GOGRI v. JACK IN The BOX INC.

• Decision Date: 25 August 2008
• Docket Number: No. D050838.,D050838.
• Citation: 82 Cal.Rptr.3d 629,166 Cal.App.4th 255
• Court: California Court of Appeals Court of Appeals
• Parties: Maheshkuimar GOGRI, Plaintiff and Appellant, v. JACK IN THE BOX INC., Defendant and Respondent.

166 Cal.App.4th 255

82 Cal.Rptr.3d 629

Maheshkuimar GOGRI, Plaintiff and Appellant,

v.JACK IN THE BOX INC., Defendant and Respondent.

No. D050838.

Court of Appeal, Fourth District, California.

Aug. 25, 2008.

COPYRIGHT MATERIAL OMITTED.

Mohajerian Law Corporation, Al Mohajerian, Aaron G. Capps, Los Angeles, and Michael T. Smith, for Plaintiff and Appellant.

Kirby Noonan Lance & Hoge, David J. Noonan, Steven W. Sanchez and Jill E. Randall, San Diego, for Defendant and Respondent.

McDONALD, Acting P.J. Plaintiff Maheshkuimar Gogri appeals a judgment entered after the trial court granted the motion for summary judgment filed by defendant Jack in the Box Inc. (JIB). On appeal, Gogri contends the trial court erred by: (1) vacating his voluntary dismissal filed prior to the court's order granting JIB's motion for summary judgment; (2) granting JIB's motion for summary judgment; and (3) awarding attorney fees to JIB. We conclude that because Gogri timely filed his voluntary dismissal, the trial court did not have jurisdiction to decide JIB's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1988 Gogri and Chandra Haria became co-owners of a JIB franchise restaurant in San Jose. Gogri is an officer and director of the Haria and Gogri Corporation, which now owns four JIB franchise restaurants in California, including the original San Jose restaurant.

In 1995 Gogri, Haria and Adel Farag, pursuant to their partnership agreement, purchased five JIB franchise restaurants in Arizona, including one known as JIB 1165. In 2000 Gogri and Farag, pursuant to a separate partnership agreement, purchased a sixth JIB franchise restaurant in Arizona.

In February 2005, with the term of the franchise agreement for JIB 1165 about to expire, JIB offered to renew the franchise agreement with Gogri, Haria, and Farag on the condition that they each execute a general release in favor of JIB. However, Gogri chose not to execute the general release. Thereafter, JIB entered into a new franchise agreement for JIB 1165 with only Haria and Farag.

Gogri then filed the instant action against JIB. His first amended complaint alleged causes of action for: (1) declaratory relief; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) intentional interference with contractual relationship; (5) negligent interference with contractual relationship; (6) intentional interference with prospective economic advantage; (7) negligent interference with prospective economic advantage; (8) unfair business practices in violation of Business and Professions Code section 17200 et seq.; (9) injunctive relief; and (10) violation of the California Franchise Relations Act (Bus. & Prof.Code, § 20000 et seq.). ¹ The trial court ultimately sustained, without leave to amend, JIB's demurrers to the fourth, fifth, sixth and seventh causes of action of Gogri's first amended complaint, leaving in effect the first, second, third, eighth, ninth, and 10th causes of action (to which JIB apparently did not demur) in the first amended complaint. ²

On December 15, 2006, JIB filed a motion for summary judgment, arguing there were no triable issues of material fact regarding the six remaining causes of action and that it was entitled to judgment as a matter of law. On December 18, Gogri filed a motion for summary judgment, arguing there were no triable issues of material fact regarding the six remaining causes of action and that he was entitled to judgment as a matter of law.

On February 22, 2007, Gogri filed a request for dismissal of his complaint without prejudice. The court clerk accepted it and entered the dismissal on that date. On February 23, JIB filed an ex parte application requesting Gogri's voluntary dismissal be vacated, apparently arguing it was untimely filed, and that the court grant JIB's motion for summary judgment. On February 26, an order to show cause (OSC) was issued as to why Gogri's voluntary dismissal should not be set aside. On March 2, the trial court vacated Gogri's voluntary dismissal of the complaint and granted JIB's motion for summary judgment. On April 18, the court entered judgment for JIB on Gogri's complaint. The court subsequently granted JIB's request for an award of $270,810.77 in reasonable attorney fees and costs and amended the judgment to reflect that award. Gogri timely filed a notice of appeal.

DISCUSSION

I

Voluntary Dismissals Generally

Code of Civil Procedure section 581 ³ allows a plaintiff to voluntarily dismiss, with or without prejudice, all or any part of an action before the “actual commencement of trial.” ( § 581, subds. (b)(1), (c).) ⁴ The California Supreme Court stated: “Apart from certain ... statutory exceptions, a plaintiff's right to a voluntary dismissal [before commencement of trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action.” ⁵ ( Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784, 176 Cal.Rptr. 104, 632 P.2d 217 ( Wells ).) Alternatively stated, voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction in that case, except for the limited purpose of awarding costs and statutory attorney fees. ( Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1108, 34 Cal.Rptr.3d 149 ( Shapell ); Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405, 20 Cal.Rptr.2d 718 ( Harris ).) “An order by a court lacking subject matter jurisdiction is void. [Citation.]” ( Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909, 84 Cal.Rptr.2d 303 ( Kyle ).)

Section 581, subdivision (a)(6), provides: “A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is 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.” Despite that statutory definition of the commencement of trial, the California Supreme Court has construed the phrase “commencement of trial” in section 581 to include “ determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions. [Citations.]” ( Kyle, supra, 71 Cal.App.4th at p. 909, 84 Cal.Rptr.2d 303, italics added.) Therefore, “commencement of trial” under section 581 is not restricted to only jury or court trials on the merits, but also includes pretrial procedures that effectively dispose of the case. ( Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 769, 57 Cal.Rptr.2d 4; Wells, supra, 29 Cal.3d at p. 785, 176 Cal.Rptr. 104, 632 P.2d 217; Goldtree v. Spreckels (1902) 135 Cal. 666, 672, 67 P. 1091 ( Goldtree ).) However, “pretrial procedures not determinative of the case do not preclude voluntary dismissal [under section 581]. [Citations.]” (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 263, p. 682.)

One court recently reviewed numerous section 581 cases and concluded a “mere formality” test applied in determining whether a voluntary dismissal is untimely (i.e., requested on or after a “commencement of trial”). ( Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200-205, 55 Cal.Rptr.3d 424 ( Franklin ).) A voluntary dismissal is untimely under section 581 if either: (1) there has been “a public and formal indication by the trial court of the legal merits of the case;” or (2) there has been “some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable.” ( Franklin, at p. 200, 55 Cal.Rptr.3d 424.)

Because the trial court's application of section 581 to undisputed facts is a question of law, we apply the independent standard in reviewing on appeal the trial court's determination. ⁶ ( Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1171, 132 Cal.Rptr.2d 842 ( Zapanta ); Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 65, 118 Cal.Rptr.2d 405; cf. International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611, 38 Cal.Rptr.2d 150, 888 P.2d 1279 [application of statute of limitations to undisputed facts is a question of law].)

II

Timeliness of Gogri's Section 581 Voluntary Dismissal

Gogri contends the trial court erred by vacating his section 581 voluntary dismissal filed prior to the court's order granting JIB's motion for summary judgment.

A

JIB filed two demurrers (dated January 20, 2006, and May 26, 2006) to some, but not all, causes of action alleged in Gogri's original and first amended complaints. Following those demurrers, six operative causes of action remained for resolution in Gogri's first amended complaint.

On December 15, 2006, JIB filed a motion for summary judgment, arguing there were no triable issues of material fact regarding the six remaining causes of action, and it was entitled to judgment as a matter of law. ⁷ On February 2, 2007, Gogri filed his papers in opposition to JIB's motion for summary judgment. On February 9, JIB filed its reply to Gogri's opposition to its motion. On February 13, JIB filed an amended notice of motion, setting the hearing on its motion for summary judgment for February 27 or “as soon thereafter as the matter may be heard.” That amended notice noted the trial court would issue a tentative ruling on JIB's motion by 4:00 p.m. “on the date preceding oral argument.”

On February 22, Gogri filed a request for dismissal of his complaint without prejudice. The court clerk accepted it and entered the dismissal on that date. On February 23, JIB filed an ex parte application requesting Gogri's voluntary dismissal be vacated, apparently arguing it was untimely filed and the court should grant JIB's motion for summary judgment.

On February 26, an order to show cause (OSC) was issued to determine whether Gogri's voluntary dismissal should be set aside. The...