Wells v. Marina City Properties, Inc.

CourtUnited States State Supreme Court (California)
Writing for the CourtRICHARDSON; BIRD
Citation176 Cal.Rptr. 104,29 Cal.3d 781,632 P.2d 217
Parties, 632 P.2d 217 W. G. WELLS, Plaintiff and Respondent, v. MARINA CITY PROPERTIES, INC., et al., Defendants and Appellants. L.A. 31334.
Decision Date06 August 1981

Page 104

176 Cal.Rptr. 104
29 Cal.3d 781, 632 P.2d 217
W. G. WELLS, Plaintiff and Respondent,
MARINA CITY PROPERTIES, INC., et al., Defendants and Appellants.
L.A. 31334.
Supreme Court of California, In Bank.
Aug. 6, 1981.
Rehearing Denied Sept., 16, 1981.

[29 Cal.3d 783]

Page 105

[632 P.2d 218] Latham & Watkins, A. Victor Antola and Stephen L. Jones, Los Angeles, for defendants and appellants.

Gerald M. Siegel, Santa Monica, for plaintiff and respondent.


We examine and resolve an apparent conflict between two subdivisions of Code of Civil Procedure section 581. (All further statutory references are to that code unless otherwise cited.) Subdivision 1 gives a plaintiff a right to dismiss his action without prejudice "at any time before the actual commencement of trial." Subdivision 3, on the other hand, affords a defendant a right to obtain dismissal of such action with prejudice after the trial court has sustained, with leave to amend, defendant's general demurrer, and plaintiff has failed to so amend. We will conclude that in such a conflict, a defendant's right to a dismissal with prejudice prevails.

On August 4, 1978, defendants' general demurrer to plaintiff's second amended complaint was sustained with leave to amend within 30 days. The time for such amendment subsequently was extended to September 26. Plaintiff sought no further extensions and did not amend his complaint.

On October 5, defendants filed and served upon plaintiff by mail a notice of a motion to be heard October 20 for a dismissal with prejudice of plaintiff's action, pursuant to Code of Civil Procedure section 581, subdivision 3.

[29 Cal.3d 784] On October 6, plaintiff filed a request for dismissal of his action without prejudice, pursuant to section 581, subdivision 1. The clerk of the court entered a dismissal without prejudice in accordance with the statute; and plaintiff gave to defendants written notice thereof.

On October 20, after hearing, the court granted defendants' previously noticed motion for dismissal with prejudice of plaintiff's action, observing that plaintiff's previous request for dismissal without prejudice was not in the court's file.

On November 9, however, the court reversed itself and granted plaintiff's motion to set aside its order of dismissal with prejudice on the ground that plaintiff's voluntary dismissal of October 6 had terminated the court's jurisdiction over the matter. It is from this ruling that defendants appeal.

We examine more closely the applicable statute. In relevant part, section 581 provides:

"An action may be dismissed in the following cases:

"1. By plaintiff, by written request to the clerk, ... at any time before the actual commencement of trial, ... A trial shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or his counsel, and if there shall be 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.


"3. By the court, ... when, after a demurrer to the complaint has been sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court, and either party moves for such dismissal."

Apart from certain omitted and irrelevant statutory exceptions, a plaintiff's right to a voluntary dismissal pursuant to subdivision 1 appears to be absolute. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 44, p. 2709.) Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action. The implication of a subdivision 1 dismissal is that it is generally "without prejudice" to a plaintiff's filing of a new action on the same allegations if it is done within the period of the appropriate statute of limitations. (Id., at § 55, p. 2720.)

Page 106

Plaintiff [29 Cal.3d 785] denominated his request here as "without prejudice," and the dismissal as entered so indicated.

On the other hand, the power of a court to dismiss an action upon motion of either party under the circumstances set forth in [632 P.2d 219] subdivision 3 seems equally clear. (4 Witkin, supra, at § 120, p. 2786.) As with subdivision 1 dismissals, the statutory language is not specific but it is generally accepted that the movant is entitled to an appealable judgment of dismissal "with prejudice" (ibid.), as defendants requested in this case.

What are the time limits within which a subdivision 1 voluntary dismissal may be effected? In construing a previous version of section 581, subdivision 1, which afforded a plaintiff a right to dismiss his action voluntarily "at any time before trial," we established many years ago that such right was ended when a trial court order sustained a defendant's general demurrer without leave to amend. (Goldtree v. Spreckels (1902) 135 Cal. 666, 67 P. 1091.) We reasoned that the use of the term "trial" in the statute "cannot be restricted in its meaning to trials of the merits after answer, for there may be such a trial on a general demurrer to the complaint as will effectually dispose of the case where the plaintiff has properly alleged all the facts which constitute his cause of action. If the demurrer is sustained, he stands on his pleading and submits to judgment on the demurrer, and, if not satisfied, has his remedy by appeal. In such a case, we think, there would be a trial within the meaning of the code, ..." (Id., at pp. 672-673, 67 P. 1091.)

With reference to cases, such as the one before us, in which leave to amend is afforded but not exercised, we further noted: " 'When a general demurrer to a petition is sustained, and the plaintiff declines to amend, he practically confesses that he has alleged in his pleading every fact he is prepared to prove in support of his action. Therefore, in such a case, nothing remains to be done except to render judgment for the defendant. Since the defendant by his demurrer has admitted all the facts of the plaintiff's case, we see no reason why the judgment should not be regarded as a conclusive determination of the litigation on its merits.' " (Goldtree v. Spreckels, supra, 135 Cal. at p. 672, 67 P. 1091.) We held that the matter having been submitted to the court, a plaintiff no longer had the right to dismiss without prejudice. " 'If he could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation.' [29 Cal.3d 786] (Id., at p. 671, 67 P. 1091.) An important additional interest has also been identified. "But the injustice to the defendant is not the greatest evil of such a practice; the wasting of the time and money of the people in a fruitless proceeding in the courts is something far more serious." (Casner v. Daily News Company, Ltd. (1940) 16 Cal.2d 410, 421, 106 P.2d 201 (dis. opn. of Edmonds, J.).)

Subsequent to our decision in Goldtree, subdivision 1 was amended to its current form, now affording plaintiff a right to dismiss "at any time before the actual commencement of trial," rather than "at any time before trial," as provided previously. The amendment also listed several events which would be "deemed" to constitute the "actual commencement of trial." Plaintiff argues that this amendment, together with its explicit definition of the "commencement of trial," changed the rule of Goldtree which had prevented voluntary dismissal by a plaintiff after the sustaining of a demurrer. It is contended that the modification of the statute created a new and exclusive test, preserving the right of voluntary dismissal until the occurrence of one of the specific acts deemed by subdivision 1 to constitute "the actual commencement of trial." In support of his contention (and of the trial court's ultimate ruling), plaintiff relies on United Shippers, Inc. v. Superior Court (1980) 104 Cal.App.3d 359, 162 Cal.Rptr. 871, and Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331, 122 Cal.Rptr. 709. While the holding in neither case directly establishes plaintiff's position,

Page 107

there is language in each case which supports him.

In United Shippers, defendant's demurrer had been argued and submitted, but was undecided by the court, when plaintiff successfully requested of the clerk of the court [632 P.2d 220] a voluntary dismissal of his action without prejudice. Subsequently, the trial court sustained the demurrer (without leave to amend) and dismissed the action. In reversing the trial court the Court of Appeal asserted that a plaintiff has an absolute right to dismiss his action pursuant to section 581, subdivision 1, even "after a demurrer to his complaint has been submitted to the court for decision...." (United Shipper, Inc. v. Superior Court, supra, 104 Cal.App.3d at p. 361, 162 Cal.Rptr. 871.) Accordingly, it held that the trial court lacked jurisdiction to proceed once plaintiff had filed his dismissal. (Id., at p. 363, 162 Cal.Rptr. 871.)

United Shippers is distinguishable, of course, in that the trial court there had not yet ruled on the merits of the demurrer when plaintiff voluntarily dismissed its action. In such a case, the rationale of Goldtree[29 Cal.3d 787] favoring early termination of litigation...

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