Kyle v. Carmon

• Decision Date: 28 April 1999
• Docket Number: No. C029072,C029072
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 3050, 1999 Daily Journal D.A.R. 3977 James KYLE, Plaintiff and Appellant, v. Shelly CARMON, Defendant and Respondent.

Page 303

84 Cal.Rptr.2d 303

71 Cal.App.4th 901, 99 Cal. Daily Op. Serv. 3050,

1999 Daily Journal D.A.R. 3977

James KYLE, Plaintiff and Appellant, v. Shelly CARMON, Defendant and Respondent.

No. C029072.

Court of Appeal, Third District, California.

April 28, 1999.

Paul Nicholas Boylan, Sacramento, for Plaintiff and Appellant.

Mark Goldowitz, Richmond, and David Howard, San Jose, for Defendant and Respondent.

SIMS, Acting P.J.

Plaintiff James Kyle filed a civil action for damages against defendant Shelly Carmon. Claiming plaintiff's suit was a "strategic lawsuit against public participation" (SLAPP), defendant moved to dismiss the action pursuant to Code of Civil Procedure section 425.16. ¹ A hearing was held on the SLAPP motion and, at the conclusion of the hearing, the trial court took the motion under submission. While the motion was under submission, plaintiff filed with the clerk a voluntary dismissal of the action with prejudice pursuant to section 581. Despite the filing of the dismissal, the trial court then granted the SLAPP motion, entering an order striking plaintiff's complaint and awarding defendant attorney's fees and costs.

Plaintiff appeals, contending the trial court was without authority to strike the complaint once the dismissal with prejudice had been filed.

We conclude the voluntary dismissal was valid; we shall therefore reverse the trial court's order striking plaintiff's complaint. However, we shall affirm the trial court's award of attorney's fees and costs in favor of defendant.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 1997, plaintiff (a school district superintendent according to the complaint) filed this lawsuit against defendant (and two others who were dismissed and are not party to this appeal). The first amended complaint alleged causes of action for invasion of privacy, defamation, and intentional infliction of emotional distress (together with other causes of action which were dismissed with prejudice before the current dispute arose). The factual allegations underlying the complaint are not at issue in this appeal.

On September 24, 1997, defendant filed a special motion to strike the complaint under section 425.16, sub

On December 8, 1997, the hearing was held. The court minutes reflect that the court heard argument at the hearing and took the matter under submission. ²

On December 10, 1997, plaintiff submitted to the court clerk a request for voluntary dismissal of his case with prejudice. The clerk filed the dismissal on December 11, 1997.

On December 17, 1997, the court filed its order (which was signed December 14th), striking the first amended complaint under section 425.16. The order (with no mention of the voluntary dismissal) stated the court determined the complaint arose from defendant's exercise of her right to free speech, and it was not probable that plaintiff would prevail if the action were allowed to proceed. The order also stated defendant was to recover costs and attorney's fees. ³

DISCUSSION

I

An order granting a motion to strike under section 425.16 is an appealable order. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 971, pp. 434-435, citing Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 370, 63 Cal.Rptr. 123 [though order granting motion to strike is ordinarily nonappealable, it is appealable as a final judgment if it removes the only cause of action alleged and leaves no issues to be determined].) A party may appeal from a purportedly void judgment in order to clear the record. (Ibid.; Casa De Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1191, fn. 4, 213 Cal.Rptr. 790.) This case presents a question of law, which we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960.)

II

Although the merits of the section 425.16 motion are not at issue in this appeal, the nature of the motion will be a factor in our discussion of plaintiff's right to voluntary dismissal under section 581.

Section 425.16 "is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition. It is California's response to the problems created by meritless lawsuits brought to harass those who have exercised these rights." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, 49 Cal.Rptr.2d 620 (Church of Scientology); see also, section 425.16, subdivision (a).)

A SLAPP suit is subject to a special motion to strike the complaint under section 425.16, unless the court determines the plaintiff has established a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) "The moving party bears the initial burden of establishing a prima facie showing the plaintiff's cause of action arises from the defendant's free speech or petition activity. [Citation.] ... If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish ' "a probability that the plaintiff will prevail on the claim," ' i.e., 'make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.' [Citation.] In making its determination, the trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based. [Citation.] Discovery is stayed upon the filing of the motion. [Citation.] However, upon noticed The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. (Church of Scientology, supra, 42 Cal.App.4th at pp. 653-654, 49 Cal.Rptr.2d 620; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-824, 33 Cal.Rptr.2d 446.) "In order to preserve the plaintiff's right to a jury trial the court's determination of the motion cannot involve a weighing of the evidence." (Church of Scientology, supra, 42 Cal.App.4th at p. 654, 49 Cal.Rptr.2d 620.) "It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions...." (Ibid., citing Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15-16, 43 Cal.Rptr.2d 350.)

motion and for good cause shown, the court may allow specified discovery." (Church of Scientology, supra, 42 Cal.App.4th at pp. 646-647, 49 Cal.Rptr.2d 620, italics omitted.)

III

Plaintiff contends the order striking the complaint under section 425.16 is void for lack of jurisdiction because plaintiff's voluntary dismissal of the case was valid, since the court had not yet ruled on the section 425.16 motion. We agree. ⁴

We shall conclude plaintiff's voluntary dismissal with prejudice was valid, where it was entered before a ruling on the section 425.16 motion. ⁵ Therefore, the order striking the complaint is void.

Section 581 allows a plaintiff voluntarily to dismiss a case before "commencement of trial." (§ 581, subds. (b), (c). ⁶ ) "The purpose behind this right is to allow a plaintiff a certain amount of freedom of action within the limits prescribed by the code." (Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435, 446, 224 Cal.Rptr. 809 (Cal-Vada Aircraft ).) "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" (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784, 176 Cal.Rptr. 104, 632 P.2d 217 (Wells )), except for matters such as attorney's fees. (Fn.4, ante.) An order by a court lacking subject matter jurisdiction is void. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691, 62 Cal.Rptr.2d 884.)

Section 581's purpose in cutting off the plaintiff's absolute right to dismissal upon commencement of trial is to avoid abuse by plaintiffs who, when led to suppose a decision would be adverse, would prevent such decision by dismissing without prejudice and refiling, thus subjecting the defendant and the courts to wasteful proceedings and continuous litigation. (Wells, supra, 29 Cal.3d at pp. 785-786, 176 Cal.Rptr. 104, 632 P.2d 217.) That purpose is not implicated here, where plaintiff dismissed the case with prejudice, such that he is precluded from refiling the action. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776, 27 Cal.Rptr.2d 32 [voluntary dismissal with prejudice is a final determination on the merits].) Plaintiff stresses his dismissal was with prejudice. Nevertheless, the current statute treats equally dismissals with or without prejudice, with respect to the right to dismiss before commencement of trial. ⁷ (§ 581, subd. (c), fn. 6, ante.)

"Commencement of trial" in section 581 means the opening statement or argument, the swearing in of the first witness, or the introduction of any evidence. (§ 581, subd. (a)(6). ⁸ ) However, case law holds that section 581 is not limited to "trial" in the conventional sense but also includes determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions. (E.g. Wells, supra, 29 Cal.3d at p. 785, 176 Cal.Rptr. 104, 632 P.2d 217 [once general demurrer is sustained with leave to amend, and plaintiff does not amend within time allotted, plaintiff can no longer voluntarily dismiss, even if court has not yet entered judgment on dismissal on the sustained demurrer]; Goldtree v. Spreckels (1902) 135 Cal. 666, 67 P. 1091 [sustaining of demurrer without leave to amend as to two of three causes of action precluded plaintiff from voluntary dismissal of those two causes of action].) "The thread running through all these cases seems to be one of fairness: Once the parties commence putting forth the facts of their case before some sort of fact finder, such as an arbitrator, or at the pretrial...