 22 Cal.App.4th at p. 930, fn. 1.) It is unclear whether a judgment was entered in Ashland (Ashland, supra, 129 Cal.App.3d at p. 792), but judgments were entered in Denney and Casey from which the appellants appealed. (Denney, supra, at p. 930; Casey, supra, 74 Cal.App.4th at p. ...