Mary Morgan, Inc. v. Melzark

• Decision Date: 24 September 1996
• Docket Number: No. A073240,A073240
• Citation: 57 Cal.Rptr.2d 4,49 Cal.App.4th 765
• Parties: , 96 Cal. Daily Op. Serv. 7164, 96 Daily Journal D.A.R. 11,719 MARY MORGAN, INC., Plaintiff and Appellant, v. Donald R. MELZARK et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 4

57 Cal.Rptr.2d 4

49 Cal.App.4th 765, 96 Cal. Daily Op. Serv. 7164,

96 Daily Journal D.A.R. 11,719

MARY MORGAN, INC., Plaintiff and Appellant, v. Donald R. MELZARK et al., Defendants and Respondents.

No. A073240.

Court of Appeal, First District, Division 1, California.

Sept. 24, 1996.

[49 Cal.App.4th 767] Vincent M. Spohn, Napa, for Appellant.

Richard V. Day, Napa, for Respondents Donald R. Melzark and Jolene Melzark.

Aaron M. Kamins, San Rafael, for Respondent Richard W. Clark.

STRANKMAN, Presiding Justice.

Summary judgment was granted to defendants when plaintiff failed to present controverting evidence after being granted a continuance for that purpose and instead used the continuance time period to file a request to dismiss the action without prejudice to reasserting the same claims challenged on the summary judgment motions. (Code Civ.Proc., §§ 437c, subd. (h), 581, subds. (b)(1), (c).) ¹ Plaintiff appeals, claiming it was entitled to dismiss the action despite the pendency of the motions and that the dismissal divested the trial court of its power to rule on the summary judgment motions. We affirm the judgment, holding that a plaintiff may not dismiss an action without prejudice after an adverse tentative summary judgment ruling has been announced and the hearing has commenced and is continued for the express and exclusive purpose of permitting the plaintiff an opportunity to produce opposition evidence it claims was previously unavailable.

FACTS

In January 1995, appellant Mary Morgan, Inc. sued multiple parties to cancel a deed of trust attached to real property it acquired in settlement of litigation. Summary judgment motions were filed separately by respondents Donald R. and Jolene Melzark and respondent Richard W. Clark. (§ 437c.) Appellant filed written opposition to respondent Clark's motion and formally requested a continuance as to respondents Melzarks' motion. (§ 437c, subds. (a), (h).)

On Friday, November 17, 1995, the trial court issued its tentative ruling granting the summary judgment motions and commenced a hearing on the matter. Appellant claimed certain deposition transcripts were only recently available and requested a continuance to permit its filing of opposition to respondents Melzarks' motion and further opposition to respondent Clark's motion. The trial court continued the matter to November 28, 1995, "in order to allow [appellant's] counsel to file and serve any additional declarations or depositions together with supplemental points and authorities as to the factual issues contended by [appellant] to exist by way of defense to the motion." (§ 437c, subd. (h).)

Appellant never filed any papers on the summary judgment motions. Instead, on Monday, November 20, 1995, appellant filed with the court clerk a request for dismissal without prejudice as to respondents. (§ 581.) Appellant did not attend the reconvened hearing on the summary judgment motions held on November 28, 1995. At that hearing, respondents asked the trial court to adopt its tentative ruling to grant the motions and to disregard appellant's request for dismissal, and the court agreed to accept a letter brief on the issue. The letter brief was submitted on December 1, 1995, and served upon appellant with notification that the court was considering ruling on the summary judgment motions notwithstanding appellant's request for dismissal. Appellant did not submit any opposition to respondents' letter brief.

The court found that appellant was not entitled to dismiss without prejudice the action against respondents because the hearing had commenced on respondents' summary judgment motions and had simply been continued to permit appellant to file additional evidence on the motions. Respondents' summary judgment motions were granted and appellant's request for dismissal was stricken on December 6, 1995. Judgment was entered in favor of respondents and this appeal followed an unsuccessful plea for reconsideration.

DISCUSSION

One question alone is raised in this appeal: May a plaintiff dismiss an action without prejudice after an adverse tentative summary judgment ruling has been announced and the hearing has commenced and is continued for the express and exclusive purpose of permitting the plaintiff an opportunity to produce opposition evidence it claims was previously unavailable. One answer alone is possible: No.

Appellant claims a broad right to voluntarily dismiss its action against respondents without prejudice to filing another action against them, and relies upon statutory language permitting a plaintiff's dismissal of the complaint at any time "prior to the actual commencement of trial." (§ 581, subd. (c).) But "[t]he right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute." (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402, 20 Cal.Rptr.2d 718.) There are statutory exceptions to a plaintiff's right of voluntary dismissal, and "other limitations have evolved through the courts' construction of the term 'commencement of trial.' " (Ibid.) The meaning of the term "trial" is not restricted to jury or court trials on the merits, but includes other procedures that "effectively dispose of the case." (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785, 176 Cal.Rptr. 104, 632 P.2d 217.)

A plaintiff is precluded from voluntarily dismissing an action without prejudice under various circumstances short of a full trial. Those circumstances include a general demurrer sustained without leave to amend, a general demurrer sustained with leave to amend where no amendment is made within the allotted time, and where all issues have been deemed admitted in defendant's favor. (Goldtree v. Spreckels (1902) 135 Cal. 666, 672-673, 67 P. 1091; Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at p. 789, 176 Cal.Rptr. 104, 632 P.2d 217; Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765, 770, 204 Cal.Rptr. 62.) Pertinent here, a summary judgment order bars voluntary dismissal. (Sweat v. Hollister (1995) 37 Cal.App.4th 603, 614-615, 43 Cal.Rptr.2d 399.)

However, we are not presented with a request for dismissal following a summary judgment order, but a request made during continuation of a summary judgment hearing. Appellant argues that its right of dismissal existed until a dispositive ruling was made while respondents Melzarks argue that the right of dismissal ended once the hearing on the dispositive motion commenced. ² At least in the case of demurrers, commentators have suggested that a plaintiff has the right to dismiss even after argument and submission of the matter, until the actual ruling is made. (3 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, p 11:20.4, p. 11-9.) In fact, as a "practice pointer," counsel are advised by these commentators that "a plaintiff who senses that he or she is losing the argument could ask the court for leave to file additional points and authorities. If leave is granted, it would extend the time during which plaintiff could voluntarily dismiss without prejudice!" (Id. at p 11:20.5, p. 11-9.) The commentators only caution counsel that "[y]our judge may not take kindly to having his or her intended rulings thwarted. Therefore, it is not recommended that you utilize this tactic if you plan to appear regularly in the same court!" (Ibid.)

We do not share the view that a tactic founded on a misrepresentation to the court is ever proper, and we are loath to adopt a rule that would encourage dishonesty and gamesmanship in the judicial system. But we need not reach the general issue of whether the commencement of a hearing on any dispositive motion forecloses a plaintiff's right to dismiss his or her complaint without prejudice. The parties have framed the debate too broadly.

On these facts, the proper question is whether a voluntary dismissal is permitted after a summary judgment hearing has commenced and is continued to permit the gathering of previously unavailable opposition evidence. The answer must be no, given the nature of summary judgment procedures.

A defendant who meets the initial burden of establishing that the action has no merit is entitled to summary judgment unless the plaintiff demonstrates the existence of a triable issue of material fact. (§ 437c, subds. (c), (o)(2).) A plaintiff generally cannot defeat a well-founded summary judgment motion without setting forth specific facts controverting the motion. (§ 437c, subd. (o)(2).) An exception is made for an opposing party who has not had an opportunity to marshal the evidence, and a summary judgment motion will be denied or continued if the...