Ashland Chemical Co. v. Provence

• Court: California Court of Appeals
• Writing for the Court: GERALD BROWN
• Citation: 181 Cal.Rptr. 340,129 Cal.App.3d 790
• Parties: ASHLAND CHEMICAL COMPANY, Plaintiff and Appellant, v. Ross C. PROVENCE, Defendant and Respondent. Civ. 24162.
• Decision Date: 16 March 1982

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181 Cal.Rptr. 340 129 Cal.App.3d 790 ASHLAND CHEMICAL COMPANY, Plaintiff and Appellant,
v.
Ross C. PROVENCE, Defendant and Respondent. Civ. 24162. Court of Appeal, Fourth District, Division 1, California. March 16, 1982.

[129 Cal.App.3d 792] Dierdorff, Stout & Gentner and Robert T. Dierdorff, San Diego, for plaintiff and appellant.

Provence, Provence & Uber and Ross C. Provence, El Cajon, for defendant and respondent.

GERALD BROWN, Presiding Justice.

Ashland Chemical Company sued Ross Provence, Lee Epstein, and Ceramics International, Inc., on a promissory note and guaranty contract. The superior court sustained Provence's demurrer without leave to amend and Ashland prematurely appealed. Then, realizing the court had not yet entered an appealable judgment, Ashland asked the clerk to dismiss the complaint with prejudice "only for the purpose of expediting appeal and in no way indicat[ing] agreement or acquiesence [sic] with the Court's ruling." Ashland appeals the resulting judgment of dismissal.

Provence contends Ashland may not appeal after voluntarily dismissing its complaint (Parenti v. Lifeline Blood Bank, 49 [129 Cal.App.3d 793] Cal.App.3d 331, 122 Cal.Rptr. 709). However, many courts have 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. (See cases collected in Annot., 23

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A.L.R.2d 664, 673-675.) Here Ashland dismissed its complaint after the superior court sustained Provence's demurrer without leave to amend. Moreover, it did so only to obtain a final judgment so it could contest the court's ruling. Under these circumstances, Ashland's request for dismissal was tantamount to a request to enter judgment on Provence's demurrer. We allow the appeal.

Ashland's complaint, filed April 22, 1980, alleges for a first cause of action: Ashland is a Kentucky corporation; Ceramics is a California corporation; Provence and Epstein are California residents; Provence, Epstein and Ceramics executed a promissory note favoring Ashland on March 1, 1975, in Kentucky; Provence, Epstein and Ceramics promised to pay the note in Kentucky by December 31, 1975, but did not; the note said it was "governed by and construed in accordance with the laws of the Commonwealth of Kentucky"; and Kentucky's statute of limitations on promissory notes is 15 years. Ashland alleges in its second cause of action on January 24, 1974, in Kentucky, Provence and Epstein guaranteed in writing all Ceramics' future debts.

Provence demurred to the complaint. The superior court ruled both causes of action were barred by California's four-year statute of limitations on written obligations (Code Civ.Proc., § 337).

Ashland unmeritoriously contends the court erred in ruling California's statute of limitations, rather than Kentucky's, applied to the guaranty contract. According to "traditional" choice of law theory, statutes of limitation are procedural and are governed by forum law (Rest., Conflict of Laws, §§ 603, 604). This...